As much as we’d like to believe that the American legal system is infallible, the process occasionally invokes error. The range of errors can be small (such as the court’s refusal to grant an extension for a document’s filing) or large (like the denial of a key piece of evidence). If you believe that an error has cost you a win at trial or otherwise reduced the amount awarded to you, it may be time to consider hiring an appeal attorney to appeal your verdict.
An appeal is the legal equivalent to going over your boss’s head to make a complaint. The appeal attorney presents this complaint before a panel of appellate judges with the power to review your trial judge’s actions and, if persuasive, can result in a remand (i.e., an order for a new trial) or reversal (i.e., judgment entered for you as a matter of law). If not persuaded by your argument, the appellate court cannot cause you to lose more; it cannot, upon review of the case, find that you actually owed a different amount than what was found at trial.[1]
It is ultimately your decision as the client to decide to file an appeal following trial. Unfortunately, while the decision depends on careful consideration of the costs and benefits of appealing, it is instead thrust upon you in the immediate aftermath of an often stressful and exhausting trial experience–and as the decision to appeal implies that you have in some way lost, you are likely to be a tad bit emotional and frustrated.
The following is intended as a non-exhaustive guide to assist you in this decision and help frame your questions going forward.[2]
- Procedurally, can you file an appeal?
Generally speaking, an appeal can only be filed following a “final judgment on the merits” of an action.[3] Typically, this occurs when a jury returns a verdict and the judge “enters it” into the trial record. A “final judgment” is a conclusive ruling on the issue before the court.[4] It conclusively discharges a claim or issue between the parties. A claim or issue is discharged “on the merits” when the substance of the claim is evaluated in a legal context. Therefore, a court’s dismissal of an action for want of prosecution or improper service of process (i.e., procedural violations) do not permit appeal, but the granting of a summary judgment motion would.[5]
Once you have established that your issue meets the standard of appealing, you must also ensure it is filed in an appropriate amount of time. The default rule states that the notice of appeal must be filed within thirty (30) days after the judgment you are contesting is signed.[6] However, this deadline is extended to ninety (90) days if any party to the case requests (1) a new trial, (2) a modification of the judgment, or (3) findings of fact and conclusions of law from the trial judge.[7] In rare cases, when neither you nor your attorney receive notice of the signed judgment, a request for additional time may be filed fifteen (15) days after receiving notice, but in no instance later than ninety (90) days of the signed judgment.[8]
Practically speaking, in the aftermath of your trial, you will likely have a few days before the judge officially signs a judgment starting the appellate timetable. However, once the order is signed, you will have thirty (30) days to decide whether to appeal, although it would be wise to let your attorney know as quickly as possible, so they can extend your time to submit the appeal itself.
- Cost and Time Investment
If you have already gone through the time and expense of the litigation process, you are no doubt well-aware of the multitude of costs involved. These costs also accompany appeals. In addition to the filing fees and assorted court costs, the appellate process generally requires the submission of both the clerks’ and reporters’ records—a copy of each document or exhibit filed in the case, along with a transcript of the trial itself. Depending on the size and complexity of your case, these documents can number in the thousands, and will be costly to assemble.
If your loss at trial has resulted in an adverse judgment, then to prevent the victorious party from enforcing it you will be required to supersede the judgment by posting bond with the court while your appeal is considered. Further, if the trial court has allowed for “post-judgment interest,” each month you delay in paying the winning party will result in accrued interest.[9] While you may be excused from payment during the appeal process, the months (if not years) which pass in the meantime will ultimately be added to your owed amount, and you will be responsible if your appeal is unsuccessful.
An additional cost to consider is the billing of your appeal attorney during the appellate process. Between the time spent reviewing relevant documents in the clerks’ and reporters’ records, researching appropriate case law, and drafting and editing the appeal (which may range up to and past 50 pages in length), the cost to appeal may soon resemble the cost to try the case at the trial level.
- Ability of Representing Lawyers to Appeal
This leads into our next point—while almost all lawyers are familiar with the appellate process, less are well practiced in the nuances of making an appellate argument. Many smaller, cost-effective litigation firms (which are more accessible to the general public) lack the regular experience in appellate brief writing necessary to ensure a fighting chance for your appeal. If this is the case, your appeal will likely have to be outsourced to an appellate-law specialist, which may lead to additional problems and costs, as the appellate attorney has not been involved in your case up to now, and their ability to successfully appeal your issue will depend on the communication between your trial lawyer and the appeal attorney—both of which are likely to bill for the time spent.
