Under our adversarial system, whenever the court rules, there must be a winner and a loser. No attorney worth his salt will ever guarantee a victory. Therefore, in any case, you (the client) may end up on the losing side. In the unfortunate event of a loss, you will typically have a right to file an appeal.

Of course, just because you have the right to appeal does not mean that you should appeal. While there are many factors to consider when deciding to appeal, such as cost and time, probably the most important question is whether the appeal will be successful or fail.

While it is impossible to predict in any case if one will win or lose, there are some things that one should think about, such as cost and the emotional toll of the appeal. However, whenever one is thinking of appealing, one must consider the odds of success. Certainly, each case is unique and will succeed or fail on its own merits, but there are some general considerations to keep in mind.

In most cases, the party that lost in the trial court (the appellant) also loses on appeal. By way of example, 30 cases were released on September 18, 2007, from the Minnesota Court of Appeals.

Of those 30 cases, 14 were criminal or quasi-criminal cases; however, only one of those criminal cases was a partial victory for the appellant and none were a total victory for the appellant. However, of 16 civil cases, five were a victory or a partial victory for the appellant, which means that 31% of the civil cases were total or partial victories for the appellant. Those numbers are more encouraging for a party looking to appeal in a civil case, and there are certainly cases where the issues and amounts involved justify taking an appeal. Attorneys at Parker & Wenner have many years of confirmed experience in defending and arguing appeals to the state and federal Courts.

But what makes a case a winner or loser on appeal? Of course, it is impossible to say that an appellant will always or never win, a major key to the likelihood of success in a case is what is known as the standard of review.

In general, an appellate court will apply one of two standards of review. The first standard is a de novo standard. This means that the appellate court is taking a fresh look at the issue and, at least in theory, is not deferring to the trial court’s decision at all. In other words, this means that the appellant merely needs to show that the trial court ruled incorrectly in order to make the appeal successful. This is typically the standard of review when the only issue is the interpretation of a statute or legal rule. Therefore, this standard is comparatively easy for appellants and means that a successful appeal is more likely than a higher standard.

The other common standard of review is the abuse of discretion standard. This standard is much more difficult than the de novo standard and means that it is much more likely that the appeal will be unsuccessful. Under the abuse of discretion standard, the appellant must go beyond merely showing that the trial court was wrong and instead show that the trial court could not reasonably reach the conclusion that it did.

For example, the credibility of a witness is reviewed only for an abuse of discretion because the trial court can take note of the witness’s mannerisms, see the witness’s eyes, listen to the witness’s tone of voice, and observe other indicia of a witness’s truthfulness and ability to recall. By contrast, a jurist on an appellate court cannot make those observations but must, instead, rely upon the words of a transcript.

As a result, the appellate court is extremely reluctant to reverse the trial court when the issue is a credibility finding because the trial court is, generally, in a better position to observe credibility. Consequently, the appellant must produce overwhelming, objective evidence to show that the credibility finding was incorrect. Therefore, this standard of review is very difficult to meet and results in comparatively few successful appeals.

So, what is the bottom line? The bottom line is that your attorney is the best person to tell you what your chances are on an appeal. Our attorneys have appeared at levels of the Judiciary in the State of Minnesota and beyond.

For questions pertaining to the litigation appeal process, please call Boris Parker at (612) 355-2201 for a free telephone consultation.

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Parker & Wenner Attorneys at Law

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