The reality of appealing a verdict to a higher court

Got this from John Ross’s review of federal circuit decisions:

“This court once observed, ‘[w]hen a party comes to us with nine grounds for reversing the district court, that usually means there are none.’ [Plaintiff] comes to us with twenty-seven.” So writes Judge McKeague of the Sixth Circuit, affirming the district court.

The percentage of successful (overturning a decision) or semi-successful (reversing and remanding) a lower federal court verdict was around 12 percent in the 1990s. I’ll bet the number hasn’t gone up much.

There are a number of reasons. (I learned this from a lawyer I worked for who was successful in an appeal.)

First, when a lawyer steps outside the courthouse to announce he and his client will appeal a verdict they don’t like, he’s actually saying, “We’ll have to take a careful read of the transcript because what we’d be appealing would be the way the judge conducted the trial. And we have to find things the judge did which wrongly influenced the outcome.” One would hope there would not be nine — or twenty-seven — grounds for reversal. That does seem somewhat…mmm…hysterical?

Next, when someone does file an appeal and argues that the judge made mistakes, he is appealing to a higher court consisting of justices who might very well have served on the lower court with the judge the lawyer is criticizing in his appeal.

And that lower court judge might someday be sitting on the higher court. With them.

Judges do not like to criticize each other unless the circumstance is egregious.

And if appellate justices do reverse and remand a lower judge’s decision, they’re sending the case back to that same judge for re-trial. Who, I’m sure, will be (a) not happy about the rebuke; (b) not happy with the lawyer who filed the appeal; and (c) very, very, pointedly careful to handle the trial with scrupulous attention.

A lawyer filing an appeal has to consider all of the above in doing so, with his chances of any success being maybe 12 percent.


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