{"id":155,"date":"2017-03-14T02:38:40","date_gmt":"2017-03-14T02:38:40","guid":{"rendered":"http:\/\/davidcorbettlaw.com\/blog1\/?page_id=155"},"modified":"2017-03-15T02:18:28","modified_gmt":"2017-03-15T02:18:28","slug":"to-appeal-or-not-to-appeal","status":"publish","type":"page","link":"https:\/\/davidcorbettlaw.com\/blog1\/to-appeal-or-not-to-appeal\/","title":{"rendered":"To Appeal or Not to Appeal"},"content":{"rendered":"

TO APPEAL OR NOT TO APPEAL<\/span><\/span><\/strong><\/p>\n

What will the appeal cost<\/span>?<\/span><\/p>\n

Each party to an appeal typically hires an attorney, and someone has to pay them.\u00a0 In the standard case, each party pays for his or her own attorney (but see the discussion of \u201cfee shifting\u201d in the fourth paragraph below).\u00a0 If you are paying for your attorney by the hour, your bill for his or her services will be equal to the number of hours they spend on your case, times their hourly rate.\u00a0 Hours worked will depend on the extent of the record that must be reviewed and mastered, as well as on the complexity of the legal issues that must be analyzed and argued.\u00a0 For an appellant, the required work in a typical case can be divided into four stages: 1) Gathering and analyzing the record on review; 2) preparing appellant\u2019s opening brief; 3) reviewing respondent\u2019s brief and preparing appellant\u2019s reply brief; and 4) preparing for and giving oral argument.\u00a0 In my experience, performing all of these tasks rarely takes less than 100 hours (for a case with a small record to master, and simple legal issues), and can take many times that.\u00a0 If either party is likely to seek further review at the State Supreme Court, that will add a substantial amount of time.<\/span><\/p>\n

The time required to represent a respondent should typically be less (in my experience, 20-30% less), primarily because respondents do not submit reply briefs.\u00a0 Any attorney you consider hiring should spell out their fees and their billing policy in an \u201cengagement letter\u201d they will ask you to sign at the start of the representation.\u00a0 As with any legal document, be sure you understand the engagement letter before you sign it.<\/span><\/p>\n

A party also needs to consider how its bills for attorney\u2019s fees will be spaced over time.\u00a0 Again, each attorney has her own policy, but it is common for attorneys to ask the client to pay a retainer up front, and then to pay each month\u2019s bill as it comes due. The retainer is typically placed in the attorney\u2019s trust account to secure payment of the last bill, but it may be tapped by the attorney if the client falls behind in monthly payments.\u00a0 \u00a0In a typical appeal, this will lead to a pattern of expenditures for the appellant that starts with payment of the retainer right up front, passes through one or two months of relatively small attorney\u2019s fees as the record on review is gathered (but these months will often require a substantial payment for the transcript of the trial court proceedings), and then peaks with the bill for the month(s) in which the opening brief is prepared.\u00a0 Preparation of the reply brief (typically begun one month after the opening brief) will lead to another, albeit smaller, spike in the bill, which will then often be followed by many months of negligible bills as the parties wait for oral argument.\u00a0 Preparation for, and giving, oral argument will lead to another substantial bill.\u00a0 Bills then revert to basically zero as the parties wait for six months to a year for the Court of Appeals to render its decision.\u00a0\u00a0 For respondents, the pattern differs mainly in that there should be low bills during the first several months, as the appellant carries the burden of moving the appeal forward.\u00a0 A respondent\u2019s bills will focus on preparation of respondent\u2019s brief and oral argument.\u00a0\u00a0 Because of the typical variability in monthly bills, both appellants and respondents may want ask their attorneys if they will agree to payment plans to smooth the bills over time.\u00a0 \u00a0<\/span><\/p>\n

In some cases, a contract between the parties will require the losing party in any litigation to reimburse the prevailing party for its attorney\u2019s fees.\u00a0 There are also statutes that provide for \u201cfee shifting\u201d in certain areas of the law (prominent among them are claims brought under the Consumer Protection Act, civil rights claims,\u00a0 claims for unpaid wages or overtime, and family law matters where one party has a demonstrated financial need and the other has the ability to pay).\u00a0 In addition, the appellate rules allow the Court to impose sanctions\u2014which can include attorney\u2019s fees\u2014for filing a frivolous appeal.\u00a0 RAP 18.9(a).\u00a0 If you happen to benefit from ruling requiring the other side to pay your attorney\u2019s fees, congratulations!\u00a0 Such a ruling, however, comes only at the end of the appeal, and does not enforce itself.\u00a0 As with any judgment, it may prove difficult or impossible to actually collect the fee award.\u00a0<\/span><\/p>\n

