15 Jul So You Want to Appeal Your Case? Consider This Before You Spend the Money

In its last series of blogs, Edwards Law discussed ways to recoup your attorneys’ fees and costs through a litigation clause in your business contracts; via statute or via motion papers if you and your business are sued in a baseless and frivolous lawsuit.  But what happens if you lose your case and your opponent is coming after you for a judgment and its attorneys’ fees?  Do you pay or do you appeal?  This week and in the next series of blogs we will explore the ins and outs of appeals.

First Determine Whether You Have an Appealable Issue

Filing an appeal is very costly because it is a very time-intensive process.  There are a long list of appellate rules that your attorney will need to follow in order to properly file your appeal.  This is why you must be sure that you have a case that is “appealable” before you pay an appellate attorney a lot of money to file an appeal.

The goal of an appeal is to convince a three-judge panel that it should affirm or reverse a specific trial court or administrative judgment, order or ruling.  The Colorado Court of Appeals is a “decisional” court.  This means the appellate judges will affirm or reverse your judgment based on existing law, if possible.  Appellate courts typically do not want to create new law, i.e., new “precedent”.  Similarly, the Colorado Court of Appeals will not set policy.  So if you want to appeal “on policy grounds” or want the law changed, you will need to determine how and if you can direct your appeal to the Colorado Supreme Court, which appeals are much more limited.  Requests to review decisions of the Colorado Court of Appeals make up a majority of the Supreme Court’s filings—which means most cases that the Colorado Supreme Court decides come from the Court of Appeals, not directly from appellants like you.  While the Supreme Court also has direct appellate jurisdiction over cases, these cases are limited to those

• in which a statute has been held to be unconstitutional;
• which involve decisions of the Public Utilities Commission, writs of habeas corpus; or
• which involve adjudication of water rights, summary proceedings initiated under the Election Code, and prosecutorial appeals concerning search and seizure questions in pending criminal proceedings.

Also, the Colorado Court of Appeals will not make determinations of fact for your case.  Instead, it will rely on your trial court judge’s determination of the facts when making its ruling.

With all of this in mind, you and your attorney should really focus on what issue or issues you believe would be successful on appeal to the Court of Appeals, and whether it makes sense to spend the time and money appealing your case.  For example, if the issue you wish to appeal was not properly “preserved” by your attorney in the trial court proceedings, then the appellate court cannot reverse any trial court decision on the issue.  Also, your appeal is likely to be more effective if the issue you are appealing has some support in Colorado law.  If you are appealing an issue that the Colorado courts have not yet decided, or an “issue of first impression”, then you should be sure that you can find case law somewhere that can support your argument.  Keep in mind that cases decided in the Tenth Circuit (where Colorado is) are most persuasive to the appellate court, with cases being less persuasive the further you move from the Tenth and the further you descend the court hierarchy.

Find an Attorney Experienced in Bringing Appellate Cases

If you are confident you have a strong, appealable case, the next step is finding an attorney who has experience in bringing appellate cases.  As mentioned above, the process of drafting and filing an appellate brief is very technical and time-consuming, and one small procedural mistake could cost you the ability to bring your appeal.  Edwards Law has vast experience in appeals at numerous levels and in numerous states.  Call today for a free, initial consultation for help in determining whether your case is appealable.