When should you consult an appellate attorney?

By Micah S. Echols, Esq.

If you have prevailed in litigation and the opposing party does not appeal or you lost and you plan to pay the judgment entered against you then there is generally no reason to appeal. Otherwise, the proper inquiry is when, not if, you should consult an appellate attorney. The best time to consult an appellate attorney is sometime between when you suspect an adverse ruling and the oral pronouncement of the ruling. Once the written order is entered, the clock starts ticking on important deadlines to challenge the order. Even if you prevail in the district court, competent appellate representation is almost always necessary.

As a practical matter, some cases should not be appealed. For example, there is usually no reason to appeal a judgment where the attorney fees and costs incurred on appeal will be more than the judgment itself. However, if there is something worth fighting over, you should always at least consult an appellate attorney to consider your options on appeal. A common misconception is that only cases involving issues of first impression should be appealed. Appellate courts also serve the purpose of error correction and entertaining requests for emergency relief even before the conclusion of a district court case.

The purpose of retaining new counsel on appeal is usually not designed to replace the attorney who handled the litigation (unless you want to). Instead, appellate counsel will provide an outside perspective, ensure that appeal rights are preserved while the case is still in the district court, and act as lead counsel on appeal. Although an attorney inexperienced in handling appeals may be able to wade through an appeal, the advantage of hiring an appellate attorney is the experience you will receive. If you are defending an appeal filed by the opposing party, occasionally the appeal can be dismissed on technical grounds. If you are prosecuting an appeal, there are often arguments for expediting the appeal. In the district court, if a judgment or order is not properly challenged, it is possible to waive an issue on appeal. And, there are special rules for recovering attorney fees incurred on appeal against the opposing party. Unless necessary steps are taken, attorney fees are generally not recoverable on appeal. So, consulting an appellate attorney as early as possible in the litigation once you sense an adverse ruling will serve you well.

Of course, if the appeal process has already begun, it is not too late to consult an appellate attorney, but there are limits to challenging the district court orders and properly preserving appeal rights. If you find yourself faced with an adverse ruling at any time during your litigation case, the best thing to do is consult an appellate attorney so that you are at least aware of your options and your rights on appeal. Even if you prevail in litigation, you should still plan to consult an appellate attorney since you will want to avoid any possible reversal of the judgment on appeal or a new trial. Additionally, at times it is a good strategy to appeal first, even if you won on the majority of your claims in the district court. Good appellate counsel will ensure that you are aware of all your options and give you the best chance of benefitting from an appeal.