Tag: notice of appeal

Another reason to retain an appeals attorney early in the process

Orders versus judgments? When and what to appeal?

As an appeals lawyer, I am occasionally contacted by a trial lawyer on or near the last day to file a notice of appeal, anxious because her or she is uncertain whether a particular order or ruling is appealable. In these cases, the order is in hand, the time to file the notice of appeal is about up, and a judgment has not been entered yet. The trial lawyer’s question is usually something like this: Do I file a notice of appeal from the order, or do I wait for a judgment to be entered? This is no time for uncertainty. If you wait for a judgment to be entered, the time to appeal the order will have passed, and if it turns out the order was the thing to appeal, you will have lost your chance to do so.

When and what to appeal? – the source of the problem

Generally speaking, in both state and federal courts, a notice of appeal is often due within 30 days after entry of a judgment. Appellate lawyers know, however, that depending upon the circumstances of each case, there are shorter and longer periods of time to file a notice of appeal, so each appeal deadline must be independently evaluated and verified. Further complicating matters is the fact that sometimes there will be no judgment and, in these cases, the appeal will instead be taken from an order. This may occur, for example, when an order affects a substantial right and effectively determines an action so as to prevent entry of a judgment. This is just one example. There are many more, too numerous to list here. There are also important differences between state and federal appellate practice. The important thing to know is that often, much time, money, and grief can be saved by taking early action to set the stage for your appeal, just another reason to retain an appellate attorney as soon as you suspect you might need an appeal.

As an appeals lawyer, here is one way I avoid the problem

Time permitting, in close-call cases, when it is uncertain whether the appeal will be from an order or a judgment, I will recommend that the trial lawyer pursue entry of a judgment within the appeal period of the order. Then, with both an order and judgment in hand, I can file a notice of appeal from both documents. This approach ensures that both the order and judgment are appealed, eliminating the need to file a “precautionary notice of appeal” from the order because time is about to run on an appeal from the order. This approach only works, however, when there is time to pursue a judgment within the appeal period for the order. This approach will not work when time is up to appeal from the order, yet another reason to retain an appeals lawyer as soon as you suspect you might need an appeal.

When in doubt, protect your right to appeal

Sometimes the decision to appeal a verdict or judgment is an easy decision. In anticipation of an appeal, trial lawyers will often make a “record” in the trial court proceeding. Other times, when the legal issues are novel or complicated, both the parties and the trial court understand that the losing party will likely appeal the loss. In these cases, the decision to file an appeal – or correctly stated, the decision to file a “Notice of Appeal” – is a relatively easy decision. Other times, however, the decision to appeal is more complicated, and the time remaining to make such a decision can run quickly.

When time is short – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted days before the appeal period will run. In these cases, there is not enough time to evaluate the merits of the appeal. In order to protect your right to appeal, it is sometimes necessary to file the Notice of Appeal and then sort out the legal issues in soon afterward. If the decision to file a Notice of Appeal turns out to have been the wrong decision, the appeal may then be dismissed. In these cases, where the legal issues are sorted out after the Notice of Appeal has been filed, it is necessary to act quickly, to ensure you have a basis to appeal.

When “appealability” is uncertain – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally contacted because it is unknown whether a particular document or ruling may be appealed. In close-call cases, when time is short, it is often necessary to file what I sometimes refer to as a “precautionary Notice of Appeal,” to protect the potential right to appeal. Immediately thereafter, it is necessary to resolve any legal issues regarding whether the document or ruling is appealable, as these same issues will no doubt be spotted and raised by staff lawyers at the Court of Appeals, or by the opposing appellate lawyer. In those cases where the doubt cannot be satisfactorily resolved, the next step may be to file a motion to determine jurisdiction, to obtain the court’s determination as to whether the particular document or ruling may be appealed.

When the merits of an appeal are unknown – file the Notice of Appeal to protect the right to appeal

As an appellate lawyer, I am occasionally asked to provide an independent assessment as to the likelihood of success on appeal, before the period to file a Notice of Appeal expires. This is doable in some cases, where the issues (claims of error on appeal) are known in advance. In other cases, if the trial court record is large and the basis for the appeal uncertain, it will again be necessary to file a Notice of Appeal to protect the right to appeal. The independent assessment will follow soon after, after transcripts, exhibits, etc., are gathered and reviewed. In one such case, I had to advise a family that had lost at the Oregon Court of Appeals that I had no idea what I could do to help them, other than file the Notice of Appeal, gather the record, and start work – if we had a basis for the appeal, we would go forward; if not, we would dismiss the appeal. Indeed, we had a basis to appeal. Sometime later, in a unanimous 7-0 opinion, we won a reversal from the Oregon Supreme Court. The point is that occasionally it is necessary to file a Notice of Appeal, to protect the right to appeal, and then sort the issues immediately thereafter.

Settling your case on appeal

Is it possible to settle a case on appeal, after losing at trial?

Yes, it is sometimes possible to settle a civil case on appeal, even after losing the case at trial. If you have a one or more meritorious issues to claim as error on appeal, and there is still time to file your Notice of Appeal, your case may have significant settlement value. If you are uncertain about appealing, have an experienced appellate lawyer evaluate your potential appeal, both for its merit and its settlement value. And do not delay – the time allowed to file a Notice of Appeal is often short.

Do the legal issues matter?

Yes, the legal issues do matter. Some cases, for example, are simply not capable of settlement, take for example cases involving larger legal or political issues that reach beyond the parties, or child custody disputes, or any case where the parties are too closely or too emotionally involved. These cases can be very difficult, if not impossible, to settle. On the other hand, many business or transactional disputes are quite capable settlement, particularly if the parties are business-minded or pragmatic. The best chance of settling an appeal occurs when there is one or more meritorious issues on appeals, both parties are pragmatic, and both parties want out of the litigation.

How best to proceed – a few practice tips:

The initial assessment is important. An experienced appellate lawyer, one that is also experienced with settlements, will be necessary to evaluate both your chances of success on appeal and the likelihood of an appellate settlement. In some cases, an experienced appellate lawyer can recommend when to stand firm, or when to settle. In other cases – the close-call cases – an experienced appellate lawyer can make recommendations in the alternative, enumerating the pros and cons for each recommendation, enabling you to make the best decision in your unique circumstance. In the worst of cases, an experienced appellate lawyer will know when you have little chance of success on appeal, and will tell you as much, i.e., that anything gained through settlement will be more than will be gained by taking up the appeal. An experienced appellate lawyer can guide you through this process.

Avoid spending too much time on the merits of an appeal. A discussion with the other side about the merits of an appeal can be helpful at the start, but these discussions can quickly become counter-productive. When settlements occur it usually because the parties were able to temporarily set aside the legal fight and focus on the pragmatic benefits of a settlement for both sides. A experienced appellate lawyer, one skilled at both appeals and settlements, can guide you through the analysis and the negotiations.

Avoid trying to settle your own case. The parties to litigation can rarely settle an appeal on their own, usually because the parties are too closely involved. Experienced trial lawyers that remain objective throughout the litigation can be well suited to negotiate settlement, but sometime they are also too closely involved. In almost all cases, the addition of an appellate lawyer to the team, an appellate lawyer that is also experienced with settlements, is most helpful. In a future post, I will write about the appellate settlement program.