Learn about the appellate process for civil lawsuits and how a personal injury appeal can help or hurt your final compensation.
Imagine you suffered a serious injury caused by someone else and filed a claim with the at-fault party’s insurance company.
If you or your personal injury attorney can’t negotiate a fair settlement, you can file a lawsuit against the negligent party and the case will proceed to trial.
This is where the pros take over. Trials in courts higher than small claims proceed formally under strict rules of evidence. Your attorney will try to persuade the judge or jury to render a verdict in your favor. The defendant’s attorney (usually hired by the insurance company) will try to do the opposite.
A trial is where attorneys pull out all the stops to win. Your attorney won’t be paid unless you win your case, and the insurance company’s attorney may not be rehired if they lose.
Settlement negotiations often continue throughout the trial. As evidence is introduced and experts give testimony, the attorneys develop a better idea of which side has a stronger case.
Unless you agree to settle the case before a verdict is entered, the trial will proceed, and a verdict will eventually be reached. Either you’ll be satisfied with the verdict or you won’t, and the same goes for the defendant.
If you lose your case, your attorney might recommend filing an appeal. If you win your case, especially if the jury returned a very high-dollar verdict, your opponent might appeal.
Deciding to File a Personal Injury Appeal
If you aren’t happy with the verdict in your case, you might decide to file an appeal. An appeal is a request to have a higher court change or throw out (reverse) the decision of the judge or jury in a lower court.
Depending on where you live, the highest state court, or the court of last resort, may be called the Superior Court or Supreme Court of Appeals.
State courts have the final say about state laws and constitutions. State Supreme Court interpretation of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases. ¹
You’ll only have a limited time to file an appeal. In most states, the appeal period is thirty days or less after your case verdict is entered.
An Appeal is Not a New Trial
You can’t file a personal injury appeal just because you lost your case or didn’t get as much money as you wanted. An appeal must be made because of errors made in your lower-court proceedings that hurt your case. For example:
- The court would not allow evidence that should have been allowed
- The jury was given incorrect instructions on how to decide your case
- Your expert witness was not allowed to testify
- An impropriety happened, like jury misbehavior
An appeal is not a do-over of your injury case. You won’t be allowed to enter new evidence or arguments. The appellate judge will only consider records and evidence from your trial, and it’s up to you and your attorney to make sure the trial records are complete and included in your appeals package.
The party who files the notice of appeal becomes the appellant. The other party becomes the appellee.
In some states, if you (the appellant) file a personal injury appeal that’s dismissed, you might be on the hook for the appellee’s attorney’s fees and court costs. For this reason, most attorneys won’t file an appeal unless they’re confident they can win.
Negotiating to Avoid an Appeal
Insurance companies are experts at using an appeal as leverage to settle. They use the appellate process as a tool in their arsenal both during and after a trial. During the trial, experienced attorneys can often sense how the jury is going to decide the case, especially after key witness testimony or after critical evidence is introduced.
As a result, during breaks and recesses, both sides often get together and try to settle the case before the trial ends. Since even the most skilled attorneys can never know exactly what a court’s verdict will be, in-trial settlement negotiations are always a gamble for both sides.
If the defendant’s attorney believes the jury is leaning your way, they may make an offer to settle. The amount will probably be less than you want but will guarantee an end to the case with money in your pocket.
Their offer will be based on what they believe the court’s verdict might be if the trial continues. They’re trying to avoid the possibility of a much higher verdict.
If they make an offer, you and your attorney will have a decision to make. Do you accept the settlement offer and walk away with at least some money, or do you take a chance and continue the trial?
If you continue, and the court’s verdict is less than the defendant offered (or nothing at all), you’ll have blown the opportunity to take the offer. On the other hand, the verdict may not only be in your favor but be substantially higher than the amount you asked for.
This is where your attorney’s experience and judgment come in. You are the client, and the ultimate decision to settle or take your chances for a higher verdict is up to you. However, you should always listen to your attorney – experience counts for a lot.
Insurance Company Threats to Appeal
The decision to settle during trial involves more than betting on what the verdict will be. The insurance company is always planning their next move. During negotiations, the company’s attorneys may say that if you don’t accept their offer and the verdict is in your favor, they will appeal the case.
“Take it or leave it,” is a phrase heard hundreds of times each day at negotiating tables all over the country. If the insurance company’s attorney has stated their intention to appeal if you don’t settle, your decision will be a tough one.
Insurance companies can be (and often are) massive bullies. Their financial resources give them a dominant position in the civil court system. Because of their deep pockets, they can consistently use the threat of appeal as a bargaining tool.
Listen to your attorney. A lot depends on the type of injury case you are litigating and the strength of your case. Together, you can discuss the cost and risk of your choices.
Some injury cases against corporate defendants, like catastrophic birth injuries and medical device liability claims, can return verdicts reaching into the millions of dollars. In these cases, it might be worth the time and expense of fighting through an appeal.
More common injuries caused by car accidents, slip and falls, or dog bites involve insurance policies with much smaller policy limits.
It may not make economic sense to refuse a settlement offer that is below policy limits if the cost of litigation would eat up the difference. If you reject the settlement, all you can do is hope the evidence is overwhelmingly in your favor and discourages an appeal.
Working with Attorneys on Appeals
If you decide to appeal, your attorney will have to agree to continue as your counsel. Unless you and your attorney agreed ahead of time on payment arrangements if your case went to appeal, your contract probably states the attorney’s obligation to represent you does not include an appeal.
Unless the contract says otherwise, your attorney’s obligation to represent you ends the instant the trial verdict is rendered.
If you lose at trial and your attorney believes your case is strong enough to win on appeal, they will negotiate a contract extension and continue to represent you. If not, you may have to find another attorney.
Taking your case to appellate court calls for different legal skills than lower court cases. Appellate judges make their decisions primarily on technically written legal arguments that evaluate the lower court records relative to state law. Most appellate courts limit arguments to less than 50 pages.
If oral arguments are allowed, the attorney may only have 15 or 20 minutes to convince a panel of judges that the lower court made a legal error. Appellate judges put a lot of weight on lower court decisions.
Deciding to file an appeal will rack up additional costs and attorney fees and may take another year or two before a decision is handed down. Even if you “win,” the appeal court’s decision may be to send your case back to the lower court for further action.
Your attorney understands the challenges and risks of jury verdicts and appeals and will only recommend accepting a settlement when it’s in your best interest.
Injury victims who are represented by an attorney almost always get higher compensation than claimants who try fighting the insurance company on their own.
Most personal injury attorneys don’t charge for your initial consultation. It costs nothing to find out what an experienced attorney can do for you.
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