Tuesday, June 9, 2009

Through The Legal Looking Glass: How Appealing

In this day and age, where the court system is slowly devouring the other branches of government, it is important that people understand how appeals really work, because appeals are where law is made.

To that end, let us dispel a few myths about the appeals process.

Myth 1: You Have A Right To Appeal

Ok, this one is a bit tricky. Every state has trial courts and a Supreme Court. You have a Constitutional right to file an appeal to your Supreme Court, BUT you don’t have a right to be heard. Ooooh delicious. . . only lawyers could love that distinction.

However, some states have created an intermediate level of appeals court that sits between the trial courts and the Supreme Court. In those states, you typically have a right to be heard by those intermediate level courts.

The federal system follows the three layer model -- the trial courts are the District Courts (which sit entirely within a single state) and the appeals courts are the Circuit Courts of Appeals (which hover ominously over several states).

Adding confusion to the appeal issue, there are two ways to handle appeals. A handful of states allow you to appeal individual rulings by the judge as they occur, i.e. while the trial is on-going. The rest limit appeals until after the trial is complete.

Ever wonder why it takes so long to get through a trial in California? Because they allow appeals during the trial. Remember the OJ trial? The OJ trial would have taken about a week in most states.

Myth No. 2: Everybody Appeals

The case is over. Somebody won, somebody lost. But that guy lied, and you know it. So it’s time to appeal. Everybody appeals. . . right?

Actually, no. According to the Department of Justice, between 1988-1997, only 21% of verdicts in the federal courts were appealed. How can that be?

When a case ends, you have a verdict. In a criminal case, the verdict will include a sentence. To get that sentence changed or the verdict overturned, you have to appeal. So why do only one in five defendants appeal? Because often there is no basis for appealing or because the defendant is happy with the sentence.

You heard me. Just like I was ecstatic to hear the cop tell me that he clocked me at 72 mph, a full 30-some mph less than my car had been going, many criminals are thrilled to hear their sentences.

The average sentence for a felony is about five years. That’s the number the politicians will give you to prove their toughness on crime. But this is misleading. Convicts serve on average only 60% of their sentences before being released. Moreover, few sentences are what they appear. You know that guy who did that thing and got 100 life sentences? What you didn’t know, was that the judge ordered them all to run concurrently (at the same time). So he’s basically serving only one life sentence. But worse yet, what constitutes a life sentence varies from state to state and can be as low as ten years. Thus, 100 life sentences can become 10 years. Oh, you’re happy now. . . I can tell.

So why aren’t more civil cases appealed? In a civil case, the verdict will include an award of money. But that doesn’t mean the winner gets paid that amount. This is particularly true where the award exceeds the available insurance. It is the rare lawyer who will try to go after a defendant personally (unless they are a big company). So what really happens is that the parties will meet again after the trial and attempt to negotiate a settlement. In exchange for the loser agreeing not to appeal (which can be expensive, time consuming, and risky to both sides), the winner usually agrees to take something less than the amount awarded.

Myth 3: Appeals Are Usually Successful

Ok, so there are fewer appealing people than we thought. But those that do win all the time right?

Again, no. According to the DOJ, only 20% of appeals in federal court were successful, though the number is higher (34%) in state courts. This means that only 4-6% of verdicts will be successfully appealed.

How can that be? Because the standards used by the appellate courts are against you.

If you want to challenge a factual finding, you have to prove that the jury (if they made the finding) acted arbitrarily or capriciously. In other words, you need to show that no reasonable jury could have reached that conclusion. If the court made the finding, you need to show that the court’s finding was clearly erroneous. Never gonna happen.

Maybe you think the judge acted unfairly in excluding your key piece of evidence? To prove that, you normally have to show that the judge abused their discretion in making that ruling. This too requires a showing that the judge acted unreasonably. But worse, even if you can show this, you also have to show that the error prejudiced you at trial. And I assure you that appellate courts love to find most errors to be harmless.

Your best chance on appeal is to show that the trial court got the law wrong -- either in terms of a written decision (if the court rendered the verdict) or in the instructions given to the jury. Appellate courts will review the law without any deference to the trial court’s decision. That said, however, appellate courts will attempt to resolve appeals on the narrowest issue possible. Thus, while you may be right on the law, the appellate court will look for any reason they can to avoid saying so, and if the trial court goofed in allowing certain evidence to be heard and got the law wrong, the appellate court probably will decide the case just on the basis of the goof.

Myth 4: Winning on Appeal Means Winning the Case

Finally, you’ve won the appeal. So now you win the case right? Sadly, no. It is the rarest of cases where the appellate court declares one party the winner. Typically, the best you can expect is to get a new trial and an instruction to the trial court on what their error was.

Moreover, many appeals result in pyrrhic victories. If you’re appealing a sentence, you may only get an instruction to the trial court to reconsider the sentence in light of some new factor. If you’re appealing the dismissal of your case, you might only get an order to the trial court to make more findings. Indeed, many “successful” appeals result in nothing more than an order to the trial court to cross more t’s and dot more i’s.

