Appellate Insights

If you expect to take a case to judgment, preserving the right to appeal is vital.  The same may (or may not) be true if you’re settling subject to decisions yet to come from the trial court.  Here are some ways that even experienced lawyers and sophisticated clients can and do forfeit the chance to appeal—along with tips to help ensure you don’t give up more than you intend.

• Missing the appeal deadline.  In California, it’s normally 60 days from notice of entry of judgment or an appealable order, but there are exceptions.  And the method of service does not extend the time.  Missing the deadline by even one day means irremediable forfeiture.
• Bargaining away the right.  A recent case holds that one sentence in an agreement settling a class action expressly waived the right to appeal the court’s allocation of attorney fees among the plaintiffs’ firms.  When the order arrived, a multi-million-dollar dispute ensued, but—appeal dismissed.
• Accepting the benefits of a judgment.  So long as the party’s actions are voluntary, clear and unconditional, acceptance of the benefits of a judgment waives the right to appeal the judgment.  But there are exceptions.

►  The practical message:  Calendar conservatively.  Consider the import of every line in a settlement agreement, no matter how long or short.  And scrutinize any planned action on a judgment for potential appeal waiver.

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