If you read news coverage of any high profile verdict, chances are good the losing side “promises to appeal.” They say nobody likes a sore loser, but in contemporary culture, refusal to admit defeat is widely expected and admired. Even when the odds are against you. Like the odds of having a judgment overturned on appeal.
According to research done by United States Appellate Judge Ruggero Aldisert in 2005, the odds against getting a decision overturned on appeal are 9 to 1. They are a little worse for criminal defendants, and a smidge better for appellants in civil litigation. But generally speaking, the appellant (the party seeking the appeal) loses to the appellee (the winner at the trial level) 9 times out of 10.
Why such grim odds? I think there are two chief reasons. The first and biggest factor is the presumption in favor of the trial court’s findings of fact. At trial, the jury (or the judge in a “bench trial,” which is simply a trial without a jury) is charged with deciding disputed questions of fact. If one driver says the light was red and another says the light was green, it is up to the fact finder to determine who to believe. When the case is appealed, the appellate court (typically a panel of three judges) must defer to the fact findings from the trial court so long as there is some evidence to support the decision. So if there were actually 10 witnesses who said the light was red and only one who said it was green — and if the jury decides to believe the one witness who said the light was green — it is not up to the court of appeals to “weigh” the evidence and second guess the jury’s decision. Bottom line: if you lost at trial because you think the jury got the facts wrong, you will have a hard time convincing the appellate court to fix the mistake. Typically, you win an appeal because the judge misapplied or misunderstood the law, not because you disagree with findings of fact.
What’s the second factor? Institutional bias and pressure toward weeding out appeals. If efficiency means getting things done with the least amount of effort and energy, then the judicial system is more efficient if it discourages appeals. I am not saying judges deliberately decide against appellants just to streamline their dockets. I honestly don’t think that is true. I am saying it is human nature, if you are already leaning in favor of the appellee, to err on the side of upholding the decision of your fellow jurist and to be done with a weak case.
I have won cases on appeal, lost cases on appeal, and settled cases in the middle. Appellate litigation is alive and well, and it holds an important place in our legal system. But in most cases, if you want to come out on top, it’s best to get it right the first time.