Is an appeal worth it? Depending on the case, "it" can mean different things. For example, it can represent the financial cost of an appeal from a money judgment, or the emotional cost of continuing litigation after enduring a long trial. Or, it can be the risk of embarrassing facts being published by an appellate court. By identifying a client's main concern, an attorney can frame the relevant information regarding an appeal in a way most helpful for the client's decision making.

Attorneys always face the temptation to immediately focus on the odds of reversal. While important, odds alone do not inform a client on whether to appeal. Instead, clients need a framework within which they can evaluate whether the prospects of reversal warrant the time, costs, and emotional toll. Generally, clients make their decisions within one of the following five frameworks:

1. Affordability - Family law cases often fall into this category. Clients faced with judgments denying them child custody or visitation rights will often have made the decision to appeal immediately after the trial court rules. Thus, the primary question for these clients is not whether they want to appeal, but whether they can afford one. The most helpful information for them tends to be a detailed estimate of the costs of an appeal. Though the odds of success play a role, many clients will want to pursue even long-shot appeals in order to preserve priceless family relationships.

The possibility of fee shifting can substantially increase the overall financial cost of an appeal. In particular, clients in dissolution cases need to be informed that they may be ordered to pay for the opposing party's appellate fees and costs. Indeed clients in any fee-shifting case-whether by attorney fee provision in a contract or by statute-need to know about their exposure to fee shifting provisions.

2. Cost/benefit analysis - Appeals involving business transactions are usually governed by a classic cost/benefit analysis. In these cases, the financial cost of an appeal is weighed against the odds of securing a reduction or elimination of a money judgment. Here, clients will want to know that roughly a quarter of civil appeals yield reversals or modifications of the judgment. And, they will want to know how their appeal compares to the "average" civil appeal. Appeals from modest money judgments may make sense only with a de novo standard of review, while large money judgments may be worth challenging even with more difficult-tomeet standards of review. The need to post bonds and the statutory interest rate on money judgments also play key roles in an informed decision.

The cost of an appeal is often more than just financial. Many litigants become emotionally exhausted after enduring lengthy trial court proceedings. Sometimes the certainty of an outcome-even an unfavorable one-proves more acceptable than additional years of waiting for court rulings. If the emotional cost of an appeal is a primary concern, clients are well served with information about procedures on appeal. Some clients decide to appeal because the discovery battles, cross-examinations, and trial drama lie behind them. Some clients decide that continued uncertainty precludes an appeal. In any event, a focus on the nature of the appellate process proves most helpful.

3. The Google Test - Even unpublished appellate decisions can be found online with a simple Google search. And, published decisions endure both on the web and in print. In contrast to superior court decisions, which are generally not published, parties to an appeal should be aware that the facts of their case will probably become available to anyone who can use an internet search engine. Even a promising appeal should be carefully considered if a client does not want to publicize the facts of a case.

4. Effect on other litigation - Appeals can have consequences for clients ranging far beyond a particular case. A published opinion can make law with profound effects on large businesses and institutions-especially ones often involved in litigation. These organizations may wisely forego appeals involving ugly facts or very unsympathetic portrayal of the client in the judgment. Even apart from the Google test, highly unfavorable facts do nothing to increase the chances of success in an appeal. Combined with the lasting power of a published precedent, it may be wise to await a case with better facts.

5. No stone left unturned - The last category includes any case in which a client feels compelled to appeal regardless of costs or odds. With this type of case, the only hurdle to clear is whether or not the appeal has any merit. Unfortunately, appeals are sometimes desired for purposes of delay and to frustrate the opposing party. Not coincidentally, these appeals are often clearly meritless even at the outset. Under California law, attorneys and parties can be sanctioned for appeals taken for purposes of delay or without merit.

In fairness, many parties who feel compelled to appeal have cases that involve glaring injustices demanding redress. These injustices often endow the appeals with quite a bit of merit. Even in these cases, however, clients need to understand that absent legal error in the trial court proceedings an appeal cannot properly be undertaken.

Conclusion: Approaching the question of whether to appeal by focusing exclusively on the odds of success often provides incomplete guidance for clients. Offering clients information relevant to their primary concerns, whether financial, emotional, or reputationrelated, will help them decide whether an appeal is worth it.

January / February 2006