Saturday, January 9, 2016


You've just lost a trial or a motion in your law case. You're angry. You're disappointed. Your gut urge is to continuing seeking justice in an appeal!

I get that. My practice focusses on appeals: civil, criminal, family. I use my professional skills to evaluate clients' potential appeals, and explain to them their likely prospects of success prior to my agreeing to formally file appeals for them. For the majority of those who approach me, I agree to take on their cases because there appears to be something worth appealing. 

Where there's a reasonable chance of success in an appeal, and the overall potential appeal outcome would be in a client's best interests, I'm more than happy to vigorously use all my experience to obtain the best possible results before whichever appeal court a client might need to go to: Ontario Divisional Court, Ontario Court of Appeal, Federal Court of Appeal, Tax Court of Canada, Supreme Court of Canada. Other lawyers refer their appeals to me, in part because it's often best for a new set of eyes to take an objective look at what happened at trial when evaluating an appeal. 

But where an appeal stands no real chance of success, or the client would expend considerable resources on an appeal for an outcome that isn't likely to materially assist her or him at the end of the day, I feel ethically bound to advise that an appeal would not be in the client's best interests. I'll try to give the client other alternatives to an appeal in order to still get what the client wants and needs through other means. I'm in the business of telling clients how they can ultimately get what they want, rather than in frustrating their aspirations. But an appeal might not be the best way to get a particular result, and I'll readily tell clients if they're wasting time thinking about an appeal. 

To be clear, I'm not in the business of doing "easy" appeals. There's no such thing. The burden is always on the appellant to demonstrate to the appeal court why the lower court made an error, and why the appeal court should be bothered to do something about that error. 

Some clients won't like that answer, and will either find other lawyers to do those dubious appeals, or will undertake to do them themselves. That's their right. But everyone needs to understand that appeals are fundamentally different from trials or motions. An appeal is not just a second kick at the trial or motion "can."

Family appeals are likely the most common area where after evaluating an appeal, I'm required to tell clients that an appeal isn't a good idea. That's because the order may be very factually based, and the best tactic might be for the client to just wait six months and then bring a much less expensive "change of circumstances" motion to a lower court to change in the adverse order, rather than expending much more money and the same six months pursuing an appeal. 

Here are my top three considerations that you should take account of prior to approaching a lawyer to undertake an appeal:

1. Do you really have an error of law to appeal? Appeal courts aren't there to retry cases on the facts. They'll defer to the opinions of trial judges on factual issues, since they are the ones who hear the live witnesses, and can best judge credibility. So if your family trial case came down to mother and father testifying, and trial judge believed father, and rejected the testimony of mother, that by itself can be difficult to appeal. Whereas if the trial judge excluded all manner of relevant documentary evidence, refused to consider expert evidence, and generally misapprehended the evidence, that can be a winner appeal. 

2. Will the likely outcome of an appeal get you what you want? A typical best case outcome from an appeal is a new trial, rather than giving you everything you were originally seeking at trial. If you already went through a two week trial, and can't emotionally or financially bear the thought of doing that again, then an appeal might not be for you. There are more discrete issues that an appeal court might completely fix, like erasing a costs order, fixing serious math errors made by a trial judge, or reducing a sentence. And sometimes you goal might simply be a new trial. You just need to be realistic about what an appeal court will be willing to fix, even if there were errors in the lower court. 

3. Do you have the resources to pursue an appeal and its possible outcome of more litigation? Appeals are even more legally technical than trials. You really need a lawyer to successfully pursue one. To hire that lawyer, you might need greater resources than you expended in the lower court for the motion or trial. Appeals don't consume a lot of in-court time - most hearings only take about 1/2 a day - but they do take up a lot of preparation time in writing facta of argument and preparing the "appeal books" containing the exhibits and transcripts of trial evidence. Plus, you'll need to pay for those trial transcripts. Lastly, if you do get an appeal result ordering a new trial, you'll need to be able to fund that trial as well. 

Yes, justice should be more accessible and inexpensive. But believe it or not, it's partly because courts bend over backwards to protect litigant rights that justice becomes so difficult to pursue - meaning, courts will not cut off a party wanting to present lots of evidence, or extensively cross-examine the other side's evidence, or make very detailed legal argument. All that takes time. And legal time costs money.

I do think it's always a good idea to have a lawyer give you professional advice on your appeal prospects. Getting an appeal legal opinion will be much less expensive than hiring someone to actually do the appeal. You might be able to get that opinion from your trial lawyer, or you might want to go to a lawyer who concentrates on appeals. But either way, make sure you act quickly as appeal limitation periods are usually only 30 days after a trial or motion judgment, and could be a short of 7 or 14 days for some kinds of cases. 


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