Happy times.


patti said...

~banging head against desk~

note to self: stay out of the courts (add hospitals to this note) at all costs.

StanH said...

Well Andrew you express through your essay why attorneys and the legal system in general are held in such high regard. As a layman or also known as a mark/client to the legal profession, I have noticed when someone is convicted of a crime and the lawyers will rush to the microphones saying we will appeal, and time passes and nothing is reversed. It almost seems to me as a way for an attorney to save face in public, you know, it’s not over I really didn’t lose. It’s seems to be a rare case indeed that gets reversed through appeal.

AndrewPrice said...


Always stay away from the courts whenever possible. . . trust me!


You're absolutely right. Everyone seems to run to the camera and declare their intent to appeal, but few do -- and even fewer succeed.

But I think that the media-hype surrounding high-profile appeals tends to give people the impression that you can appeal anything, all the time, and that everyone wins on appeal. That's just not true.

One of the goals Lawhawk and I have in this series (and he will be writing the next one) is to separate the truth from the perception, so that you all have a way to understand what really happens as compared to what you're told.

Knowing that few appeals occur and fewer succeed, you should now understand why Sotomayor would only have been appealed a handful of times and why being overturned 75% really is a horrible number.

Also, the next time a politician talks to you about sentencing, you now know what he's not telling you -- that sentencing does not equal time served.

LawHawkSF said...

Andrew: How dare you suggest that my home state is overly-litigious? We are merely encouraging commerce by keeping the paper mills running 24/7.

Criminal appeals used to be more severely limited because Gideon v. Wainwright only said that a criminal defendant was entitled to free counsel at the trial level. Then some activist judges (and a few legislators) decided that wasn't good enough. They were entitled to free counsel on appeal as well. Avalanche of appeals! Public defenders (aka "counsel for the underserving") were now hired in droves to pursue criminal appeals. Perfectly good convictions were being reversed on highly technical grounds having to do with arcane procedural errors.

I am proud to say that the California Supreme Court was one of the earliest to reverse this trend. A very learned court (most of the time), the California Supreme Court was one of the leaders in establishing the "harmless error" rule. And it established some of the strongest rules for sanctioning attorneys and litigants for filing "frivolous appeals." We ain't all bad out here.

Writer X said...

Is it wise to be drinking a glass of wine as I read your column tonight, Andrew? :-) Please don't say you're going to test us on this stuff.

Seriously, I love your Reader's Digest version explanation. I always learn something, despite the wine, especially Myth #4. Thank you!

Skinners 2 Cents said...

I love reading these articles. It's always nice to hear how things really are once they've been washed of the Hollywood glitter.

This might be off topic but I've seen it mentioned by Andrew before what do you see as the most essential Tort reform. I'm pretty sure that's a legal term I've heard before but never what really needs to happen.

Individualist said...

So Andrew

You are saying that actual trial does not have the same "appeal" as the general public might want.

I know bad pun I can't resist it's in my nature.

How do the Tax Courts work into this. What are your thoughts on how those work

AndrewPrice said...

Writer X, thanks. Don't worry, no test.

Skinner, thanks. You're asking a HUGE question about tort reform that would take a lot of space to answer. Short answer though:

There many types/categories of tort cases (med mal, intentional torts, automobile collission, etc.). Each probably requires a different solution because each type has unique considerations.

In each case, though, you need to be careful to balance the interests of preventing frivolous lawsuits againt making sure that legitimately injured people are able to receive compensation for their injuries. Unfortunately, most tort reform advocates (left and right) are more interested in unbalancing the situation rather than balancing it.

If I had to pick two things that I think would help alot, I would suggest (1) shifting attorney fees to the winner, and (2) requiring a certification from the party's expert that there is merit to the suit before allowing the suit to be filed. I might also consider limiting punitive damages, but NOT non-economic damages, i.e. pain and suffering (as many states are doing). My experience with limiting non-economic damages has shown me that old people and people who are seriously hurt but who can still work simply can't find representation where non-economic damages are limited because the cases just aren't worth enough to get over the costs of trying the case.

Individualist, welcome. I've been reading your stuff and I really like what you're writing. I have been negligent about commenting though. My apologies.

Tax Courts are part of a whole separate system of "courts" within the government. These are specialized courts that deal only with a small area of law -- for example, tax claims, social security appeals, boards of contract appeals, and immigration.

The rules on these sub-courts are very different than normal trial courts because they aren't really "courts" so much as they are a form of agency-level review. You may have noticed that these judges are usually called "administrative judges" -- meaning "part of the executive, not part of the judiciary."

In many instances, the law requires people to go through these sub-courts either exclusively or until the entire agency process is complete (usually followed by appeal rights to the DC Circuit).

In terms of success rate, it depends a lot on the agency and the political winds. Social security can be very pro-plaintiff, but the boards of contract appeals are harsh. I have not practiced before the tax courts, but I hear that they favor the IRS.

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