« 6 More reasons Not to Appeal | Main | 10 Good Reasons Not to Appeal »

There are no meritorious grounds for an appeal.



2. Let’s say the plaintiff has obtained a judgment against the defendant. The defendant may be unhappy with the verdict, but there are no real judicial errors to challenge or prejudice to the defendant. The jury just didn’t buy the defendant’s version of events. The defendant may want to appeal just to gain some leverage in future negotiations or to delay payment.

Two problems: ethically I can’t file appeal on that basis. Nor can I file an appeal for the plaintiff simply to give him or her leverage to settle a case. The second problem is that pursuing an appeal for the wrong reasons – harassment, improper delay, bad faith, etc. – can open the door to sanctions against both the lawyer and the appellant.

Appellants and their attorneys may be subject to sanctions for pursuing an appeal that is “frivolous” or “taken solely for delay.”  (C.C.P. § 907; C.R.C. rule 8.276(a)(1).) While a client may be sanctioned for pursuing an appeal to harass the other party or delay the effect of the judgment, the attorney faces an additional ground: that the appeal has no merit, meaning any reasonable attorney would agree the appeal is totally and completely without merit. (Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) I am not interested in risking my license to file an improper appeal. In addition, my retainer agreement provides that I can withdraw if I discover the appeal has no merit or it is being pursued for an improper purpose.

3. The trial court indicates the appellant lacks credibility.

If the lower court’s order or statement of decision indicates the appellant lacks credibility, I am always reluctant to pursue appeals when the trial court has made it clear the appellant is not to be believed. While it is true the court of appeal does not engage in credibility determination, to me it is a bad sign. If the appellate court is waffling on an issue, I believe it will come down in favor of the party who has more credibility or even sympathy. It is rare that I have won an appeal when the appellant has been branded a liar.

4. The client doesn’t have enough money to pay for an appeal.

Most appellate attorneys are not big risk-takers and will want to get paid up front for handling an appeal. The conventional wisdom is to ask for a retainer large enough to cover the hours required to get the appeal on the road and file the opening brief. If the client fails to pay any more money, at least the attorney has been paid up to this step and may seek to withdraw before the closing brief is due or oral argument is scheduled.

Some appellate attorneys will take cases on a contingency basis.  If I am considering a contingency fee basis, I would prefer to represent the respondent. The odds are in favor of affirming the judgment, so there is a good chance of winning and getting paid. Of course, the contingency fee is usually at least three times greater than that of payment up front, to compensate the attorney for the risk and deferred payment, so the appeal becomes more expensive to pursue. If you are representing the appellant, the odds are against reversal, so you’d better believe in your client’s chances on appeal.  

Some clients are better equipped financially to handle an appeal.  If your client is saving cash for a child’s education or is already living on the edge, then maybe they can put that money to a better use. I don’t want clients to bankrupt themselves or borrow money trying to pay for an appeal.

Sometimes the cost of obtaining the reporter’s transcript is enough to end an appeal. When clients are on the fence about an appeal and money is limited, I ask them to get estimates from the court reporter to help with the financial decision.

More to come ..