How to Evaluate a Case for Appeal
How does an appeals lawyer determine whether a case is worthy of appeal? There are three steps to the analysis.
1. Was there reversible error?
What are the issues for appeal and was the alleged error preserved? To answer this question one might ask whether the judge had the opportunity to correct the alleged error. For example, in the context of a evidentiary ruling:
- Did the specific ruling, act, or omission by the trial court affect a party's substantive rights or the case's outcome?
- Did trial counsel object?
- Was the objection proper, appropriate, and suggestive of a proper course of action that was rejected by the trial judge?
2. What is the standard of review?
The standard of review is the lenses through which each issue on appeal is examined. They are:
Plenary Review. This is the highest degree of scrutiny, permitting the appellate court to review even the smallest errors of law. As a rule of thumb, the question is whether the lower court committed a mistake of law of sufficient magnitude to require that the judgment be reversed or vacated.
Clearly Erroneous. This is the intermediate degree of scrutiny, typically applied to factual findings. As a rule of thumb, where there are two rationally permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous. At trial, the finder of fact is also permitted the luxury of determining credibility.
Abuse of Discretion. This is the lowest degree of scrutiny, typically applied to the lower court's discretionary decisions and conclusions. As a rule of thumb, if an issue before the lower court can be decided in different, but equally plausible ways, then the abuse of discretion standard likely applies on appeal.
3. Does legal precedence prevent reversal?
When a point or principle of law has been officially decided or settled it will not typically be reconsidered unless for urgent reasons and in exceptional cases. A careful analysis must be made to determine whether the facts of the current case differ from that of the precedence setting case(s). If so, there can be reason to extend the case law. In the alternative, there may be reason to overturn established precedence.