So You Want to Appeal

You say you were in court.  You represented yourself.  Maybe you had a lawyer.  You lost.  You come to see me and say you want to appeal.  Well...

Most people have a misconception about an appeal.  The scope of an appeal is determined by the type of case that is being appealed.  In most cases, an appeal is NOT an opportunity to have the case heard a second time to see if the appeal court will make a different decision.  In most cases, you cannot introduce new evidence on the appeal.

An appeal court looks at the evidence from the trial, which is made of transcripts of the evidence of the witnesses, the transcript of the judge's reasons and the physical evidence which were entered as exhibits.  That's it.  The arguments and submissions of the lawyers are not included.  The appeal court does not get to see the witnesses to assess their attitude and credibility.

Most of the time, an appeal is an argument over whether the judge made a mistake.  In some ways, appeal work is very attractive for lawyers.  The evidence has already been introduced at trial, so there are no concerns about hearing evidence that is a surprise.  We take a file where the facts have all been decided.  It is simply an issue of whether the decision is supportable . 

The appeal court does not look at the evidence and make a decision that it thinks is right on the facts.  The test for an appeal is this: Can the decision of the trial judge be by the evidence?  In other words, the appeal judge may have decided differently, but if the trial judge had the evidence to back up her reasons, the appeal fails.

Here is another problem with appeals: as the appeal judge does not get to see the witnesses in the stand, any findings that the trial judge makes on credibility are virtually untouchable.  So, if the trial judge did not believe your testimony and believed the other side, the appeal court will do the same. 

Many clients who represented themselves at trial come in with the expectation that they can hire a lawyer and go back to try to do it better a second time.  In fact, when you come to see me, the facts and evidence are out of my control at that point.  All I can do is see if the judge made an error.  I can't normally go to court and ask the judge to reconsider, based on new evidence that you forgot or did not think to introduce at trial.

Here's the worst part: it is often more expensive to argue an appeal than it is to argue a trial.  Clients that could have hired a lawyer at trial, but didn't, now hire a lawyer, at greater cost, to argue an appeal where the appeal is harder to win than the original trial.

These are situations where hindsight is 20/20.  They also prove what lawyers say all along: it is cheaper to hire a lawyer to help you before you get in trouble than to hire one to clean up after the trouble has happened.