Other firms, like the Tough Law Firm, feature in-house appeal attorneys who can provide real-time feedback on the potential success of an appeal. Firms with such vertical integration greatly benefit from close contact between the lawyers who represented you at trial and the appellate attorneys who will handle your case moving forward.
- Do you have an appealable error?
Texas law permits appealing “judicial errors”—when the court, and by extension the trial judge, made a serious enough mistake that in the absence of the mistake the case would likely have turned out differently, and the error was properly preserved at trial through an appropriate method.[10] The rules governing the preservation of judicial error are complex enough to fill textbooks, and so we won’t address them here, but instead suggest you consult with your attorney and make sure that the error you wish to appeal was actually preserved. Generally, so long as your attorney made some sort of “complaint” to put the trial court on notice that it may have done something wrong (such as objecting to the introduction of evidence at trial), the error will have been preserved.
Appellate courts are significantly less impressed by arguments of “jury error.” Essentially, if your primary argument on appeal is that the jury (or the judge acting as a factfinder in a bench trial) came to an improper conclusion even though all the evidence was put in front of them, the appellate court is likely to defer to the factfinder’s opinion and affirm the trial court judgment. Therefore, your unhappiness at an amount awarded to or against you is unlikely to merit reversal or remand in and of itself.[11]
Finally, you should be cautious of filing an appeal without good reason. So-called “frivolous appeals” are those that have no reasonable basis in law and do not constitute an informed, good-faith challenge to the trial court’s judgment.[12] If the appellate court finds that your appeal was filed for an improper reason—such as an attempt to delay payment or further drain your opponent of financial resources—the court is within its rights to sanction both you and your appeals attorney.[13]
- What Level of Appeal Are You Seeking?
Texas Appellate Courts possess mandatory review. This means that if you meet the procedural requirements to file an appeal, our appellate courts must review your brief and render a decision, no matter the strength of your case or the amount in controversy.[14] Conversely, the Texas Supreme Court possesses discretionary review—it may choose which cases to address, and rarely examines cases absent a compelling reason, which typically entails resolving contentious or unaddressed questions of law. Therefore, if you appeal from trial on the basis of some factual issue and the appellate court also disagrees with you, it may not be worthwhile to attempt a further petition to the Texas Supreme Court unless you can convince it of the singular importance your case presents. To paraphrase a cherished law professor, the Texas Supreme Court functions as an interpreter of the law, not an arbiter of injustice.
The Texas Supreme Court wields its discretionary review quite literally. As of 2022, it accepted only 13% of submitted petitions for review.[15] Of the 13%, however, 59% resulted in a reversal of the appellate court’s ruling—and a further 9% in a modification.[16] This suggests that the odds of having the Supreme Court take your case after an unfavorable appellate court ruling are slim, but if your petition is granted, there is a better than even chance that you’ll derive some benefit.
6. The Appellate Judge Likely Won’t Review the Entire Case
Television and media tend to create an image of judges as infallible, hyper-intelligent legal mavericks with a deep understanding of whatever law needs to be applied in any given situation. While many judges approach this description, they are only human, and the judicial system relies on the assistance and input of many employees not recognized on the big screen.
Pertinently, Texas appellate dockets typically balance hundreds if not thousands of appeals at any one time, each involving unique facts and creative legal arguments for why a particular outcome should result. To assist judges, appellate courts often hire law clerks—law students, recent graduates, and lawyers who review the briefs submitted by your appeal attorney, outline the merits and weaknesses of your argument, and then succinctly summarize their findings to the judge who makes the ultimate decision.
This means it is unlikely the appellate judge will ever fully review the record of your case absent personal interest in the law being applied. Instead, they will receive a summarized review by a court employee, which may or may not fully capture the arguments made by your attorney—particularly if your argument relies on extremely subtle differences of fact or law.
7. Appellate Judges are less likely to be persuaded by emotion
This heading is fairly straightforward. As discussed above, the appellate system is designed to correct errors of law which prejudiced a party in presenting their case. Emotionally charged cases such as a wrongful-death action of infants killed by product defects or the eviction of a poor and elderly widow from her home may tug our heartstrings, but distressing stories alone will not win an appeal absent legal error. Appellate courts are instructed to focus on judicial error rather than rendering an equitable solution.
