I’m Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park Florida.
Appealing a Court Decision
I want to talk for a minute about the appellate process and appealing a court decision. Most people you know when you watch courtroom drama on TV it’s always at the trial level. The witnesses are on the witness stand, the jury’s there.
Who wants to watch a TV show about somebody making a legal argument in front of a panel of judges? That’s what an appeal is. An appeal is nothing more than, “I think this trial judge made a mistake.”
Remember, trial judges are lawyers who decided they’d like to be a judge. Sometimes they were good lawyers, sometimes they were not good lawyers. Sometimes they’re experienced lawyers sometimes they’re lawyers who have almost no experience. So there’s nothing infallible about a judge and most judges will candidly tell you that. That they’re just another lawyer who’s trying to do his job.
An Appeal is Where You Think a Judge Ruled Incorrectly
So an appeal is when you have a situation where you think the judge has ruled incorrectly. If you go to the law library there are literally thousands of books of cases and everyone of those is an appeal. So there’s plenty of cases being appealed. There’s plenty of cases where someone believes fervently that the judge has made a mistake. And when he has it should be appealed.
An Appeal is Expensive and Takes Time
One of the problems with appeals is they’re expensive as most things in law are today there’s nothing cheap about doing an appeal. Especially if you are not a lawyer who handled the case at the trial level. Because not only are you going to do all the research and prepare the briefs but you’ve got to go back and study the case to determine what happened leading up to the appeal. So it’s an expensive proposition.
What Kinds of Cases Are Appealed?
What kinds of cases are appealed? All kinds of cases are appealed. There are different types of appeals.
Interlocutory Appeals
There used to be what we called interlocutory appeals and that was essentially anytime a judge made a ruling that you didn’t like you could file an appeal. If it was not the end of the case, it was an appeal along the way.
For instance let’s say that the attorney filed a request to get documents from the other side and they objected and the judge ruled no, you’re not entitled to those documents. And you think that the judge is wrong, that yes you are. That would be an appeal, but it’s not the end of the case it’s just an appeal of one of the issues along the way. And in the old days you would file an interlocutory appeal and get those things decided.
Well the courts were flooded and flooded and flooded with interlocutory appeals and many years ago back when I was a kid, they changed a lot of the appellate rules and they kind of did away with interlocutory appeals.
Final Orders and Non-Final Orders
They created appeals from final orders that’s like a final judgment or some order that at least as to some party ends the case. So that’s a final order. And then there are non-final orders, which when I was just talking a moment ago about the documents issue would a type of non-final order and they limited the types of non-final orders you could appeal.
It doesn’t mean that for instance in the example I gave, “well I lost there’s just nothing I can do about it, but I may have to wait until the case is completely over and appeal it.” And some one school of thought would say, “well that’s really not fair because it’s going to affect the outcome of the case.”
But I think that the people who write the rules and wrote those rules were working under the general premise that that seems like a big deal at the moment but in the end it’s probably doesn’t matter and it’s not going to get appealed anyway.
So you’ve got final orders and you’ve got non-final orders as the types of appeals.
What Percentage of Appeals is Denied?
Sometimes I’m asked, well what are the percentage of appeals where the judge, the lower court judge is sustained or overruled?
I often answer, “I don’t know and it doesn’t matter,” because every case is completely different.
There are cases that are appealed and you read the brief and you just go, “this is garbage. Whoever wrote this should be embarrassed because there’s no legal basis for what they’re doing at all. And I can only imagine how many appellate judges just can hardly stay awake reading briefs that make no sense and they make arguments that make no sense.
What Are Odds of Winning an Appeal?
So what are your odds of winning? You can’t look at any success or failure rate overall in the courts to determine whether or not your issue is a solid issue for appeal.
What you’ve got to do is you’ve got to get to a dependable attorney who’s going to give you a straight answer and not only is he going to give you his opinion as to what he thinks your chances are, he is going to tell you specifically why he holds that opinion.
They should be able to take you to particular cases and say, “all right, the judge did A. Here are cases the same as or similar to yours where the courts are ruling that you can’t do that or that’s wrong. And they ought to be able to take you to those cases and have an explanation for you as to how they’ve derived their opinion. And if they can’t either don’t appeal, or go somewhere else.
Because I think that that’s a fundamental thing that everybody needs to know is, what is my issue and what are the strengths and weaknesses of that issue in my case. What happened to your next door neighbor or the guy down the street or some case you read about in the newspaper means absolutely nothing.
No Case is Ever Like Your Case
Because I guarantee you that there are things that can be fundamentally different when someone says “Oh, I had a case just like that.” Well, no they didn’t. I guarantee you that there was always something that was different. So you need to sit down with somebody and you need to go through the process.
How Much Does an Appeal Cost?
Now you’re probably going to spend a couple of thousand dollars going through that process to find out whether you have a legitimate appeal or not. And I think that it’s money well spent.
An appeal can easily cost you fifteen thousand dollars plus and it’s probably going to take a minimum of six months to get it decided. So it’s a lot of money, a lot of time. And if you spend a few dollars up front to get a very serious analysis of whether or not you have what we lawyers would call an appealable issue is money well spent.
So if you’re looking at the possibility of an appeal, approach it seriously don’t just take the sort of self-righteous indignation of an attorney who says, “oh the judge is just—how do you say it politely—not ruled for you very favorably and maybe has taken a harsh approach towards you. And we all know there are other ways that we could say that but we won’t right now.
So don’t get caught up in the emotion, get a thorough, intellectual, objective analysis of the legal issue that you’ll be appealing.
Again this is Eric Lanigan of Lanigan and Lanigan attorneys in Winter Park Florida.
