7 Questions to Ask Before Appealing

If you are a party to a lawsuit, there is an inescapable risk that you might lose — whether on a specific issue or with respect to the entire case. But a “loss” is not necessarily the end of the story because our system of justice gives opportunities for litigants to appeal to a higher court. Nevertheless, having the ability to appeal an adverse decision does not mean it is the best decision for you under every circumstance. Whether or not an appeal is worth it will depend on a variety of economic and non-economic factors that will be different in each case, but any litigant considering an appeal should carefully think about the following topics and discuss their impact with their attorneys:

1. What type of appeal would I take?
   The first thing to know is that not every issue is automatically appealable. The most common appeals generally fall into one of two categories: appeals of a final judgment (typically issued at the conclusion of a lawsuit) and appeals of interlocutory orders (orders issued before a final judgment). Appeals of interlocutory orders are further divided into appeals that can be taken as a matter of right and appeals that can be taken only if permission is granted by the trial court and the appeal is accepted by the Court of Appeals. If your issue falls into the second, discretionary category and leave is not granted, you will have to wait until after a final judgment is issued before you can appeal the issue. Varying procedural nuances for each category of appeal mean that identifying which type your issue falls into is critical to ensuring your appellate rights are preserved.
2. What rubric will the appellate court use to determine the outcome?
   Courts of appeal will examine different issues through different lenses called “standards of review,” and the application of certain standards of review can dramatically affect the likelihood of prevailing. For example, in Indiana, courts of appeal will only look at a trial judge’s decision to exclude evidence for an abuse of discretion, which happens when a trial court’s decision is “clearly against the logic and effect of the facts and circumstances before the court” or when a trial court misinterprets the law. This standard is very deferential to the trial court’s decision and can be difficult to overcome. However, if you were instead appealing the denial of a motion for summary judgment, the court would review the same motion and evidence as the trial court using a de novo standard, which essentially means the appellate court is giving a second opinion without any deference to the trial judge’s decision. The standard applicable to your issue may impact your chances of success and should be factored into your decision-making process.
3. What arguments can I make on appeal?
   Regardless of the type of appealable issue, you will need to identify an error made by the trial court. Initiating an appeal is not an opportunity to introduce new evidence or legal theories, and an appellate court is only going to consider what was presented to the trial court. Appeals provide a chance to correct errors committed by the trial court—they are not a chance to deploy a different strategy because the original strategy was not persuasive enough. Appeals also often require litigants to pick and choose their battles. Even if there are numerous errors in your case that could be appealed, the most successful appeals only challenge a few issues because asking a court to review too many issues can distract the court from your best arguments. Moreover, if you include too many issues, you may not have enough pages in your brief to effectively argue each point.
4. How much will it cost?
   Appeals can be expensive. At a minimum, any appeal will require time for performing legal research and drafting briefs to submit to the Court. Appeals may also require the compilation of a written record, the filing and briefing of motions, and the preparation for and attendance at an oral argument in front of the appellate court. The time spent on these tasks will vary considerably based on the complexity and novelty of the issues presented. Additionally, if the appeal is of a monetary judgment, the judgment remains enforceable unless the appellant stays enforcement by giving a bond, irrevocable letter of credit, or other form of security approved by the trial court.
   But there are other costs to consider too. For example, many interlocutory issues do not dispose of the entire case, so the appealing party still must bear the remaining cost of trial court litigation after the appeal. In the most extreme case—an appeal from the denial of a motion for a new trial — the appealing party, if successful, will have the burden of paying for a new trial that still might yield an adverse result.
5. Am I prepared to extend litigation?
   Litigation is unpleasant and invasive. It is very easy for a litigant to become emotionally and intellectually worn down by a lawsuit. Appeals can take months or even years to play out, and in many situations, they do not fully resolve the lawsuit.  Also, an appeal does not, by itself, put a hold on proceedings in the trial court. Stays may be granted under certain circumstances, but if not, you may have to fight battles in the appellate court and the trial court at the same time.
6. Are there unique circumstances to consider?
   There are likely special circumstances specific to your case that could tip the scales one way or the other. An appeal could be a good approach if a final judgment was erroneously entered against you on a claim that may negatively impact your reputation or ability to conduct your business. An appeal may also be justified if an adverse decision involved an issue that is likely to come up again for you. For example, if the adverse decision involved an incorrect interpretation of a contractual provision commonly used by your business, it could be prudent to initiate an appeal to try to keep the provision enforceable and to prevent another party from deploying that interpretation against you in a subsequent dispute. Relatedly, you could be faced with uncertain, unsettled, or underdeveloped law in a particular area that may affect you in the future. In such a case, an appeal may be worth it so the law can be clarified. Besides circumstances impacting you directly, a credible appeal could also, under the right circumstances, bring an otherwise recalcitrant party to the settlement table because the party, who will need to respond to your appeal, must think about the same burdens of an appeal.
7. What is at stake?
   Finally, you should carefully consider what is at stake if you do not appeal. A “loss” on a relatively minor issue should be evaluated differently than a multi-million-dollar judgment. Not every plausible error will result in a material impact on your case, but some will. A critical part of your decision-making should be weighing the cost of doing nothing against the costs and burdens of the appeal.  Sometimes doing nothing is more costly than appealing; sometimes appealing is more costly than it is worth.

Nobody likes to lose. But the desire to win is not the best metric for deciding whether to appeal a court order. While the seven questions above are not an exhaustive list of queries that may apply to your unique circumstances, they represent a few fundamental considerations you should be thinking about and discussing with your attorney when faced with the choice of appealing an adverse court decision.

© Riley Bennett Egloff LLP^®

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Posted February 11, 2025, by Patrick S. McCarney