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How Well Do You Understand the Appellate Process?

by Rob L. Wiley

At Stewart & Wiley we want our clients to understand the appellate process and to hold realistic expectations about it. Whatever the trial court outcome, litigation clients who understand the appellate process make better decisions before and after trial.

As a lawyer involved in trials and appeals for more than twenty-five years, I have come across many misconceptions and misunderstandings about appeals. I won’t try to cover all of them here, only list a few of the major ones, while setting the record straight:

  • Misconception No. 1: Appellate courts retry cases, giving litigants a “second bite at the apple.” Actually, nothing could be further from the truth. Except in a few narrow circumstances, appellate judges take, not a fresh look at cases, but an often skeptical one. They are looking, in most instances, only for really bad mistakes in the trial. They don’t actually hear evidence (though they usually read the trial testimony). They don’t entertain new arguments (meaning every point made on appeal has to have been “preserved” in the trial court). Appellate courts don’t breathe new life into cases, they just conduct autopsies to see if the trial judge really messed up.
  • Misconception No. 2: Appellate courts often change the trial court result, so the party appealing has a good chance to win the case they originally lost. Actually, most appellate courts reach the same result as trial courts. Texas intermediate courts of appeal, for example, affirm over 90% of the cases they hear. The affirmance rate varies between courts and between kinds of cases, of course. Still, many more cases come out the same way on appeal as they did at trial.
  • Misconception No. 3: “Winning” on appeal means the party who lost at trial walks away with a clear victory. In truth, an appellate court “win” frequently just means a new trial. Appellate courts do not usually “render” a decision for the losing party in the trial court. Much more often, the appeals court finds a mistake that likely affected the outcome, but all the winner gets is a retrial with an instruction to the trial court not to make that same mistake again. This means the expense and time of a new trial. Many cases resulting in remand, therefore, settle after the appellate decision.

Many more misconceptions exist, of course. This small sample demonstrates the need for experienced appellate counsel at all stages of a case. Knowledge of the process and its pitfalls promotes intelligent decision making about which cases to appeal, how to respond if the other side appeals, the kind of settlement posture to take, and what kind of relief an appeal actually can produce. At Stewart & Wiley, we help clients work through these questions and with every part of the appeals process.

We’re available at (281) 367-8007 or via e-mail at [email protected]

© 2010, Rob L. Wiley, All Rights Reserved


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