Lubbock, Amarillo, Midland, Odessa & Abilene TX Appeals Attorney
LOSE OR WIN – HOW DOES AN APPEAL FIT IN?
Truth be told – you cannot win them all. If a lawyer tells you otherwise – head for the nearest exit door! So what happens in a Texas Court if the Judge or Jury decides against you in a civil case? A far more pleasant inquiry is – what should you do if the losing side in a court case appeals your favorable judgment to a higher court? Should you file an appeal or not? Here are a few pointers to consider.
1. Should you Appeal an Adverse Judgment?
All good things and otherwise come to an end – lawsuits included. Let’s say you hire a law firm who played every card you gave them and still came up short. Jury or Judge finds your company or yourself are liable for say – $100K. Should you appeal this determination? It really comes down to the strength of your case and, of course, dollars and cents. As to the former, the court system is not perfect and big mistakes happen. That’s not a surprise given that we are dealing with human beings who can reach an incorrect decision. Of course, the devil is in the detail as to what “incorrect” means. If the jury or judge considered all of the facts and properly applied the evidence to the law – the decision will likely stand even if you and your attorneys are not thrilled with the result. The key determination is for you and your lawyer to have a frank discussion as to whether one of two factors occurred which would lend credence to an appeal: The first is whether the trier of fact (jury or judge) was “clearly erroneous” in their conclusion. Although the standards appear to be complex, it essentially boils down to whether no reasonable juror or judge could have found against you (or your company) in the litigation. That’s a very high bar. However, in happens, particularly in complex cases where the evidence is in dispute or experts radically differ on their conclusions. It could also happen if the judge makes a legal error with regard to letting in certain evidence which would otherwise be improper (inadmissible).
The second factor is usually easier to prove and relates to whether an error of law occurred by the Court. That argument is easier to make because the appeals court applies what is known as the “de novo” standard. That means, it can look at what the court did from beginning to end and is not limited to any standard other than whether a mistake in the application of the law to the facts took place. Given the complexity of the law – there is usually an argument that can be made – but not always. That said, I believe that clients should ask their attorney to rate the probability of success on a 1 to 10 scale – 10 being the best possible outcome. If you get a 4, best to lick your wounds and move on. If the dollars are high enough a 5 score might provide sufficient justification to move forward. After that – there is a better justification for launching the appeal and hopefully getting the lower court decision reversed.
2. Are My Assets Safe During the Appeal?
No! That will surprise most folks but unless you put up a money bond (in most instances), the judgment creditor can file the judgment against you or your company in the land records and seize your assets. That can result in horrible consequences from the notification to your banks to attach your accounts to the foreclosure of property not subject to the homestead exemption. The problem is that most banks will not post a bond unless you deposit or borrow monies equal to the amount of the judgment. If you are not liquid enough for this – the appeal will not help you because your assets will be gone before the appeal is heard.
3. How long does an Appeal take?
It depends on a lot of factors including the backlog in the court where your matter is pending, complexity of the case, or even time of year. Summertime, for example, is usually not a good time to get a trial date as judge and lawyers are on vacation. I tell clients that a few months is an optimistic time frame for a determination regarding the appeal. I have been involved in appeals that take considerably longer.
4. Can the Appeals court consider new evidence or fact?
Nope. What’s in the file goes on up. However, the appeals court could decide that certain evidence should be presented to the trial court and send it back for Round 2 which is called a remand.
5. How about when you win and the other side appeals?
That’s a much better place to be! Let’s say you get the 1M judgment and the losing party files an appeal. In 9 out of 10 cases you “move on up” to the higher court and defend the trial court judgment in your favor. Statistically, it is a much higher probability of the appeals court upholding a trial court decision than reversing it. I would go for it and also consider seizing assets if a bond is not posted.
6. So you lose at the Appeals Court – what’s Next?
Go up to the next level – subject to advice from your appeals attorney. In Texas state court actions, you go up on appeal from the District Court to the Court of Appeals and then on up to the Texas Supreme Court.
7. So you lose before the Texas Supreme Court – what’s Next?
Unless your lawyer has come up with a “federal issue” to raise before the U.S. Supreme Court – I’m afraid your appeals options are over. Time to move on.
8. What about attorney’s fees?
The prevailing party gets paid attorney’s fees from the losing party. You want to make sure that you have a strong case before taking the matter on the appeal route.
Filing an Appeal is always an option and the right choice in a minority of cases. Make sure your appeals attorney gives you a thorough cost/benefit analysis and ask that question as to how he – she – or it rates your chances. Keep in mind that most lawyers will not answer that question which does not mean that they are not good attorneys. Lawyers tend to be conservative that way. However, the Moster Law Firm will give you its best best on the old 1 to 10 probability scale!