My practice includes appellate litigation in state and federal courts. Most often, I am recruited to join the litigation team soon after a ruling or finding has gone awry. As such, I am the new lawyer on the team, at the start of the appeal, the occasional second half of litigation. There are always many questions, but the key questions concern the likelihood of success on appeal and whether to file the notice appeal in the first place.
Evaluating the merits of an appeal in an “easy” case
In an “easy” case, I can evaluate a single issue appeal in two to three hours, and then share my opinion with the trial lawyer and client. A decision can then be made to file the notice of appeal, or not. It is nice when it happens this way, but it only happens this way in a small percentage of the cases for the simple reason that most legal issues are not simple and most cases (or “records”) are much more complicated than a single legal issue.
Evaluating the merits of an appeal in an “hard” case
In a “hard” case, it can take ten to 20 hours before I will have an initial opinion to share with the trial lawyer and client. Time permitting, this work can be completed to inform the decision to file the notice of appeal. It is nice when it happens this way, but it only happens this with advance planning.
Evaluating the merits of an appeal in a hard case, with a large record, multiple issues, and much at stake
In the hard cases, where there is much at stake, and the merit of the potential appeal is uncertain, sometimes all you can do before the deadline to appeal is to determine that the appeal is colorable, in good faith, and has sufficient merit to move forward. Then, after the notice of appeal has been filed to protect the deadline – and this next point is key – the decision to appeal can and should be revisited at each new phase of the work, until such time the decision to appeal is plainly justified, or not. In those cases where the decision to appeal turns out not to be justified, the appeal may be dismissed.
Moving forward one step at a time in a hard case with no answers for a good result
The best example I have of such a hard case, with far more questions than answers at the start of the appeal, is the case of O’Donnell-Lamont & Lamont (260 KB). In this appeal, I eventually won a unanimous 7-0 decision by the Oregon Supreme Court, in which the Oregon Supreme Court applied a recent holding from the United States Supreme Court and reversed the Oregon Court of Appeals in favor of my clients. At the start of this appeal, however, I did not know what I could accomplish and nothing was certain other than my client could not accept the loss in hand. By the end, however, this appeal was a big victory, restoring custody of two small children to my clients, the maternal grandparents. This unanimous 7-0 decision by the Oregon Supreme Court was also an important victory for children throughout Oregon because it established the legal precedent to be applied in third-party child custody disputes, affording more protection for the best interests of children.
There were also several key accomplishments along the way. Until this appeal, the Oregon Court of Appeals had never granted reconsideration en banc, meaning by the full Court of Appeals, with all ten judges participating. Later, after the Court of Appeals denied my clients any relief in a split 5-5 decision, the Oregon Supreme Court accepted this appeal as the vehicle to resolve a number of similar third-party custody issues in Oregon. The other similar pending cases involving the same subject matter were placed into abeyance (on hold) pending the outcome of this appeal. So, in the end, the Oregon Supreme Court reversed the Court of Appeals in my case, and the other cases too. All this from an appeal where, in the beginning, the merit of the appeal was uncertain and legal precedent was against us.
