Should We Appeal?

The decision to appeal an unfavorable result is not one that should be taken lightly.  While it may seem as though an appeal would be the next logical step, a number of factors should be weighed in the decision whether to appeal.

It is expensive.

Writing a brief and preparing an oral argument are time-intensive endeavors.  First, drafting an appellate brief requires a careful analysis of the all the documents filed with the trial court and a review of the transcripts of any hearings or trials.  In some cases, the trial-court file is quite voluminous.  Also, appellate courts will afford the case a great deal of scrutiny, requiring the attorneys to conduct legal research to ensure that their arguments are backed by ample, supportive authority.  Finally, appellate courts often have strict rules governing the substance and format of the briefs that attorneys file, meaning that attorneys must be diligent in crafting a professional and persuasive brief.

It takes a long time.

A client can expect that it will take approximately one year to receive a decision from an appellate court.  This year, for example, the South Dakota Supreme Court has been issuing decisions fairly quickly: approximately three months from the time that the Court hears oral argument or meets to discuss it.  But the case is pending before the Court for several months before that oral argument or meeting occurs.  While some cases are decided much more quickly (One South Dakota Supreme Court case was decided sixteen days after the Justice met to discuss it.), others can take much longer (Another case was decided nearly a year after conference.).  And, of course, if a reversal is obtained, then the case may need to be re-heard or re-tried before the trial court, meaning that the case will remain pending even longer.

It is public.

Most court filings and appearances are public.  However, in many jurisdictions, obtaining access to the court’s publicly-filed documents is not particularly easy, and, in some cases, a trip to the courthouse may even be required.  Some clients, especially in divorce or other sensitive matters, may not want the increased scrutiny that comes with an appeal, i.e. a live-streamed oral argument and published decision readily available on the appellate court’s website.  With either an oral argument or published decision, the court and the attorneys may – depending on the issues presented – discuss the facts of the case in great detail.  In an appeal of a child support decision, for example, the appeal would likely involve substantial discussion of the parties’ finances and income.  In deciding whether to appeal, the client needs to be aware that, while not all cases receive oral argument or a published decision, it is possible.

Reversals are hard to come by. 

An appellate court’s scope of review is limited.  At the appellate level, the parties are limited to arguing whether the decision that the trial court made was right or wrong.  The appellate court will not consider new evidence or hear new testimony.  Rather, the appellate court will review whether the trial court made was right or wrong, and appellate courts give trial courts a great deal of deference on a number of different issues, particularly on factual questions, evidentiary issues, many procedural questions, and family law matters.  While purely legal questions are reviewed anew – with no deference to the trial court’s decision, obtaining a reversal may still be a difficult endeavor.

The vast majority of cases are affirmed.  For example, in South Dakota, it appears that approximately 72.1% of cases are affirmed, and only approximately 13.5% of cases are reversed.  Unsurprisingly, cases that are decided through motions for summary judgment are generally more likely to get reversed because they often present largely legal questions.  And, by contrast, cases that are decided through a jury trial are less likely to get reversed.  Thus, while it is important to keep in mind that reversals are somewhat rare, the likelihood of a reversal does depend a great deal of the types of questions that are to be presented to the Court.  An experienced appellate attorney can help you choose and craft your appellate issues to afford you the best chance of success on appeal.

Questions?  Contact our Sioux Falls, Sioux City, or Omaha office today.