Appeals

Appellate work is its own specialty, and appeals are far too important to entrust to a trial attorney with little or no appellate experience, even a spectacular one.*

I have authored a number of civil and commercial appeals, including commercial arbitration, that prevailed in the Illinois appellate courts, the California Second District Court of Appeal, and elsewhere. The California appeal was in commercial arbitration and prevailed on a nonbinding arbitration clause, the first one in that jurisdiction to succeed absent binding arbitration. One of the Illinois judgments, a brief I coauthored on behalf of ousted minority shareholders, successfully defeated an appeal by one of the world’s largest energy corporations. Workers’ compensation is one of the toughest areas of the law for reversal of prior administrative rulings, and my appellate briefs have prevailed twice there.

Still, if you have a civil case to appeal, your chances are about one in five (depending on the jurisdiction) of prevailing. That said, the denial rates are padded by the fact that many appeals should never have been made; additionally, they are often handled by attorneys who have no business writing appeals; and, finally, even appellate lawyers sometimes miss the one distinguishing feature in their case that could have moved the needle to the other side.

While the research and drafting of the appeal, preceded by a close examination of the entire record, forms the brunt of the time and expense, there are other expenses as well, such as the transcript, and you should count on a simple, single-issue appeal costing around $12,000-$15,000, with no guarantee of prevailing. If the appeal is complex with multiple issues, it could be far in excess of that, especially if oral argument is requested and granted.

Likely nothing in appellate law is more determinative of a case’s fate than the standard of review. An attorney handling an appeal without looking first and foremost at the standard of review and if it can be challenged is wrong already. Even if challenge is not possible, comprehensive knowledge of the governing standard and a granular grasp of the exceptions and latitudes carved out within that standard is crucial to success. I have successfully argued for a de novo standard of review.

Nearly as important is the extent to which the appellant either preserved or waived its right to appeal a key issue or point of law. Many employers, for instance, are stunned to learn their carefully crafted arbitration clause won’t be enforced by the court because they litigated before that court first—or even defaulted.

In light of all the above, firms are discovering the immense outcome rewards that can be reaped from utilizing an appellate attorney’s advice in the earlier stages of a case—when it is first brought and then in preparation for trial and when the case is tried. I offer consultative services for firms in this position where sought.

Appellate brief writing is the highest calling and greatest satisfaction I have experienced as an attorney—even more so when the ruling is in our favor. If you have an appeal you believe has merit, you will find in me not only a passionate advocate of consummate skill in the art, but someone who loves doing it.