To Appeal or Not To Appeal

To Appeal or Not To Appeal

That is the question, is it not, if you went to trial and didn’t like the results? An appeal is the process by which a trial court’s decision in a legal case is reviewed. It is a request for a higher court to review and overturn a trial court’s decision. The purpose of an appeal is for the appellate court to correct errors made by the lower court, as well as to clarify or interpret the law.

The Process

The appeal process is often misunderstood by lay people. An appeal is not a re-trial or a new trial of your case. The appellate courts do not consider new witnesses or new evidence. There is no jury. Appeals are based on what is already in the record, meaning the pleadings, transcripts, and exhibits, although one of the arguments one might make on appeal is that certain evidence was improperly excluded from consideration by the trial court.

The appellate court (usually a panel of judges rather than a single judge, like your trial court judge) reviews what the trial court did or did not do. Many trial lawyers will not file appeals from their own trials but, instead, refer their clients to appellate lawyers, specialist counsel who work solely on appeals. In part, this is because new counsel can be more objective about the arguments made by the trial counsel and the results handed down by the lower court. It is also because appellate counsel are specialized in their work, which often has an entire set of procedural rules different from the trial court procedures most trial attorneys find familiar.

The Arguments

Appeals are usually based on arguments that there were errors in either 1) the trial court’s process or 2) the trial judge’s interpretation of the law. Many appeals are based only on the record and written briefs submitted by the parties’ lawyers. But there is usually a provision for oral argument if the parties request it, although such a request may not necessarily be granted.

Once an appellate court has made its decision, the opportunity for further appeals is rather limited. The losing party may appeal to the state’s or the federal jurisdiction’s next higher court, if there is one, or to the U.S. Supreme Court. However, review in these courts is discretionary and usually involves unsettled questions of law.

How To Decide (And How Much)

Before you decide to appeal a trial court’s opinion, it is important that you understand the purpose of the appellate court in order to gauge your chances for success on appeal. Like me, many appellate lawyers will tell you that their win/loss ratio is high, but keep in mind that we screen our appeals before we accept them so that we can feel confident that we (and our clients) have a good chance of winning.

Decide also if you can afford the time and money required by the extra process, as compared to your chances of winning and what exactly you might win. Your appellate lawyer should be able to offer you that analysis.

And what if the best you can get is a new trial? That may be too expensive a solution for your pocketbook.

Finally, you should also ask what the likelihood is of your opposing party countering your appeal with an appeal of his own. This is an important discussion to have before you commit to an appeal.

In many communities, you can resolve an appeal through mediation. If you need help negotiating how to resolve an appeal with grace and with respect, we can help. To see if our services might be right for you, visit us at Open Palm Law or email me at We are here for you, and for your family, during the stress of whatever change your family is going through!

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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