“When a party comes to us with nine grounds reversing the district court, usually there are none.” Best said by a jurist from the Sixth Circuit Court of Appeals in a recently issued appellate opinion.
Civil cases are often long, drawn out, expensive, and unpleasant affairs. Litigants may encounter innumerable pleadings, extensive document production requests and witness depositions, seemingly never ending pre-trial motions, and pre-trial conferences and settlement discussions. All this, even before the jury trial begins. Then we have jury selection, opening statements, direct and cross examination (and possibly redirect and re-cross), and closing statements, jury instructions, jury deliberations, and a then final judgment. In some cases, the emotional impact of this process can be devastating.
But the story may not end there. A losing party may then consider appellate review of the final judgment. A federal administrative agency’s decision may be reviewed by a court of appeals. Also, in certain cases, review may be obtained, first in a district court, rather than a court of appeals.
In most bankruptcy courts, an appeal of a ruling by a bankruptcy judge may be taken to the district court. Several courts of appeals, however, have established a bankruptcy appellate panel consisting of three bankruptcy judges to hear appeals directly from the bankruptcy courts. In either situation, the party that loses in the initial bankruptcy appeal may then appeal to the court of appeals.
Let’s consider some statistics. According to recent statistics, during the year ending September 2013, a total of 284,604 new civil cases were filed in the US District Courts:
- Florida Northern District, 2,016
- Florida Middle District, 8,443
- Florida Southern District, 8,398.
The Median time from filing to trial:
- Florida Northern District, 25.7 months
- Florida Middle District, 19.8 months
- Florida Southern District, 16.5 months
Number of civil cases over 3 years old:
- Florida Northern District, 49;
- Florida Middle District, 1,423
- Florida Southern District, 94
During the same period, the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia District Courts) had a total 6,366 new cases filed and 3,352 still pending. And, the median time from Notice of Appeal to Final Disposition: 7.6 months.
Considering the nature of the case and the complexity of issues, attorneys fees and costs can realistically reach six and seven figure dollar amounts. To begin with, the Federal District Courts pursuant to Title 28 U.S.C. § 1332(a) may hear cases and controversies where “the matter in controversy exceeds the sum or value of $75,000.” Then, unless otherwise specifically provided for by statute, attorneys fees are subject to the so-called “American Rule,” That is, each party pays its own attorneys fees (unlike the “English Rule” in United Kingdom where the winner is usually awarded those).
Certainly, the volume and backlog of civil cases in appellate courts, as well as the potential costs of further litigation, a disappointed losing party must carefully consider, in concert with trial and appeals counsel, the ramifications of pursuing an appeal.
At times, emotion, the need to establish legal precedent, or some other idiosyncratic factor may a be primary driver. However, unless permitted by statute to review factual issues de novo (anew), an appellate court will only review legal error. And then, generally, trial counsel at the district court must have preserved legally sufficient grounds to appeal; in the case of an administrative agency decision, the hearing record. Trial counsel may also preserve grounds for appeal in a post-judgment motion; bringing up new issues very rarely prevails.
Moreover, counsel should decide which issues to assert in an appeal. Appealing a litany of issues (the kitchen sink approach) may tell the appellate body that you are grasping at straws and there are no genuine appealable issues. See Fifth Third Mortg. Co. v Chi. Title Ins. Co., 692 F.3d 507 (6th Cir. 2012). In Fifth Third Mortg. Co., a title company appealed nine (9) issues to the Sixth Circuit in an attempt to overrule the district court. The opinion from the appellate court opens with: WHEN A PARTY COMES TO US WITH NINE GROUNDS REVERSING THE DISTRICT COURT, USUALLY THERE ARE NONE. This is a classic line that every litigant should consider when analyzing how many issues to argue should be reversed on appeal.
Ultimately, the Sixth Circuit affirmed the district courts granting of summary judgment requiring the title company defend and indemnify the bank in a property dispute.
Litigation, at all stages requires comprehensive and reasoned legal analysis, strategic planning, and zealous but thoughtful advocacy. Civil appeals require the same level diligence. However, constrained by the trial record, appellate counsel in written briefs and, in most instances, at oral argument before a panel of appeals court judges must know and artfully articulate the law. One commentator has said “they have a refined skill set, an often academic focus on the nuances of the law and the precedent, and a preference for cool and collected analysis that remains “above it all.”
Should you appeal? It is not an easy question to take lightly or answer quickly. Each case is unique. And, only a dispassionate and reasoned analysis can only help provide perspective.
For more information contact:
Carl H. Perdue, JD, LLM
Senior Counsel and Partner
ASSOULINE & BERLOWE, P.A.
1801 N. Military Trail, Suite 160
Boca Raton, Florida 33431
Main: (561) 361-6566
Fax: (561) 361-6466
Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law
Miami • Ft. Lauderdale • Boca Raton
This article was edited by Litigation Partner Eric N. Assouline and Patent Attorney Greg M. Popowitz, who can be reached at their Email addresses: ena@assoulineberlowe or email@example.com respectively.