D. Appeals

The vast majority of employment-related lawsuits never go to trial; they are either discontinued or settled. However, every case that is tried has a loser, and the losing party must decide whether or not to appeal the unfavorable decision.

An appeal is a request that a higher court review the decision of a lower court. In those states that have an intermediate appellate court, the losing party challenging a trial court decision first brings the appeal to the intermediate court. In the federal court system, the losing party brings the appeal to the court of appeals in the appropriate circuit. For serious criminal cases (i.e., felonies), the right to an appeal is mandatory. In civil cases, an appeals court may have the discretion not to consider the appeal in certain circumstances. After the appeal is decided by an intermediate appellate court, the case can be further reviewed by the highest state appeals court (although some state cases are reviewed by the U.S. Supreme Court). In the federal system, after the appeal is decided by the U.S. Court of Appeals, the Supreme Court of the United States has the power and discretion to review and rule on the history of the case and the most recent appeal.

Appeals judges read the transcript of the trial together with legal documents called briefs to determine if the trial judge or jury erred in their decision. Typically, the intermediate appellate court will concern itself with issues of law as opposed to facts. It is rare that the appellate court will overturn a jury's factual decision. Rather, a verdict can be reversed if the wrong law was applied, incorrect jury instructions were given by the judge, or significant legal mistakes occurred, such as important evidence being mistakenly excluded by a judge from the trial.

Less than 20 percent of all criminal cases and 30 percent of all civil cases are reversed on appeal. Most decisions do not get reversed but if a person or business has spent several years and thousands of dollars pursuing or defending a valid claim, the additional money spent on an appeal can be worth it, particularly if the delay caused by the appeals process works to an appellant's advantage.

Speak to a lawyer immediately if you receive an unfavorable trial verdict. There is a limited period of time (i.e., often 30 days) in which to file a notice that you intend to appeal. This must be done without delay to preserve your rights. To evaluate the chances of a successful appeal, it is necessary to carefully reconstruct (in an objective fashion) the reason the case was lost. Consider whether to hire a specialist in appeals matters. Although your current attorney is familiar with the case, there are distinct advantages to hiring an attorney who makes a living writing briefs and arguing oral appeals (it is an art). Be certain you know how much the appeal will cost. Always sign a retainer agreement similar to the example on page 269 that clearly spells out attorney fees, costs, and disbursements.

Remember that no matter which lawyer handles the appeal, it is generally costly, time-consuming, and frequently does not produce anticipated results. However, if you win a big case and the employer appeals, there is little you may be able to do but contest the appeal.