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“If I Lose, We Can Appeal, Right?”

By Alan E. Freed

We lawyers have a love/hate relationship with the portrayals of our profession in movies and on television. On the one hand, the image of the heroic lawyer going up against the corrupt government official or the evil local sheriff or the profits-over-people corporation is a noble one. And we love watching “My Cousin Vinny” Gambini outwit the hapless prosecutor with the help of his brilliant expert witness, Mona Lisa Vito. 

On the other hand, we collectively cringe when we watch how the trial and appeal process is presented. Unlike TV trials, in which a handful of witnesses present a compelling story in a day or two, real trials take months, sometimes years, to prepare and days to present, often stretched out across multiple months.

And those appeals. On television, the appearance before a panel of learned appellate judges happens just days after the trial is over, and the decision is usually made right on the spot.

Here’s the real scoop on appeals:

  • They take a long time. It’s not unusual for an appeal to take from months to more than a year to make it to the oral argument before a panel of judges.
  • Decisions can come weeks or months after the oral argument.
  • And here’s the worst part: more appeals are lost than are won.

When we appeal a case, we are arguing to the Court of Appeals that the trial judge made errors and that the errors were so glaring and significant that the judgment should be reversed. That is a very high mountain to climb.

Appellate courts begin with the assumption that the trial judge did their job correctly. If the outcome could have gone more than one way but there was evidence to support the judgment, the Court of Appeals will usually affirm the judgment, even if the appellate judges would have reached a different outcome.

Appeal courts will consider reversal only when we are able to demonstrate that the evidence clearly does not support the outcome or that the court misapplied or misinterpreted the law. Even if you are convinced a witness was lying, the Court of Appeals will accept the trial judge’s assessment of credibility because the trial judge actually saw and heard the witness testify.

None of this is meant to suggest that you should never consider an appeal. The Court of Appeals and the Missouri Supreme Court hand down decisions every week reversing lower court rulings, but you should recognize that appeals can be time-consuming and costly. An experienced appellate lawyer can assess whether trying to reverse a judgment is a wise move.

Your best opportunity for a “win” in your case is at trial, but if you don’t get the outcome you were hoping for, you should discuss the option of an appeal with your lawyer.

The family law attorneys at Paule, Camazine & Blumenthal have appealed many cases over the years and, in each case, have made a careful review of the judgment and the evidence to try and determine whether an appeal makes sense.


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