More cynical observers will suggest that judges typically have a desired outcome upon reviewing the facts of the case and thereafter tailor their interpretation of the law to ensure said outcome. While this is certainly a possibility, it is an unreliable basis to appeal to merely hope that one will receive a sympathetic judge.
8. The Ultimate Cost of Victory
Unfortunately, even a successful appeal doesn’t guarantee a happy ending. Unless the error made in your case is one which dictates your victory as a matter of law, the appellate court is likely to remand the case and order a new trial, with the trial judge now on notice not to commit the error made previously.[17] This will restart the majority of the process over again, with all the attorney costs and time investments.
Therefore, a successful appeal often results in a settlement between parties, where neither party gets all they wanted, but both agree a settlement is a better option than enduring trial again. Thus, it may be wise to consider whether the ultimate costs of obtaining only partial victory are worth the appellate process.
Conclusion
If you and your attorney feel you have been wronged during your case, an appeal may be your avenue to justice. However, it is important that you make the decision in full knowledge of the accompanying risks, costs, and odds. I hope that this short introduction to the appeals process has helped in this regard.
The appellate attorneys at the Tough Law Firm are highly experienced in filing civil appeals to reverse decisions that do not follow the application of law that should be applied at trials, as well as defending favorable judgments and verdicts that are appealed by opposing parties. I invite you to contact the Tough Law Firm to assist you moving forward.
Want to do further research on the workings of the Texas appellate court system? Follow the below link:
[1] Note, however, that if your opponent files a counter-appeal against you, they might succeed in some argument that does, in effect, cause you to lose more.
[2] This article is designed to present a general summary and list of aspects to consider for appeal. It is not intended nor designed to be comprehensive, nor a replacement for legal advice from a qualified professional.
[3] As of 2023, Texas law also required the amount in controversy to be at least $250 to appeal a decision by a county or district court, but this minimum requirement is rarely an issue.
[4] Note also that the logic behind a “final” judgment means you cannot appeal a trial court’s decision to grant a new trial.
[5] The law also allows for certain appeals during trial, such as interlocutory appeals or writs of mandamus. Interlocutory appeals permit appealing in the absence of a final judgment in situations like: (1) the appointment or revocation of a receiver or trustee or (2) the appointment or revocation of a temporary injunction. Civ. Prac. & Rem. Code § 51.014. Mandamus is an extraordinary remedy when the typical appeal process is insufficient—such as a judge enforcing a forum-selection clause or compelling the disclosure of protected material like trade secrets. Mandamus typically applies to errors of law or arbitrary decisions by the judge, and is rarely granted.
[6] Tex. R. App. P. 26.1.
[7] Tex. R. App. P. 26.1(a).
[8] Tex. R. App. P. 4.5(b).
[9] Post-judgment interest in Texas can range from 5-15%. See, e.g., Tex. Fin. Code § 304.003(c).
[10] See Cohen v. Midtown Mgmt. Dist., 490 S.W.3d 624, 627 (Tex. App.—Houston [1st Dist.] 2016, no pet. (holding a judicial error as “an error arising from a mistake of law or fact in the judgment as rendered that requires judicial reasoning to correct.”).
[11] There are standards for appealing “jury error”, but such standards typically only come into play when the jury reaches a judgment that “no rational jury” could possibly have reached—a high bar for your appellate counsel to argue.
[12] Bridges v. Robinson, 20 S.W.3d 104, 111 (Tex. App.—Houston [14th Dist.] 2000, no pet.), disapproved of on other grounds, Telthorster v. Tennell, 92 S.W.3d 457, 464 (Tex. 2002).
[13] Tex. R. App. P. 45.
[14] Note that there is no requirement that appellate courts fully review your appeal. It is common practice for appellate courts to dismiss an appeal on procedural grounds (i.e., failure to preserve error) and cease their analysis rather than engage in “what-if” exercises of often-thorny legal questions.
[15] See Texas Judicial Branch Annual Statistical Report for the Texas Judiciary, FY 2022, pg. 113.
[16] Id.
[17] Do note that the trial judge may not be thrilled by your efforts to establish their misinterpretation of the law. While most judges resolve to remain professional, there are instances and allegations of unfavorable treatment in the aftermath of reversals.
