Disappointed by jury verdicts, it is not unusual for a client to ask about appealing. In advising clients whether this is in their interest, important points need to be made.
1. Absent unusual events at trial, wining an appeal is always an upstream paddle. No matter what the issue might be, there is always a bias to deferring to the trial court's decisions. In a recent appeal, my co-counsel remarked that a 50/50 chance of success was a strong case for appeal. Clients should never assume that the outcome will change on appeal.
2. People misunderstand what it means to "win" on appeal. Rather than winning the case, winning an appeal only means that the client has a right to a second trial. In golf terms, winning means the first trial is a "mulligan" and the client has the right to a "do-over."
3. For the lawyer, an appeal means more work. Should the appeal be successful, this means yet more work in a second trial. The client and the lawyer should discuss whether this is included, or not included, in the original fee agreement.
4. Appeals take between 1 and 2 years to be resolved. During this time, the client's life goes on while the cas is on hold.
Remember to play your card hand smartly.
