So much time, money and especially emotional energy go into any kind of court case, that it's natural to have a sense of injustice, being wronged, and wanting to prove the injustice to a higher authority when you lose. Civil business litigation, family cases, criminal trials, small claims, they all have winners and losers.
Most judgments can be appealed up to at least one higher court. Sometimes you've got two or even three levels of appeal available. But should you?
Top 3 Reasons You Should Appeal
1. There was a Very Clear Error of Law in the Trial Judgment
All judges and hearing officers are human. And humans make mistakes. If judges were perfect, there would be no need for an appeal infrastructure as a safety valve for decision makers having an off day.
Starting out my legal career, I used to imagine that you had to get very, very creative to dream up viable grounds of appeal, because most trial judgments would be solidly reasoned. I couldn't have been more wrong.
Sometimes the facts and law really are against a party, but the decision maker fails to adequately explain how she got to her decision. At other times, the decision fundamentally miscomprehends the law or facts, so that you’re effectively into miscarriage of justice territory. You don’t need to be an unjustly imprisoned lifer to have a miscarriage of justice.
How often such errors are made is a matter of conjecture, since practically speaking many people won’t bother appealing after a long trial process has taken its toll. But I can tell you from statistics from the Court of Appeal for Ontario and the Tax Court of Canada that approximately one in four civil appeals succeeds in some way, and about one in three criminal appeals finds some success. Those really aren’t bad odds if a lot is at stake, and can probably be improved upon with an experienced appellate lawyer since a significant number of appeals are advanced by the self-represented.
2. An Appeal is Way Cheaper than Paying the Judgment
Its unfortunate that in our society a lot of things come down to money, but that's just the way it is. The reality is that an appeal that will cost you $25,000 in fees against a $3 million judgment is far more justifiable than an appeal that will cost you that same $25,000 in fees as compared to a $40,000 judgment against you.
I have found that litigants often fall into the age old trap of "throwing good money after bad." That's because they've spent a lot of money on trial litigation, perhaps fighting over something that wasn't worth all that money to start with, and then feel compelled to keep spending money on a lost cause on appeal that still isn't really worth it.
The appeals being justified because they cost a fraction of judgment costs theory also applies to court costs awarded at trial. Even if you perhaps should have lost, but then have $200,000 of the other party's legal fees awarded against you on top of that, you might need to appeal just to fight the costs award. Sometimes by merely filing the appeal, you may gain enough leverage to negotiate a much lower level of costs with the opposing party, or even to have them abandon the costs in exchange for you not further fighting the judgment.
Once I went before the Ontario Court of Appeal to overturn an unjustified family court contempt finding that should have never been made against my client. When I was contemplating taking on the case, I initially wondered whether it was worth it for my client (and me) to go to the highest court in Ontario to fight what was somewhat of a symbolic order (because it's very rare for anyone to go to jail over a contempt finding). But when I learned there had also been a $20,000 costs award against my client out of the contempt motion, I became convinced of the merits of the appeal. We wound up successfully overturning the contempt judgment, and wiping out the costs award, thereby mostly paying for the cost of the appeal.
3. Your Were Fighting for Something Priceless at Trial
Of course there are some trial issues that aren't quantifiable in monetary terms. Issues that if you lose, are worth a continued fight, regardless of the cost. Your freedom and your children may be the two most obvious categories.
However, courts hate frivolous appeals. You need an arguable case. An experienced appeals lawyer may be able to come up with at least arguable grounds for you, even if winning that argument is an uphill battle. You absolutely can't base an appeal solely on not liking the trial level court or tribunal result.
And an appeal isn't a new trial. It's tough to introduce fresh evidence at an appeal - you'll usually need to bring a motion. An appeal isn't just another kick at the can.
So if you're truly fighting over something priceless, you're better off investing resources at trial than on appeal. I'm often approached by litigants who were self-represented at trial, got hammered (perhaps quite unjustly), and now are thinking of hiring me to "fix" the situation. Sometimes I'm able to do that, but you'll never have as good of a shot at winning on an appeal as you did at trial. Often the best result from an appeal is another trial
Top 3 Reasons You Shouldn't Appeal
There may be a certain emotional peace to a case finally being over, even if you lost. Appealing will just drag things outs.
2. The Trial Result Really Wasn't That Bad
While you might be outraged about a trial result, on further examination sometimes it really isn't all that bad. It may be a criminal trial where you were convicted, but you weren't sentenced to jail. It could be a family trial where you didn't secure sole custody of your children, but you also didn't lose custody, and will wind up with them 60% of the time, plus you did get spousal support in your favour. Or perhaps it was business litigation where you and your former business partner were suing each other, and the court found that neither of you had proved your claims.
You'll have to carefully assess how "bad" is a bad that you can't live with coming out of a trial court; that will be a very personal assessment. For instance, for one person who has a high level security clearance, the criminal conviction without jail might lead to a permanent loss of employment and career, whereas for another who is self-employed it might just not really matter much.
You must especially guard against your appeal against a judgment involving partial success triggering a cross-appeal by your opponent, thereby potentially challenging even that partial success.
3. You Can't Really Afford It
The cost of an appeal is not just in the appeal, but also in paying the fees involved in a court process that might continue after the appeal. If you win the appeal, your opponent could seek to appeal the appeal. If you win the appeal, the case might be sent back for a new trial leading to further expense. Losing the appeal may mean paying the other side's legal costs.
Often the best strategy for figuring out whether you should or shouldn't appeal may even be to make that determination on a preliminary basis early on in the trial phase of your case. Then you won't be rushed in later making a final decision on an appeal. Yes, you'll have to assess the judgment you received, but at least the appeal pros and cons will already have been considered.