By Logan Carducci

You’re unhappy with the result of your trial. The judge has denied your post-trial motions. Now what?

The decision to appeal or not to appeal from an adverse judgment is one of the most critical and overlooked stages of any case. Too often attorneys automatically file an appeal without first evaluating the substantive merits of their appellate arguments, the pros and cons of an appellate win, or the financial repercussions for their client. Before you proceed with your appeal, consider the following tips:

1. Determine your strongest appellate arguments, evaluate the applicable standards of review, and estimate the likelihood of success on appeal for each of these arguments. Although your client will likely ask for a percentage estimate, make sure you are careful about the numeric value you assign to your appeal. Remind your client that (1) there is no 100% chance of a “win” and (2) an estimate is not a guarantee.
2. Evaluate the downsides to both winning and losing the appeal. If you win, what are the consequences of the remand? Will you be subjecting your client to an entirely new trial when they simply want to challenge one part of the judgment? In dissolution actions, for example, it is important to remember that the trial court’s financial orders are part of a “carefully crafted mosaic.” Because of this, “when an appellate court reverses a trial court judgment based on an improper alimony, property distribution, or child support award, the appellate court’s remand typically authorizes the trial court to reconsider all of the financial orders.” (Emphasis added.)  Smith Smith, 249 Conn. 265, 277 (1999). By contrast, if you lose the appeal, will the decision establish binding appellate precedent for future cases on this same issue?
3. Consider the financial consequences for your client. At the very minimum, it is important for your client to understand the attorneys’ fees associated with pursuing an appeal. Moreover, you should advise your client when they may face additional financial consequences for bringing an appeal, such as post-judgment interest under General Statutes § 37-3b.

As appellate counsel, you should make sure your client understands the probability of success on appeal and the risks associated with pursuing that appeal. Once you have conveyed these issues to your client, however, it is up to him or her to decide whether “to appeal or not to appeal.”

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