So, things did not turn out at trial the way you hoped. We’re sorry to hear that. But your attorneys have told you that you have at least one card left to play: you can appeal to a higher court! Maybe they’re even saying that you’re as sure to win on appeal as anyone can be in the great crucible of civil litigation. After spending so much of your time and money losing at trial, appealing can seem like a no-brainer—nothing more than the routine next step defeated parties take to finally get to the right result. And perhaps the typical appellate process does not sound like a big deal to you either. An opening brief, a response brief, a reply brief, and then oral arguments? Isn’t that basically the same motion practice you’ve been dealing with the whole case, just with beefier briefing?

Why not take at least one more shot at justice?

That is a deceptively complicated question that depends heavily on the circumstances and issues of your case. Suffice to say that there are a lot of reasons why an appeal could be a bad idea. For one, most appeals fail. After all, there are reasons why the case turned out the way it did and usually it is not because of errors that are significant enough for the appellate court to reverse the outcome. See Utah R. Civ. P. 61 (“Harmless error”). For another, it can be hard to know if your decision has been overly influenced by the sunk cost fallacy. Even if your attorneys are encouraging you to appeal, how do you know you’re not throwing good money after bad?

Fortunately, there is at least one metric to help you determine whether you’re in for a relatively cheap appeal that has a decent chance of success, or a more expensive appeal that is very difficult to win. Ask your attorneys what your “issues on appeal” would be and what the “standards of review” are for those issues (and what will happen if you win so that you know you are appealing a material issue). Their answers can generally be grouped into three categories, and the more expensive an issue is to appeal, the less likely it is to succeed:

1. Appealing a “conclusion of law” that is reviewed for “correctness” is generally the cheapest issue to present on appeal with the greatest chance of success. See Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 42, 513 P.3d 729. On such issues, the appellate court gives the trial court’s reasoning “no deference” and considers the legal question as if for the first time. Id. Appealing such issues thus gives appellants a true second chance at persuading a court to interpret the law their way. Appeals solely on legal conclusions can also take significantly fewer hours worked (and accordingly, fewer hours billed by your attorneys) than trial did because there is neither the need nor the opportunity to develop further evidence on appeal. Everyone, including the appellate court itself, is stuck with the same frozen record and a purely legal issue often does not require much review of that record.
2. But appealing a discretionary decision by the trial court is a tall order. Such decisions are reviewed for “abuse,” and proving abuse of discretion is a “heavy burden” that will only succeed if you persuade the appellate court that “no reasonable person would take the view adopted by the trial court.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (emphasis added). While abuse can be shown in multiple ways—e.g., “(1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the evidence clearly preponderated against the finding; or (3) such a serious inequity has resulted as to manifest a clear abuse of discretion,” id. ¶ 44—it is worth keeping in mind that the ultimate question the appellate court is asking is if no reasonable person would agree with the trial court’s decision. Believe it or not, it is pretty uncommon for someone appointed to be a judge to make a totally unreasonable decision. And trying to persuade the appellate court that has happened in your case can require more extensive research, creative brainstorming, and refined drafting (i.e., more time and money) than challenging a pure conclusion of law does.
3. Finally, challenging findings of fact on appeal is both exceedingly difficult and the most expensive. Findings of fact, by either the jury or the court in a bench trial, “will not be disturbed unless they are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. “A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Id. (quotation simplified). To show clear error, a party should “marshal”—that is, summarize on appeal—the evidence supporting the challenged finding and then show why it is legally insufficient. Horning v. Labor Comm’n, 2023 UT App 30, ¶ 31, 529 P.3d 352 (“[A]n appellant failing to marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous will almost certainly fail to carry their burden of persuasion on appeal.” (emphasis added)). Unlike challenging a pure conclusion of law, challenging a finding of fact thus requires comprehensive review of the record and detailed drafting to marshal the supporting evidence and all the time and money that entails, which will then usually fail anyway. “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (also indicating that the appellate courts will not reweigh the evidence on appeal). For this reason, some appellate attorneys will even generally refuse to challenge findings of fact because the odds of prevailing are so low and they do not want to bill their clients the significant fees needed to, ultimately, lose anyway. Ironically, these are often the kind of issues that parties are most passionate about because they truly know for a fact that the jury or court got it wrong, but just because they believed the wrong side does not mean the evidence will be legally insufficient to support their findings. You should carefully consider challenging findings of fact on appeal as objectively as possible. If your attorneys are willing or eager to challenge findings of fact on appeal, ask them to detail specifically how they are going to show that the supporting evidence is legally insufficient to support the challenged findings.

Ultimately, the decision of whether to appeal or not should be a sober financial decision based on the balance of risk vs. potential reward, which depends heavily on the kinds of issues you intend to present on appeal. We hope this information is helpful in determining your next steps after an unsuccessful trial.

Litigation can feel like it has swallowed your whole world, and the financial stakes may be life-changing. Nonetheless, please remember that you have a life outside of your case and even after a bitter defeat, there will be a morning after and the hopefully chance to adapt to any new circumstances you face.