Friday, April 6, 2012

Should I Appeal?

Osgoode Hall, 1856 (currently home of Ontario Court of Appeal, Divisional Court and Law Society of Upper Canada); photo credit: Library and Archives Canada, creative commons licence

Lately, lots of clients and prospective clients have been asking me the very brief but important question: "Should I appeal?" Wrapped up in those three words are all sorts of hopes, fears and realities, at least some of which I'll try to sort out for you in this post.


First the hopes. The fundamental hope is that the appeal will improve upon the results at trial. When clients ask me what their chances are on appeal, I officially need to tell them: "it depends." Depends on the law and facts at their trials, on which judges they draw on appeal, and perhaps in which directions the judicial appellate winds are blowing in Canada during a particular year for the legal issues which can be best contested on appeal.

But statistically, I can tell them that about 1/3 of criminal appeals succeed, and about 1/4 of civil appeals are successful. That criminal appeals have a higher rate of success is quite consistent with the courts wanting to do everything possible to protect the rights of the accused from wrongful convictions, or serious rights violations. These factors don't come into play in civil appeals. But even a one in four chance still isn't bad odds. In fact, your odds on appeal may be as good or better as your odds at trial.

One does need to be realistic about the likely outcome of even a successful appeal. Here the civil outcomes may be better than the criminal outcomes. In the criminal world for successful conviction appeals the outcome is likely the ordering of a new trial. Not really such a bad result, because the conviction is overturned, but you need to be prepared both psychologically and financially for another trial. The Crown won't always proceed with a new trial, but you need to be prepared just the same.

Successful sentence appeals in criminal matters are more to the point: either the court of appeal will substitute an appropriate sentence itself, or less commonly will send the case back to the trial judge for resentencing based on the correct legal principles. A new sentencing will, in any case, still be a relatively quick process compared to a new trial.

It is rarer for a court of appeal to overturn a criminal conviction and enter an acquittal itself - rather than letting the trial court reconsider if an acquittal is justified during the course of a new trial - but it does happen. Retaining a skilled and experienced appellate lawyer will ensure you maximize your chances of an acquittal on appeal.

On the civil side of appeals you don't see these same tendencies towards ordering retrials. New trial orders do occur, but courts of appeal dealing with civil matters seem more open to correct the errors of lower courts through proactive action in order to bring some finality to proceedings.


Next the fears. You might wonder: could things get worse if I appeal? Probably not. At least in criminal matters. Starting an appeal can always invite a cross-appeal from the other side - either in retaliation for daring to appeal the trial judgment, or because your opponents figure that if they are going to be paying legal fees to respond to your appeal, they might as well appeal themselves which might not require expending much more in the way of legal fees that just responding without cross-appealing.

This appeal in retaliation or because you're going to be there anyway decision process generally doesn't come into play in criminal proceedings, where the Crown's decision making is governed by what is in the public interest. So appealing your conviction or sentence will usually mean at worst that you are stuck with the trial result if you lose, not that you'll get convicted of extra offences or have your sentence increased.

Unless you can negotiate some kind of binding agreement with the parties after trial where all agree not to appeal, I tell clients not to base their appeal decisions on what the other parties might or might not do. If everyone has 30 days to appeal, you can't wait until the 29th day to determine if an opposing party will appeal before deciding on your own appeal. Sound appeal decision making needs to start on the day of judgment, so that you have the full 30 (or fewer) days to assess your appeal prospects, grounds, and the resources you will use to pursue the appeal.


Lastly the realities. An appeal will cost you more money, after you may have already spent quite a bit on your criminal defence or civil claim at trial. It might cost less or more than your trial cost, depending on the length of your trial as well as the complexity and number of the issues to be appealed. Plus you'll need to budget for transcript costs, which can be in the range of $500 or so per day of trial (you usually need 5 copies to be ordered if proceeding to a court of appeal - but depends on how many judges will be sitting on your appeal, and the local rules of court).

The upside is that appeal costs are much easier to predict in advance than trial costs. Most lawyers (at least criminal lawyers) will usually quote you a flat fee for their fees on an appeal, so you can assess in advance if it's worth it to you. You'll be faced with the age old dilemma: I've already spent so much at trial, how can I possibly stop fighting now when I do have a reasonable chance of success on appeal? - versus - should I just cut my losses and stop fighting now?

One way to resolve this dilemma is to retain a lawyer just to give you an opinion about your prospects of success on the appeal, before committing to a full blown appeal. However, because that lawyer will often need to see the trial transcripts in order to give you an opinion, and your notice of appeal will usually need to be filed within 30 days of the trial judgment, you might be best off just hiring someone for the whole appeal in order to avoid transcript delay and having to file a protective basic notice of appeal.

So, should I appeal? I would say the answer is definitely "YES" if your case isn't totally hopeless (these are rare) and there was a big downside to the trial judgment (getting a criminal record when you never had one before, having to serve a long prison sentence or pay a large fine or large award of damages in a civil case, or you lost an important argument on a point of principle).

You should canvass appellate lawyer fees before deciding you can't afford an appeal. Because you may be able to receive a fixed price quote, and the only significant disbursement may be the transcript costs, an appeal could actually be more affordable than you thought it would be.

For instance, I'm often able to conduct appeals for clients across Canada at rates that are competitive to local counsel. I don't charge clients any extra for travel costs because appeals represent a significant investment by a client for which I will devote quite a bit of time, appeal hearings usually take less than a day (unlike trials that can drag on for weeks), and certain preliminary matters like bail pending appeal applications or other motions can be dealt with before a court of appeal by way of video or teleconference. For Federal Court and Tax Court matters, hearings are held throughout Canada so there can be some choice as to where a case proceeds. Plus my office is close to the Supreme Court of Canada, if you're considering an appeal from the judgment of a court of appeal (usually you can attempt two appeals - each to a higher level of court - and sometimes three appeals are possible).

But in getting a fair answer to the question "should I appeal?" make sure you consult counsel with appellate experience. For example, I have appeared as appellate counsel several times before the Supreme Court of Canada, and many times before provincial and federal appellate courts.

The appeals process is quite different from the trial process, and legal rather than factual arguments predominate. Your lawyer needs to understand what appeal judges want to read in the extensive written arguments which are filed, how to craft trial facts based on the trial evidence transcripts and exhibits in the way which most persuasively supports your legal argument, how to pitch nuanced points of law to the appeal court, and how to present an oral argument that removes any doubts which remain among the appeal judges about the correctness of your written submissions which they'll have received long before the hearing of the appeal.

The wide (but not unlimited) availability of appeals within Canada means that being a party to litigation (whether as an accused, a civil plaintiff or defendant, or in administrative proceedings involving government) involves being prepared for more of an endurance race than a sprint.

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