Appellate Insights

Appellate success only sometimes results in a final judgment in the appellant’s favor.  Very often, the best-case scenario is more of a “mixed bag,” where a win would mean more litigation, would impact only some causes of action, or could not undo some harm already suffered.  This requires careful evaluation of not only the likelihood of winning an appeal, but also the costs and risks that would follow that win.  For example, would a win mean–

• Remand for an entirely new trial?

• Remand for a first trial (if the initial loss came on demurrer or summary judgment)?

• Relief from an injunction, but no likelihood of repairing a relationship or adverse publicity?

Some of these forms of relief might also bring increased settlement leverage.  But the key point is that very few appeals have the potential to fully vindicate the appellant, and even fewer actually will.

► The practical message:  Deciding whether to appeal or settle after an adverse judgment requires objective advice about not only the appeal itself, but also about what happens if you win.