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To Appeal or Not to Appeal

By: Markus Risinger

Advising a client after a trial ruling sometimes feels like trying to close a barn door after the horse has bolted. Clients frequently come to me disappointed with a court ruling and wanting to know how they can get a higher court to revisit their case. My job often entails reviewing the case history and record to help determine if there is a legal avenue available.

When talking about the court system it is inevitable to come across the term “appeal.” What exactly is an appeal, how long can it take, and what can happen after an appeal is taken? The whole appeal process can be confusing. 

To begin, an appeal occurs when a party to a lawsuit believes that the trial court made the wrong decision in their case and in turn ask the appellate court to review the legal accuracy of the judgment. An appeal occurs after the trial court has made its decision and the appellate court has the power to reverse the decision of the lower court if there is an error. Simple, right? 

However, appeals are not as straightforward as they may appear at first blush. It is actually a complex and intricate process. Appeals often take a year or more and can strain resources. An appeal requires a lot of research to acquire intimate knowledge of the facts of the case and the applicable law. Appeals also sometimes result in oral arguments before a panel of appellate judges to work out the nuances of the decision.  After all, decisions from the Arizona appellate courts can create precedent that all other courts must follow, and the appellate courts are careful to ensure that their decisions are accurate and wise.  

With all of this in mind, it might be difficult to dive straight into an appeal, even if you are convinced that the trial court committed an error. Committing to another year or more of litigation and the associated expenses may be too intimidating based only on a “hunch” that the trial court got it wrong.  Some attorneys offer a preliminary option in the form of a comprehensive file review.  The file review allows the attorney to look through the judgment, briefings, and other documents and determine whether there is a readily appealable issue.  

By committing to a few hours of review and research before retaining counsel for an appeal, you may save tens of thousands of dollars if the issue in your case can be resolved through an easier method (such as waiting to modify a custody order instead of challenging it via direct appeal).  The file review can sometimes be undertaken for a flat fee and, if the client ultimately decides to appeal the trial court’s judgment, the research needed for opening briefs has already begun.  Conversely, if an appeal is not the right course of action, then the client learns that in the beginning instead of committing resources and waiting a year only to learn that the court of appeals will simply affirm the trial court’s decision.  

Having your filed reviewed before committing to the full appeal process can make the whole experience less stressful. Even in matters with appointed appellate counsel—such as dependencies or severance of parental rights cases—having an appellate lawyer review the case can provide alternative insights and will likely result in a better overall product, giving the client the best chance possible to succeed on appeal.  

Markus Risinger joined Woodnick Law as a law clerk in 2012. Markus graduated cum laude from the Sandra Day O’Connor College of Law at Arizona State University. Markus has handled appellate matters throughout Arizona and has had the privilege to argue in front of the Arizona Supreme Court. 

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