In addition to attorney\u2019s fees, an appellant must pay a filing fee of $250, the costs of copying the paper record on review,\u00a0 the cost of a transcript of the proceeding being reviewed (if such a transcript is used)[1]<\/a>, and for copies of his or her briefs made by the Court of Appeals. \u00a0\u00a0If the appellant wants to prevent the respondent from collecting on a judgment pending appeal, he will also typically have to incur the cost of posting a \u201csupersedeas bond.\u201d\u00a0 \u00a0If you are the \u201csubstantially prevailing\u201d party on appeal, you may recoup all of these costs from the other side, along with a \u201cstatutory attorney fee\u201d of $200.\u00a0 RAP 14.2, RCW 4.84.080(2).<\/span><\/p>\n

The discussion here has focused exclusively on monetary costs.\u00a0 In many cases, however, pursuing an appeal creates (or keeps alive) emotional burdens that might be avoided by not appealing.\u00a0 Sometimes, it is just better to move on.\u00a0<\/span><\/p>\n

Will the benefits exceed the costs<\/span><\/em>?<\/span><\/p>\n

As a general rule, you should only appeal if the benefits you expect to receive from doing so exceed your expected costs. To illustrate the logic of this claim with a simple monetary example, note that it wouldn\u2019t make sense to spend $10,000 to get judicial relief worth $5,000.\u00a0\u00a0 Indeed, it wouldn\u2019t make sense to spend $10,000 to get judicial relief worth $9,999.\u00a0 In both cases, the potential appellant would be better off holding on to her money.\u00a0 Conversely, it would<\/em> make sense to spend $10,000 to get a decision worth $15,000 (or even $10,001).\u00a0<\/span><\/p>\n

The foregoing examples rely heavily on the twin implicit assumptions that the costs and benefits of an appeal are purely monetary and known with certainty in advance.\u00a0\u00a0 Neither<\/span><\/em> of these assumptions applies in the case of an actual appeal.\u00a0 Although the costs of an appeal are largely monetary, there are often also psychological or institutional costs from prolonging a matter after trial.\u00a0 Expected benefits from an appeal may have a dimension that is hard to reduce to \u201ccash value.\u201d\u00a0 How should a party value overturning an injunction, or\u2014more dramatically\u2014a restoration of parental rights to a beloved minor child?\u00a0 What price should the party be willing to pay for vindication of a principle?\u00a0 These difficulties in quantifying the value of various outcomes are compounded by the fact that in any actual appeal, the outcomes are not certain, but instead can only be assigned inherently subjective probabilities.<\/span><\/p>\n

Despite these issues, comparing expected benefits with expected costs is surely the best place to start an evaluation of whether it makes sense to appeal.\u00a0\u00a0 The costs of appeal may be relatively easy to quantify, at least when there is no chance of being ordered to pay the other side\u2019s attorney\u2019s fees.\u00a0 The potential benefits should also be quantifiable if the main issue is a money judgment that may be reversed, or remanded for reconsideration at a new trial.\u00a0 As for the probabilities, careful analysis of the case and the relevant law should lead to reasonable estimates.\u00a0<\/span><\/p>\n

To see how this focus on comparing expected costs and benefits could work in practice, consider the following hypothetical example.\u00a0<\/span><\/p>\n

A potential appellant (\u201cclient\u201d) sued a corporate defendant for breach of contract and related claims, but the matter was dismissed on summary judgment after the client inexcusably failed to submit a timely response to defendant\u2019s motion.\u00a0 The client\u2014and not his trial counsel\u2014was simultaneously sanctioned $50,000 under Rule 11 for filing a frivolous complaint.\u00a0 The complaint was not signed by the client, but only by his attorney.\u00a0 Moreover, the complaint did not misrepresent any facts, but may have been unduly aggressive in asserting legal claims that supposedly flowed from the alleged facts.\u00a0 There is at least a colorable argument that the opposing party failed to provide a required warning before seeking sanctions, that the trial court failed to make required findings and conclusions in support of the sanctions, did not consider if either the client or his trial counsel conducted a reasonable inquiry into the law before filing the complaint, and did not consider alternative sanctions.\u00a0\u00a0 Some of these possible claims of error were not raised below, but there is federal <\/span>case law holding that this this sort of failure will be overlooked if it may have been due to trial counsel\u2019s conflict of interest.<\/em><\/span><\/p>\n

