Appeals - Should I File an Appeal?
Most people believe that when a Judge renders an opinion that is incorrect that they should file an appeal. This is partially true, but does not tell the complete story. In order to file an Appeal, one must determine whether or not the Lower Court Judge made an error in the law of the case or made an error based upon the facts of a case. Appeals are extremely costly and require a Record of the Lower Court proceedings in order for the Appellate Court take hone a basis to review the decision of the Lower Court Judge. Without a Record with requires a Transcript, the Appellate Judges will typically deny the Appeal and there is case law that states that an Appeal can be dismissed based upon failure to product a Record. The Transcript of the proceedings is part of the Record, but it is also necessary to provide the complete Record of ALL proceedings conducted in the Lower Court to specific pages and part of the record, so that the appellate Court knows the basis of your argument.
An error in fact will create a situation in which a Judge looked the facts of the case and made basically an incorrect decision. The appellate Court will typically defer to the discretion of the lower Court judge in these circumstances, and therefore an individual should be very careful in filing an appeal based upon a factual issue. If there is no substantial factual basis for the decision an appeal can prevail on this basis.
The easiest opportunity to appeal a case is when the lower Court makes an error in law. This occurs when the lower court judge misinterprets the law or abuses his or her discretion. An appellate Court carefully looks at the issues and case law to determine whether or not there had been an error in law.
An experience Appellate Attorney may need to review the record from the Lower Court proceedings as well as the transcripts from the hearings to determine if there is a legal basis for an Appeal. Many Appellate Attorneys will not provide this information to a client who will blindly hire an Attorney without the knowledge of whether or not an appealable issue exists and whether or not there is a likely possibility of success or not upon the Appeal.
In my practice, I typically charge an Attorney Fee to review the necessary documentation and transcripts without knowing if an Appeal can be successful. I then advise my clients what the potential issues are on appeal and whether or not there is a probability or possibility for success. This is what I believe to be the fairest representation of a client, because to proceed to do an Appeal with no likelihood of success is unfair and a waste of the client’s money. Please contact me to discuss any possible appeal.