Appellate Attorney Evaluation
"I lost my case, and am considering an appeal. Does it make sense to seek the opinion of a lawyer other than my trial counsel?"
Ciyou & Dixon, P.C. appellate attorneys are sometimes called upon to help evaluate the viability of a potential civil appeal. Obviously, any given attorney’s reasoned opinion about the legal theory and chances of success on appeal may not pan out. The three judges assigned to the appeal might simply analyze differently and decide the case.
Nevertheless, appellate consults and evaluations are effective tools Readers might wish to consider. In fact, an appellate consult of some depth may accomplish several important matters.
Most broadly, an appellant has typically lost his, her or its case in the trial court and the consult allows a different set of legal eyes to independently view the case with no preconceived notions and in a fresh context. Even the most skilled appellate lawyers often vastly differ on how to best handle a case. Every case is different.
If there is consensus between trial and appellate attorneys about the case, to appeal or accept the trial court’s decision, that should be carefully considered and weighed relative to the impact of the judgment. In other words, if trial and appellate counsel agree the appeal is unlikely to succeed and the trial court’s decision reversed, it may make financial sense to stop litigating.
Typically, the appellate attorneys at Ciyou & Dixon, P.C., see agreement between trial counsel and our appellate advice where the case turns on the facts. For example, if the case is won or lost by the credibility of competing witnesses’ testimony, this is not a good case for appeal. The reason is obvious to lawyers, but less so to litigants.
Trial court (or juries) are in a unique place to look at a witness and judge the merit of the testimony. A great deal of this weight comes from the demeanor of a witness, such as if he or she is happy or sad, nervous, exuberant. This does not come out on a cold record (the typed transcript of the testimony) in an appellate court.
For this reason, Indiana’s appellate courts give great deference to the trial court’s assessment of the factual evidence. Merely asking the Court of Appeals or Supreme Court to pick one witness’ testimony over the other is a hallmark of a case that will not have a statistical probability of success on appeal.
On the other hand, the appellate attorneys at Ciyou & Dixon, P.C., often find viable and powerful questions of law to raise on appeal to challenge a trial court’s decision. Indiana’s appellate courts do not give any deference to trial court’s application of the law, such as if the trial court misapplies the law.
These cases are good appellate cases that should move forward, relative to the ultimate value of the case. Ultimately, however, an appellate evaluation should not be viewed as the be all and end all answer. An effective appellate lawyer will caution the real power of a case cannot be unpacked until the briefing is begun, after he or she has the transcript and evidence of the trial.
In addition to a fresh analysis and review of the case, and determination of whether the case issues are questions of fact or law, an appellate consult serves two other important purposes. First, it provides a level of comfort to allow litigants to make an informed and meaningful decision to discontinue litigation.
Namely, if the trial and appellate attorney both concur the appeal is unlikely to succeed, the valuable “second opinion” for the important decisions in life has been provided. Prudent people, including litigants, seek a second opinion or other advice before taking a defining step. Related if the appeal is not statistically viable, the litigant can avoid the attorney’s fees for the appeal and move on in life.
Second, if the appeal is to continue, the litigant has had a moment to meet, assess, and gain confidence in his or her appellate lawyer before heading down a completely different legal road. This is necessary to accept any decision of a higher court–to know your legal position was fully vetted and tried.
The appellate lawyers at Ciyou & Dixon, P.C., hope you, the Reader, find this information about appellate consults and evaluation helpful. The wise legal consumer, given that all litigation has trade-offs, always considers his or her case in the larger scope of personal or professional life. If you share our view, perhaps Ciyou & Dixon, P.C. is the right appellate attorney for you.