Refusing to Accept Defeat as the Result on Appeal

Howard J. Bashman

Related: Bashman Archive

Sooner or later, every case that has been appealed from a trial court to an intermediate appellate court results in a decision. Ordinarily, that decision will disappoint at least one, if not more, of the parties in the case. The party that has lost on appeal, or has failed to achieve all of its goals on appeal, must then consider what remedies remain available to possibly rectify the unsatisfactory aspects of the current outcome.

In most court systems, the only appeal as of right that is available is the appeal from the trial court to the intermediate appellate court. That typically produces a ruling from a three-judge panel of the intermediate appellate court. After the intermediate appellate court's three-judge panel issues an unfavorable ruling, ordinarily the only remaining appellate recourse is discretionary in nature. In most court systems, the losing party is able to request reconsideration from the panel that just decided the appeal unfavorably, and the losing party can also simultaneously request rehearing before all active judges on the intermediate appellate court. This latter type of rehearing is often referred to as rehearing en banc.

After such a request for reconsideration from the intermediate appellate court is turned down, or instead of seeking reconsideration from the court that issued the unfavorable ruling, the losing party can ask the highest court in the applicable jurisdiction to hear and decide the case. In most jurisdictions, and in most cases, the highest court will have discretion whether to hear the case, and thus review is far from assured, because typically the highest court of a jurisdiction, when exercising discretionary appellate review, accepts only a small percentage of cases.

The standard for seeking reconsideration before the same three-judge panel that issued the original unfavorable ruling is typically stated in a misleadingly permissive manner: Did the panel overlook any matters of law or fact that caused the panel to reach an incorrect ruling? By contrast, the standard for obtaining rehearing before the full intermediate appellate court is usually phrased in a way that makes it much more difficult to satisfy. Either the intermediate appellate court's decision must conflict with the binding precedent of a higher court, or the intermediate appellate court's decision must conflict with an earlier ruling of the same intermediate appellate court. In many jurisdictions, it is more difficult to obtain rehearing before the full intermediate appellate court than it is to obtain discretionary review in the jurisdiction's highest appellate court.

A party's odds of winning on appeal initially before a three-judge panel are much higher than a party's odds of obtaining further review of a three-judge appellate panel's unfavorable ruling. Unfortunately, those odds do little to stem the steady tide of unmeritorious requests for rehearing and reconsideration before intermediate appellate courts or the steady stream of unmeritorious requests for discretionary review before the highest court of a given jurisdiction.

I believe that most appellate judges would agree that litigants and their lawyers who are on the losing end of intermediate appellate court rulings are filing far too many requests for further review in cases that do not satisfy the stringent criteria for such review. Unfortunately, efforts to reduce the number of unmeritorious appellate cases in which the losing party is seeking additional discretionary review have not succeeded.

Perhaps it is too easy to imagine that a valid basis for discretionary review exists even where a realistic appraisal would indicate the contrary. And court admonitions that lawyers owe not only an obligation to their clients but also an obligation to the court in deciding whether to pursue additional discretionary review tend to present a conflict that most lawyers will resolve in favor of pursuing their clients' interests.

During my career as an appellate lawyer, I have sought to convince clients not to pursue further discretionary review of an appellate court ruling where, objectively, the criteria for such review do not appear to be satisfied. Conversely, I have been concerned for clients who have valid grounds to seek further appellate review but whose meritorious request for that review might be lost in a sea of meritless requests filed in other cases.

I wish I had the solution to the excessive pursuit of post-appellate decision discretionary review in the appellate system. But if that problem cannot be solved, then the need to ensure that the original three-judge panel reaches the correct outcome in the first instance must be recognized as more critical than ever. The only way to ensure that outcome is to present the three-judge panel hearing the appeal on the merits in the first instance with the highest-quality written briefs and oral arguments.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.