Monday, March 5, 2012

Appeals Work, But Pick Your Grounds Carefully

The Supreme Court of Canada - The Highest Court of Appeal
Photo credit: Stephen Boisvert
Although we all hear about these cases that supposedly go on forever because of appeal after appeal, the reality is that very few people appeal any judgment against them. Or in fact have a right to appeal. But appeals work. And even where there are no appeal rights, there are other ways to effectively get the same result of bringing your case before a higher court.

I find I have my greatest legal successes conducting appeals on behalf of clients, because I can control most of the positive and negative factors affecting case success. Extreme appeal preparation - involving a painstaking review of the trial record, exhaustive research of the jurisprudential authorities and careful crafting of all the written materials to be presented before the appellate court - will always pay off in results for an appeal. While extreme preparation for a trial will always yield benefits, I find there are a lot more factors out of the control of legal counsel at a trial and a lot more surprises where successful counsel will adapt and roll with the trial punches, but it is experience rather than preparation that could be more important at trial.

There is appeal potential in just about any legal proceeding. But there are a few things you need to know about appeals.

1. Appeal periods can be very short. Meaning, because the time when a court decides against you and the latest time by which you are permitted to appeal to a higher court is often around 30 days from judgment (although it might be shorter or longer), you need to be thinking of appeal grounds before the judgment happens.

2. Appeals are largely based on errors of law, not fact. So don't expect to just rehash the trial facts before a higher court - it won't get you anywhere. Whether you can only appeal errors of law, mixed fact and law, or fact alone, will depend on the type of appeal and level of court, but generally your appeal should focus on the law rather than the facts.

3. Appeal procedure is based on the rules of court and complete legal documents. While some trial courts - especially criminal courts - don't have a whole lot of rules or a whole lot of use for written submissions, all appeal courts love rules and documents. Rules so precise they may tell you the font and type size you need to use in your factum, and which colour the covers of the factum need to be. If you ignore the rules, an appeal court usually won't even let you file your argument.

4. Occasionally you will have a right to appeal, sometimes you must apply for "leave to appeal," and on occasion there will be no appeal route. Although where there isn't an appeal, a judicial review or prerogative remedy application to a higher court always has potential. Appeals rights are generally based in statute, so you need to look in the legislation you are operating under to see if it provides for appeals, in which circumstances, and to which court.

5. Appeals usually require transcripts of the trial proceedings. So make sure you order these transcripts early, since they can take a while to prepare. And be prepared to pay lots for them if you were involved in a long trial. Transcripts are your best friend in an appeal - one can often find all sorts of wondrous errors lurking in their depths, but only after careful study.

6. Appeals can take quite a while to be heard. How long will depend on the court you are appealing to. But you should also be thinking about asking for bail pending appeal in a criminal matter, or possibly a stay of judgment pending appeal in a civil matter, since you don't want your appeal to be moot by the time it is heard through having served all of your sentence or already fulfilled the lower court's order which are seeking to have reviewed.

7. Successful appeals which get the attention of appeal judges require lots of creativity that is properly channeled into cogent, comprehensible legal arguments tied to both the evidence and the law. These arguments need to be properly framed in: (a) the notice of appeal which sets the stage for the argument, (b) the factum containing the written legal argument, and (c) the oral argument. One needs to be strong in all three areas to succeed in an appeal. A great written and oral argument will go nowhere if they don't have solid grounds of appeal set out in the notice of appeal to build on. A great oral argument may find a very unreceptive court if the lifeless written argument has already so underwhelmed the judges that they have already made up their mind to decide against you. A great written argument will not carry the day if counsel does the most boring thing imaginable and reads every word of it out loud to the appellate judges during the oral argument - I've actually seen this happen lots of times, and it always kills most chances of success.

8. You usually only have one good shot at an appeal, so make it count. True, some cases might have a second level of appeal to pursue, but if you were a disaster before the first court, things usually won't get any prettier before an even higher court with even more judges to scrutinize every part of your argument. For the most serious of cases trying to get before the Supreme Court of Canada is worth considering, but be aware that there are very few appeals "as of right" which get before the court, and the chances of success on a leave to appeal application are only about one in ten, generally requiring that you demonstrate the "national importance" of you issue of Canadians.

9. Even if you didn't use a lawyer at your trial, getting one for your appeal is a good idea. Because appeals are a lot more legalistic than trials, with appeal courts being intolerant of non-compliance with their rules, and impatient with grounds of appeals that come across as frivolous, appeals are harder than trial to represent yourself at. Yes, it's possible, but at an appeal you will no longer have advantages like a presumption of innocence working in your favour, or the prosecution being required to prove the case against you beyond a reasonable doubt. If you're the appellant, the burden rests entirely on your shoulders to convince the court of why it should allow your appeal. A lawyer is the one who can best make this happen.


  1. I do appeals almost exclusively these days. Interesting to note the differences and similarities between our respective legal systems. I agree that a lawyer has more control over an appeal than a trial. However, I do mostly criminal appeals and statistically, the odds are not in the criminal appellant's favor. In contrast, when I do a civil appeal it seems like a cakewalk by comparison.

  2. Interesting, since up here criminal appeals have a success rate of about 35% (including Crown appeals), whereas civil appeal have a lower success rate of about 25%. Though I think all of our appeals take up a lot more time than in the U.S., since we still have a right to oral argument on pretty much all of them - and some of us lawyers tend to make very long arguments.

  3. Maybe. All depends on the exact facts of your case and whether you file your appeal notice within the required time period.