If you have just lost a trial or a motion to dismiss and are contemplating an appeal, there are important considerations for you and your client to keep in mind. From ensuring that you comply with the relevant timeframes and procedures, to understanding the applicable standard of review and evaluating your chances for success, an experienced appellate attorney can guide you through the process.
As soon as the adverse verdict or ruling comes in, the first question to ask is, ‘what is the deadline for bringing an appeal?’ There are various deadlines throughout the appeals process, but the most important deadline is the first one. No later than 30 days after the decision being appealed is filed with the court clerk, a notice of appeal must be filed. With limited exceptions (such as if one of the parties to the case dies), this is a firm deadline and missing it can be fatal to your appeal.
HOW TO EVALUATE THE VIABILITY OF AN APPEAL
As soon as the 30-day clock starts to run (and likely even before), it is time to think about potential appealable issues and your chances of success on appeal. In some cases, the basis for your appeal will be obvious to you. Maybe the trial court or opposing counsel made a glaring error during the trial. However, in many cases the possible appellate issues will be far less clear. Moreover, as the lawyer who just lived through a trial, you may have tunnel vision, and the best thing you can do for your client is to bring in a fresh set of eyes to evaluate the viability of an appeal. Appellate lawyers bring a new perspective to a case, one informed by experience searching the trial record for any and all potential errors or issues to appeal. They are likely to see things in the record that trial attorneys are unable to see because they are too close to or too vested in the case, and, unlike experienced appellate attorneys, may not even know what to look for when analyzing a record.
In addition to identifying potential appealable issues, another consideration is determining the applicable standard of review. This is the lens through which the lower court’s decision will be viewed by the appellate court to determine its correctness or propriety. There are multiple standards of review, and your likelihood of success may be higher or substantially lower, depending on which standard is applicable. While there is some flexibility within the various standards of review (discussed below), knowing which standard is applicable is a critical consideration in evaluating the viability of your appeal.
WHICH STANDARD OF REVIEW APPLIES TO MY APPEAL?
The standard of review the Washington appellate courts will apply to your case will depend on the type of issue you are appealing, including whether your are raising an issue of law or of fact, and whether your appeal involves a decision by an administrative agency.
Substantial Evidence Test: In Washington, findings of fact are generally reviewed under the substantial evidence test, which looks at the factual record. However, if the facts are undisputed, the appellate court can apply the de novo standard.
De Novo Review: This is what is known as a non-deferential standard of review, in that it does not place weight on the previous court's finding. It involves an independent review of the evidence, and will be applied to issues of law, motions for summary judgment, and, at times, when the case involves mixed issues of law and fact.
Abuse of Discretion: This standard will be applied where the conduct of the court proceedings, which is generally left to the trial judge’s discretion, is at issue in the appeal. It governs rulings on most motions, objections, admissibility of evidence, and general conduct issues such as findings of contempt. Washington courts have stated that discretion is abused only where it can be said “no reasonable person would take the view adopted by the trial court.”
Arbitrary or Capricious: This standard generally applies to review of administrative decisions.
SHOULD I INCLUDE EVERY POSSIBLE ISSUE IN MY APPEAL?
While you may be tempted to include everything but the kitchen sink in your appeal, in the hope that something will resonate with the court, you should resist the temptation. The appellate courts are overburdened, and diluting your strongest arguments with less persuasive or minor issues may lose both the court’s attention and your credibility. Having to consider nondispositive, superfluous issues on appeal is one of the primary complaints from the appellate bench. Focusing on the one or two issues with the highest probability of success is the best approach.
As noted above, questions of law, reviewed on a “de novo” basis are statistically more likely to result in a reversal than issues of fact or court conduct, which will be reviewed under the more deferential “substantial evidence” or “abuse of discretion” tests. Therefore, your strongest appealable issues are often ones involving issues of law, rather than of fact or procedure.
OTHER CONSIDERATIONS ON APPEAL
Numerous other considerations factor into deciding whether to appeal. Appealing a case can be costly and time-consuming. In most cases the appellate process takes at least a year, usually more. There is also an emotional and mental toll that you and your client will pay by choosing to continue an already hard-fought, protracted litigation into the appellate courts. And appellate opinions are read by a far larger group than trial court judgments. Are you and your client prepared for the potential extra scrutiny of the facts of your case? These are but a few of the myriad other issues that should factor into any decision to appeal.
However, trial courts do make mistakes, and bringing an appeal may be the only way to correct judicial error. A successful appeal can provide a vindicating and satisfying resolution to your case. Working with an experienced appellate attorney, who can guide you and your client through the maze of appellate considerations, can help transform an adverse decision below into a favorable outcome on appeal.
How I Can Help You
If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.
The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.