Based on a preliminary study of the case, the attorney estimates that she can do it for a total cost $20,000 (the relevant record on review is short, but the legal issues are somewhat novel in Washington).\u00a0 There is no contractual or legal provision for fee shifting, except for RAP 18.9(a), and the attorney is convinced the appeal is not frivolous.<\/em><\/span><\/p>\n

Should this appeal go forward?\u00a0 The following table first lists possible decisions by the Court, assigns them probabilities, and briefly attempts to justify them.\u00a0 It then does the same for possible costs.\u00a0 Probabilities for potential outcomes and costs must each sum to one.<\/span><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
Potential decisions and costs<\/strong><\/span><\/td>\nEstimated Probability<\/strong><\/span><\/td>\nExplanation<\/strong><\/span><\/td>\n<\/tr>\n
\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n
Potential Decisions<\/em>:<\/span><\/td>\n\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n
Reversal of summary judgment and<\/em> reversal of sanctions (together worth some \u201cbig\u201d number to the client).<\/span><\/td>\n0<\/span><\/td>\nTrial court has considerable discretion to grant summary judgment when one side fails to file timely opposition without plausible excuse.\u00a0 Also, the attorney believes overall argument on appeal will be strengthened by not contesting grant of summary judgment.<\/span><\/td>\n<\/tr>\n
Reversal of $50,000 in sanctions in form that prohibits re-imposition of sanctions on client on remand.<\/span><\/td>\n0.5<\/span><\/td>\nThe attorney believes it is obviously unfair to impose substantial CR 11 sanctions on client for sins of attorney alone, and<\/em> there is strong supporting federal case law.\u00a0 However, this is a new issue in Washington, and some of the claims of error may not have been raised below.<\/span><\/td>\n<\/tr>\n
Reversal of sanctions that allows possible re-imposition of some sanctions on client after further proceedings in trial court (for net gain to client after trial court expenses of $10,000)<\/span><\/td>\n0.2<\/span><\/td>\nTrial court\u2019s failure to conduct required inquiry and make required findings opens possibility of purely procedural justification for remand that might allow some sanctions to be re-imposed; taking this path would allow court of appeals to avoid making new law on issue of client vicarious liability for CR 11 sanctions.<\/span><\/td>\n<\/tr>\n
Affirmance (worth nothing to client)<\/span><\/td>\n0.3<\/span><\/td>\nRelatively low level of probability for affirmance is consistent with attorney\u2019s belief that punishing client for sins of attorney in CR 11 context is wrong as a matter of both law and common sense.\u00a0 Probability of affirmance is as high as 0.3 as a hedge against overlooking something.<\/span><\/td>\n<\/tr>\n
\u00a0<\/span><\/td>\nExpected Benefit<\/span> therefore equals:\u00a0 0*(some big number) + 0.5*($50,000) + 0.2*($10,000) + 0.3*($0) = $27,000<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n
\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n
Potential Costs<\/em><\/span><\/td>\n\u00a0<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n
Client must pay the other side\u2019s fees as well as his own, at total cost of $50,000<\/span><\/td>\n0<\/span><\/td>\nThere is no fee shifting provision in the contract, and the appeal of the sanction award is not frivolous (an appeal of summary judgment might be frivolous)<\/span><\/td>\n<\/tr>\n
Client must pay for his own fees and costs of $20,000<\/span><\/td>\n1.0<\/span><\/td>\nThere is no fee shifting agreement, and the appellant will have to pay his attorney\u2019s fees.<\/span><\/td>\n<\/tr>\n
\u00a0<\/span><\/td>\nExpected Costs<\/span>:\u00a0 0*($50,000) + 1.0*($20,000) = $20,000<\/span><\/td>\n\u00a0<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\u00a0<\/span><\/p>\n

What the foregoing analysis shows (if you are persuaded by the probability estimates) is that it would make economic sense<\/em> to appeal in this case.\u00a0 The client is not certain<\/span> to gain more than he spends, but he can reasonably expect<\/span> to.\u00a0 Indeed, this would be true even if the probability of having the sanctions completely thrown out was reduced from 0.5 to 0.4, and the probability of affirmance increased to 0.4 (because 0.4*$50,000 + 0.2*$10,000 > $20,000).\u00a0 If the client is not risk-averse, the fact that the expected gain exceeds the expected cost means that pursuing the appeal is a reasonable chance to take.\u00a0\u00a0 If the reversible sanction were only $30,000, however, it would not <\/em>make economic sense to appeal given the estimated probabilities.<\/span><\/p>\n

