by Brad LaMorgese
None of us relish receiving a ruling that goes against the client. However, once the initial shock subsides, you realize that it is part of the process and you have the opportunity to turn things around, if the ruling was legally wrong. The key is understanding what, if anything, to do about the error.
If the bad ruling occurs early on in the case, there are several things to consider. First, would it be appropriate, given the client’s resources, to associate appellate counsel to help with the rest of the case? This can frequently be a valuable asset and take some of the technical load off of the trial lawyer, even if the case is not a good candidate for a mandamus or other emergency relief. Second, especially when mandamus applies, consider whether or not to seek immediate relief to the Court of Appeals. This primarily applies to discovery rulings where a client or case may be compromised. It is also possible to address legal errors surrounding arbitration, or whether initial statutory hurdles to a suit were properly met.
Though successful mandamuses are rare, many of these types of cases can reach the Court of Appeals before a final judgment. It is also worth examining filing a more detailed motion for reconsideration if the error occurs before a final judgment is entered.
The most common circumstance presenting grounds for appeal is when the judge rules against a client at final trial. In this situation, request transcripts and exhibits to identify possible legal error. It is best to bring an appellate lawyer aboard to perform the review, as the trial lawyer may remember details differently from the actual record, and may have some bias. Regardless, an objective reading of the record and a good legal analysis is a must before recommending an appeal.
At this point, an urgent consideration is to request findings of fact and conclusions of law. Generally, this must be done within 20 days of the judgment, and in some cases even sooner. If the judge does not file findings of fact and conclusions of law within 20 days after the request, you must file a past due reminder within 10 days after the deadline. This is critical as the failure to file a past due notice of findings is the same as never requesting it in the first place. It can result in findings deemed in support of the judgment on grounds other than the actual grounds the court found. It is not necessarily fatal to an appeal if you do not request findings, but it definitely does not help the client’s case. Additional findings may be requested within 10 days if the findings are deficient and do not address some of the grounds for recovery.
Once a judgment is issued, the next deadline of concern is the 30 days you have in which to file a notice of appeal or motion for new trial. Most appeals are preceded by a motion for new trial. This not only gives the trial judge one last chance to change the judgment, but also will preserve the legal issues for appeal. Generally it is best to prepare a full briefing just as it will be presented to the Court of Appeals. This will help the litigant avoid waiver and provide the best chance of the trial judge changing the ruling.
Finally, and perhaps most importantly, is the evaluation of the appeal. The desire to appeal an error should be balanced against the standards of review on appeal. Standards of review like abuse of discretion are the most difficult to prove, while others, like the de novo standard, are typically the most favorable. Economics must also be considered, looking at projected attorney’s fees, the costs of the clerk and reporter’s records, as well as the expected duration of the appeal. A single-issue appeal of a one-day trial, for example, will most likely be a lot less expensive than an appeal of a two-week bench trial with 10 issues.
A bad judgment by a trial court is not the end of the story. On the contrary, it can be a great opportunity to turn things around for the client. A proper strategy, preservation of the client’s legal rights, and a well-executed appeal can mean a complete reversal for the client.
Brad LaMorgese is partner at Orsinger, Nelson, Downing & Anderson, LLP. He can be reached at firstname.lastname@example.org.