I wish I heard this question more. Instead, the question I hear most is “how much will you charge for my appeal?”
I am an appellate attorney so I have read and written dozens if not hundreds of appeal briefs. I have read and digested literally thousands of pages of trial and motion records. And of course, I have parsed through hundreds of decisions from state and federal courts all over the country.
I know a thing or two about whether your appeal has any chance of success. Sadly, too many appeals—mostly ones I am responding to because I tend to tell you if I think your appeal has no chance—are fatally flawed, either on the law or the facts.
I’ll give you an example based on one that I wrote a responding brief for in the New York Appellate Division some months ago:
First, some background.
The case involved an interesting personal injury claim where the plaintiff was a construction worker who alleged he was harmed by a dangerous condition caused by the owner, the general contractor, and the subcontractor. In New York, the Labor Law applies to such claims and there are specific doctrines allocating liability to different parties. Subcontractors often escape direct liability, but they are often on the hook through indemnification provisions in contracts with the general contractors. Here, the general contractor cross-claimed against the subcontractor for indemnification.
Now, the appeal.
In this case, the owner, general contractor, and subcontractor each moved for summary judgment to dismiss the complaint. The plaintiff defeated the general contractor and subcontractor’s motion (the owner got out). The subcontractor did not appeal. The general contractor took an appeal, arguing that the motion court erred by not dismissing the claims against it. But the general contractor made an additional point on appeal: that it was entitled to summary judgment on its indemnification cross-claim against the subcontractor.
The general contractor’s appeal argument was totally plausible, but here’s the rub: it did not raise that argument in the motion court (and it did not move for summary judgment on the indemnification cross-claim).
Maybe the general contractor could have gotten around this issue by invoking the appellate doctrine that permits review of a new legal argument when the fact underlying it, such as the contract provisions, are undisputed in the record before the Appellate Division (this happens quite a bit).
BUT it made another error, which was absolutely fatal to its appeal: it did not bother to name the subcontractor as a respondent to the appeal. The Appellate Division (and any other court for that matter) will not grant relief against a party that is not named in the appeal (or in the action or in the motion, as the case may be).
Had this general contractor asked me about its appeal before they spent the time and money on it, I would have told them that it would be hard to convince the Appellate Division to grant relief because they did not move for summary judgment on the cross-claim. If the general contractor still wanted to pursue the appeal, I would have advised them to name the subcontractor as a respondent on the appeal.
Alas, it appears no one did an appeal viability review for this particular client. What a waste of everyone’s resources (including that of the courts, whose docket gets gummed up by totally hopeless appeals).
NOTE: this is just an example—don’t assume that your appeal is viable because it is different from the one I describe here.
Before you expend time, money, energy, and high blood pressure (which rises every time you have to meet an appeal deadline) make sure your appeal is viable on the most basic level.
If you need help deciding whether to go forward with your appeal, I offer a flat fee for appeal viability review, in which I read the order or judgment along with the pertinent submissions in the lower court. I then tell it to you straight—whether you should appeal or not.