\u00a0Obviously, this sort of analysis is only as accurate as the outcome valuations and probability estimates used to implement it.\u00a0 In light of the \u201chigh\u201d probabilities assigned in the hypothetical above, it is worth noting that a distinguished Washington appellate practitioner has argued that \u201cit is probably malpractice for an attorney to advise a client that their chance of prevailing is better than 50%, even if the attorney believes the issues are sure winners.\u201d [2]<\/a>\u00a0 This is too conservative.\u00a0 The fact that on average<\/em> only around 30% of all civil appeals result in outright reversal (approximately an additional 8 % are modified) is definitely worth mentioning to all prospective appellant clients shortly after they walk in your door.[3]<\/a>\u00a0 However, it says very little about the probability of reversal you should assign to a particular case after you have had some chance to study it\u2014unless\u00a0you think the Court of Appeals decides cases by pulling opinions out of a hat in which 2\/3 of the options are marked \u201caffirm.\u201d\u00a0 Trial courts do sometimes make obvious, reversible errors, and the Court of Appeals appears to take its error-correcting function seriously.[4]<\/a>\u00a0 An appellate attorney who gives a client an inflated estimate of the chance of success in order to induce the client to continue with an appeal is clearly acting unethically, but an appellate attorney who gives an unreasonably low estimate to protect herself from a potential malpractice claim is also not serving the client\u2019s best interest.\u00a0 An attorney who believes that the record, applicable law, and the rules of appellate procedure give her client a greater than 50% chance of succeeding should tell her so.[5]<\/a><\/span><\/p>\n

\n

 <\/p>\n

\n

[1]<\/a> Transcripts from the King County Superior Court in 2011 cost approximately $900 per day of hearing transcribed.\u00a0 These costs depend on how much testimony was given per day, and the complexity of the subject matter<\/span><\/p>\n

[2]<\/span><\/a> Howard M. Goodfriend, \u201cPractical Aspects of the Appellate Process:\u00a0 Counseling the Parties on Whether to Appeal\u201d, available on the web at:\u00a0http:\/\/www.essglaw.com\/appellate_process.html<\/a>.<\/span><\/h1>\n

[3]<\/span><\/a> These data are derived from a table showing \u201c2003 Disposition Rates\u201d for all Washington Appellate Courts, reprinted in \u201cWashington Appeals:\u00a0 New Rules and Expert Guidance through the State Appellate Process\u201d, WSBA-CLE dated December 1, 2010.<\/span><\/h1>\n

[4]<\/a> For cases finding \u201cobvious error\u201d by the trial court, see, e.g., LaPlant v. Snohomish County<\/em>, \u00a02011 WL 1744441 (Div. 1) (granting discretionary review based on \u201cobvious error,\u201d and reversing trial court); Macias v.<\/em>\u00a0<\/em>Mine Safety Appliances C<\/em><\/a>o<\/em>., 158 Wn. App. 931, 244 P.3d 978 (2010) (Div. 2) (same); and In re Dependency of P.P.T.<\/em>, 2010 WL 532444 (Div. 1) (holding trial court committed obvious error in interpreting statute).\u00a0 When the Court of Appeals describes an error as \u201cobvious\u201d, it would surely have been reasonable for an attorney to assign a greater than 50% probability to reversal.\u00a0\u00a0\u00a0 For reference to the Court of Appeals as an \u201cerror correcting\u201d court, see, e.g. State v. Harris<\/em>, 154 Wn. App. 87, 101, 224 P.3d 830 (2010) (Judge Quinn-Brintnall, dissenting).\u00a0 By contrast, under RAP 13.1(a) and 13.4(b), the Supreme Court is not an error correcting court.\u00a0<\/span><\/p>\n

[5]<\/a> It is also obvious good practice to inform clients that any probability assessment is subject to revision as one learns more about the case.\u00a0 Reading the respondent\u2019s brief is typically an excellent test of one\u2019s assessment of the case.<\/span><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

TO APPEAL OR NOT TO APPEAL What will the appeal cost? Each party to an appeal typically hires an attorney, and someone has to pay them.\u00a0 In the standard case, each party pays for his […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"_links":{"self":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/155"}],"collection":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/comments?post=155"}],"version-history":[{"count":3,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/155\/revisions"}],"predecessor-version":[{"id":175,"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/pages\/155\/revisions\/175"}],"wp:attachment":[{"href":"https:\/\/davidcorbettlaw.com\/blog1\/wp-json\/wp\/v2\/media?parent=155"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}