Why Appeals Fail Before Filing—and How Legal Teams Can Fix It

When a party receives an adverse judgment, the first question is often, “Can we appeal?” By then, however, many of the decisions that will shape the outcome of an appeal have already been made.

Appellate success is often determined by the decisions made months, or even years, earlier: which claims, defenses, and objections were preserved, what relief was requested, what evidence entered the record, and whether the trial court had a meaningful opportunity to address the alleged error.

For legal departments, the practical lesson is straightforward: appellate strategy begins at the start of litigation, not after judgment.

The importance of the standard of review

A disappointed litigant naturally may believe the trial court reached the wrong result. But for many issues, an appellate court may affirm even if it may have decided the issue differently in the first instance.  The applicable standard of review is key.

Pure questions of law, are reviewed de novo, meaning the appellate court affords no deference to the trial court’s legal conclusions. In general, these issues present the greatest opportunity for success on appeal.

By contrast, factual findings, evidentiary rulings, discovery decisions, sanctions, and case-management issues are typically reviewed deferentially to the rulings of the trial court. A trial court’s factual findings generally will be upheld on appeal unless they are plainly wrong or unsupported by the evidence, even if the appellate court might have reached a different factual conclusion in the first instance.  Likewise, discretionary determinations of a trial court, including evidentiary rulings, scheduling decisions, courtroom management, and many discovery matters, will generally be upheld on appeal unless the trial court rendered a decision outside the realm of reasonable choices.   

Thus, when evaluating whether to appeal, legal departments should identify the applicable standard of review for each issue and analyze the likelihood of success under those parameters.

Build the appeal from day one

Appellate courts generally will not consider arguments that were not first presented to the trial court.  Counsel must make timely, specific objections, clearly state the legal grounds, present the issue in a manner that gives the trial court a meaningful opportunity to address it, and obtain a ruling.  They also must take care not to waive that argument elsewhere in the litigation.

Consider embedded appellate counsel

One way that legal departments can get ahead of these issues is by including appellate counsel on the trial team, or at least engaging appellate counsel before the trial court loses jurisdiction. Appellate lawyers are often viewed as specialists who enter only after final judgment. By then, however, it may be too late to ensure that issues are properly preserved and postured for appeal.

Embedding appellate counsel throughout a case may make the most sense when the financial or operational stakes are significant, an appeal is likely, the case presents novel or unsettled legal questions, or a key ruling could affect the company beyond the immediate dispute. Appellate involvement also may be valuable at particularly consequential stages, such as dispositive motions, class certification, preliminary injunction proceedings, trial, and post-trial briefing.

For more routine litigation, legal departments need not add another lawyer to the team for the life of the case. A more limited engagement can provide many of the same benefits at a lower cost. Appellate counsel might conduct a preservation review before trial, evaluate jury instructions and proposed verdict forms, advise on a significant interlocutory ruling, or review post-trial motions and appeal deadlines. The goal is to match the level of appellate involvement to the risk and complexity of the case.

Whether engaged throughout the litigation or at targeted points, appellate counsel can help frame dispositive issues, review proposed jury instructions and transcripts for preservation concerns, identify necessary proffers, assess interlocutory appeal options, ensure that objections and arguments are properly presented and ruled upon, confirm that all aspects of the case needed for an appeal are included in the record, and assist with post-trial motions.

Earlier involvement also gives appellate counsel a head start in understanding the facts, procedural history, and legal issues if the case ultimately proceeds on appeal.

Account for fees, remedies, and appellate economics

The economic considerations of an appeal are not limited to the judgment amount.

Appeals can be expensive. Properly litigating an appeal requires substantial time devoted to analyzing records, conducting research, developing strategy, preparing briefs, and where applicable, preparing for oral argument. In addition, a party looking to appeal a money judgment may be required to post a significant suspension bond, which can involve substantial costs. The delay associated with an appeal may also increase the amount of post-judgment interest owed. Further, fee shifting provisions can apply to fees incurred on appeal, leading to a potentially higher award or liability for attorney fees.

In addition to chances of success, these financial considerations should factor into the decision to pursue an appeal, accept the trial court’s judgment, or seek to resolve the matter through another avenue.

Appellate strategy starts early

By the time a notice of appeal is filed, many of the issues that will shape the appeal may have already been established. Appellate strategy is not a separate phase of litigation, but an integral part of effective trial strategy. Well before judgment, legal departments should work with outside counsel to identify key appellate issues and make sure they are properly preserved. Doing so helps position the case not only for success at trial, but also on appeal.

This “Day One Appellate Checklist” can help legal departments and trial counsel build that discipline into the case from the outset:

• Identify the legal issues most likely to determine the outcome and the applicable standards of review.
• Anticipate significant rulings that could warrant an interlocutory appeal or affect the company beyond the immediate case.
• Establish who will monitor preservation issues, including objections, offers of proof, jury instructions, and adverse rulings.
• Develop a plan for creating a complete record, particularly when evidence may be excluded, proceedings may occur at sidebar, or exhibits contain confidential or technical material.
• Calendar all appellate and post-trial deadlines, including those that may arise before final judgment.
• Revisit appellate considerations at key stages of the case, such as after dispositive motions, before trial, and following major rulings.

Not every case requires a formal appellate plan at the outset. However, even a brief discussion of these questions can help the legal team identify potential appellate issues before the opportunity to address them passes.