When the Appeal Loses Its Appeal

Litigants dissatisfied with the outcome of their trial generally have the right to an appeal.  Deciding whether to exercise that right can be fraught with strategic concerns.

If your business finds itself compelled to resolve a dispute at trial, the trial court’s judgment — represented in celluloid by the judge’s gavel banging down — does not necessarily end matters. However, how you exercise the right of appeal can impact the resolution of your lawsuit and may even have long-term consequences for your business beyond the immediate dispute.

Generally, a party wishing to appeal a final judgment must file a simple notice of appeal in the same court that rendered the judgment. The procedural rules governing the timing and sequence of post-trial motions and appeals are precise and unforgiving, such that an appellate court is without jurisdiction to hear an appeal that has not been filed on time. If after weighing all the appropriate factors (some of which are addressed in this article) you are unsure whether to appeal, or if you have been unable to analyze the pros and cons of an appeal in your case, the safe course is to file a timely notice thereby preserving your rights to the appeal. You can ordinarily dismiss an appeal without incurring too many unwanted costs should you later decide not to proceed.

In analyzing whether to challenge the trial court’s decision in the first place, you must first assess the nature of the dispute, the finality of the judgment and also determine the chances that the appellate process will get you the result you had initially hoped to achieve at trial. Ordinarily, only a final judgment may be appealed; a judgment is considered final if it resolves all claims against all parties. The final judgment rule may appear simplistic on its face; however, this critical gateway to appellate jurisdiction generates much controversy, particularly in multi-party disputes and in cases with numerous claims and issues. Sometimes the parties to an appeal will not learn that the appeal has been taken prematurely (that is, prior to the entry of a final judgment) until after they have fully briefed the issues, argued their case before a panel of appellate judges, and received an opinion.

As with the original decision to litigate, you will need to undertake a cost-benefit analysis before deciding whether to proceed with an appeal. Unlike a trial or other evidentiary hearing where costs are often unpredictable, the legal costs of an appeal are more static, making it easier to budget, though an appeal nevertheless can be expensive. The appellant (i.e., the party noting the appeal) is generally financially responsible for the costs of preparing the transcript of the trial proceedings, if any. The appellant is also primarily responsible for preparing the record extract, which is the bound volume(s) filed with the appellate brief which contains exhibits introduced in the proceedings before the trial court, transcripts of testimony, copies of the docket entries and other pertinent information from the trial court record.  

All these costs, plus the associated attorney’s fees, must be considered. In some cases it may be easier to pay the judgment and extinguish the obligation. But appealing instead may provide leverage for a party to settle a claim for less than the judgment amount or on terms more favorable than a lump sum payment. You must also consider that most money judgments accrue interest at an annual rate of 10%. Judgments in Maryland expire after twelve (12) years but may be renewed prior to expiration, and there is no limit to the number of times they can be renewed.  Further, the prevailing party at trial may enforce its judgment while the appeal is pending, unless the judgment debtor files a bond or other security to stay enforcement of the judgment, and even then the court has discretion to deny the stay of enforcement.  These are added costs and considerations you must factor into the calculus of taking an appeal.

The type of case and decision rendered at the trial court level may also influence the viability of your appeal. Some cases involve complex facts or require the judge or jury to assess the credibility of witnesses in order to make “findings of fact” that determine the final verdict.  Other cases involve few or no disputes of fact and instead revolve around questions of law that the judge must resolve. Some cases involve both questions of fact and law, whereas yet other cases involve mixed questions of fact and law. The issues presented and decisions made will determine the “standard of review” on appeal. Generally, an appellate court will not overturn a judge’s or jury’s factual findings unless they are “clearly erroneous” based on a review of the record. This is a high threshold to overcome because appellate courts give deference to the trial court or jury’s ability to assess the demeanor and credibility of witnesses who testify before them in the courtroom.

Legal questions, on the other hand, are generally reviewed “de novo,” meaning that no deference is given to the trial judge because appellate judges can apply the law to a set of facts just the same as the trial judge can. Other decisions and rulings by a trial court judge may only be overturned if the judge has abused his or her discretion, which is another high burden to overcome. Trial court judges are given wide discretion in how they conduct the affairs in their courtroom, including the allowance of testimony and evidence, as well as how proceedings are conducted generally (e.g., whether to permit media to attend, whether to sequester witnesses, how long juries may take breaks, etc.). 

In some cases, good reasons may exist not to appeal an adverse decision. For example, if your case involves an issue for which there is no legal precedent (i.e., no statute, regulation or legal opinion exists that directly addresses the issue), an appeal poses the risk that you will create legal precedent that can work against your business or industry. Legal precedent is created when an appellate opinion is published and thus forms part of the law of the jurisdiction in which the appellate court sits. Such precedent can come at high risk and cost to the parties to the appeal.

For more information please contact Jason C. Brino at 410-583-2400 or


210 W. Pennsylvania Avenue, Suite 400
Towson, Maryland 21204