Appellate Insights

Most lawyers know that an “appeal is not a do-over.”  But it’s crucial to understand just how fundamentally different the legal process is.  In trial court, the questions are: “What happened, who is credible, and what, if any, remedy is available?”  On appeal, the question is far more limited:  “Is this one of those rare judgments that resulted from prejudicial error?”  Here’s what that means:

• Presumption of correctness.  Appellate courts assume the trial court judgment (or appealable order) is correct.  For that reason alone, the chance of reversal on appeal is never greater than 50% and usually much lower.

• Error plus prejudice.  Appellants must show not only error, but a probability that the error affected the outcome.  The system aims to provide one trip through the trial court in each case, and litigants are not entitled to a perfect trip.

• The factual record is fixed.  Appellate courts will almost never consider evidence that wasn’t before the trial court, and will not revisit credibility determinations.

• Standards of review drive outcomes.  A handful of established “standards of appellate review”—some of them very deferential—govern how the court will evaluate each argument.  This should heavily influence not only argument-selection for appeal, but also whether to appeal at all.

►  The practical message:  As a case moves from the trial court to the appellate court, counsel must account for these profound changes in the landscape when devising a cost-effective strategy that protects clients’ interests.