When to appeal, and when to let it go
An appeal is a second look, not a second trial. How to judge whether it's worth the time and money.
Elena Marlowe
·
6 min read
What an appeal is
An appeal is a second look, not a second trial. A higher court reads the record from the first one and asks whether the judge got the law wrong.
That makes it narrower than most people expect, and more winnable than they fear when there is a clear legal error.
How to judge an appeal
01
Is there a legal error?
Disagreeing with the result isn't enough. You need a mistake of law.
02
Was it preserved?
The issue must have been raised at trial, or it's usually lost.
03
What standard applies?
Some rulings get a fresh look. Others are reviewed only for abuse.
04
What will it cost?
Briefs and argument are priced by stage. Ask for a total.
05
What if you win?
Often the case goes back for a new trial, not a final result.
An appeal is won on paper, long before anyone argues.
Common mistakes
Four things that sink appeals:
Missing the filing deadline by a day.
Arguing the facts again instead of the law.
Appealing every ruling instead of the strongest one.
Waiting to read the transcript until the brief is due.
If you lost at trial
Check the date today
The deadline to file a notice of appeal is usually 30 days from service of the judgment, and sometimes less. Call rather than write if you are close.
A second opinion on the record costs far less than a weak appeal.
What happens next
Most appeals take 9 to 15 months from the notice to a decision. A written record review tells you whether yours is worth filing, and what it would cost.
WRITTEN BY
Elena Marlowe
Commercial litigator in New York since 2013. I run a one-lawyer practice and write these to answer the questions I hear on first calls.
This article is general information, not legal advice about your situation. Reading it doesn’t create an attorney–client relationship.
KEY TAKEAWAYS
Appeals review legal errors, not the facts
Deadlines to file are short
Weigh the odds against the cost
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