FIVE THINGS TO NEVER DO IF YOU WANT TO SUCCESSFULLY APPEAL A DECISION THAT SUCKS

There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.

We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!

Some will just swallow the defeat and move on. But others will want to continue the fight.

Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route. 

A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won. 

In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live. 

1. BE LATE TO THE PARTY. It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal. 

2. GET LOST FINDING THE PARTY. There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!

3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with. 

4. ASSUME YOU'VE GOT AN EVEN SHOT. Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it. 

5. ONLY MAKE ONE ARGUMENT. You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success. 

To read more, see my appeals law blog. 

TOP FIVE TIPS FOR SUCCESSFUL APPEALS OF ADVERSE TRIAL JUDGMENTS

1. BE ON TIME WITH FILING THE APPEAL

It might strike you as strange that it's more important to be on time with an appeal, than to have great grounds of appeal, but really that's how life works in general. The world's best employee who's always three hours late for work isn't going to last long in any job. 

Most appeal limitation periods are a maximum of 30 days from the date of judgment. Some are as short as 10 or 15 days. Most count all calendar days (including holidays and weekends), though some only count Monday to Friday working days. It all depends on the wording of the court rules that govern your case.

Some appeal rules require that you serve and file the appeal within the time limit, meaning serve the notice of appeal on the opposing party, and actually file that notice together with proof of service in the correct appeal court. Others require that you only file within the time limit, with service to come slightly later. 

If you are thinking: “oh, missing that limit by a few days can't be such a big deal, can it?” think again. You'll at least need to bring a motion before the appeal court to extend time for filing, and offer evidence of a very good reason why you were late. Quite frequently, you'll just be told you're too late.

Miss the deadline to file the appeal by a few years, and no one is likely going to care about how good your appeal grounds happen to be or even your reason for being late unless you're still locked up in jail. The principle of finality means that courts don't like it when cases where final decisions appear to have been taken get resurrected over and over again. 

2. APPEAL TO THE CORRECT COURT

People, lawyers included, frequently appeal to the wrong court. Why this happens is because appellate routes can get complicated. 

Criminal appeal routes aren't usually too complicated, but you may still need to choose between your provincial Superior Court and the Court of Appeal if you were convicted in provincial court. In some provinces, you have a choice in where to bring your appeal, however your grounds of appeal might be more restricted if you go directly to the Court of Appeal. The Supreme Court of Canada may also eventually be an option.

Civil appeal routes are a lot more complicated than criminal routes. First you need to determine if your matter is governed by federal or provincial law in assessing your civil appeal options. 

For appealing government decisions, you might need to go to one of a variety of specialized administrative tribunals. 

Federal civil matters might also need to go to the Tax Court, the Federal Court, or the Federal Court of Appeal. Don't get to thinking that you would logically always go to the Federal Court first, and then to the Federal Court of Appeal – sometimes you jump over the Federal Court, depending on which body you are appealing from. 

In Ontario for provincial administrative and small claims matters, one option could be going to the Divisional Court, but if you are appealing a small claims judgment you would go to a single judge panel of the Divisional Court who would hear your case in the location where your other Superior Court judges sit, whereas if you need a three judge panel of the Divisional Court such as when the appeal is from the Landlord and Tenant Board, then those hearings only happen in limited regional centres which is where you need to file the notice of appeal. As a further example of restricted geography for appeals, in bankruptcy matters in Ontario there are only four locations in the province that hold hearings. Thus you need to figure out not only the correct names of the court, but also where it sits so that you file your appeal documents in the correct registry office.

If you're wondering: “why so many different appeal courts?” the answer is similar to the age old question: “why so many different government departments with so many offices?” Courts are split up along both geography and subject matter expertise, just like government offices. 

3. FIND A TRUE APPEALABLE ERROR OF LAW, RATHER REHASHING THE TRIAL JUDGE'S FINDINGS OF FACT 

You can't just appeal because you lost at trial. You need a good reason for why an appeal court should overturn the trial judge's findings. And the fact that you don't like those findings isn't a good enough reason. 

Generally, you need to put your finger on an error of law, or mixed fact and law, that happened during the trial and that may have affected the end result. If you can show multiple errors, all the better. 

Usually no new evidence is heard on an appeal. An appeal isn't just a second kick at the trial can. Rather, an appeal is a fairly academic review of the trial process, to ensure that you received a fair trial, and that the trial judge didn't make any significant errors of law during the trial that may have affected the end trial result. 

4. GET THE SYMPATHY OF THE COURT BY EXPLAINING THE INJUSTICE

As much as lawyers love technical legal arguments, I've found they tend not to succeed on appeal by themselves. Rather, during an appeal you also have to get the sympathy of the appeal court by explaining the injustice you suffered at trial, and how the appeal court can advance the cause of justice by deciding the appeal in your favour. Try to make the appeal about more than just you, and generalize it to be about similar injustices that might also befall others. 

5. ORDER THE TRIAL TRANSCRIPTS ASAP

Appeals are almost always based on trial transcripts, regardless of whether those transcripts are of a 20 minute highway traffic speeding offence trial, or a 20 days child custody family law trial. You need to be able to afford to pay for the transcripts and order them in a timely way in order to perfect your appeal toward getting a hearing date. 

Count on at least $500 per day of trial for transcript costs. But a 20 minute hearing will be very inexpensive - the $500 isn't some kind of minimum charge. You usually don't have to order transcripts prior to filing your notice of appeal, but you should do so soon thereafter, and usually need to provide proof to the appeal court that you have ordered and paid for the transcripts. Most of the time advance payment will be necessary. And make sure you order the required number of copies according to the appeal rules - you can't just photocopy an official transcript for court use. 

You can successfully conduct an appeal yourself, but an experienced appeals lawyer can greatly increase your chances of success, and save you lots of hassle. Usually appeal fees are quoted on a flat block fee basis, rather than hourly, so at least you'll have some cost certainly over whether hiring a lawyer is both worth it and something you can afford. In determining your ability to conduct your own appeal, you should carefully consider the level of court you will be appealing from: the lower the level of court, the more likely a do-it-yourself appeal might work. 

Yes Virginia, You Can Appeal an Appeal: How to Get More than One Kick at the Judicial Appellate Can

Interior of Supreme Court of Canada.
Credit: Wikipedia.

There are some limited types of judicial decisions that can't be appealed. But for most cases, appeals are available as a fundamental injustice check value in a judicial system staffed by imperfect humans, doing the best they can, but inevitably prone to factual and legal errors. 

Regardless of the level of court you start at with your first appeal in Canada, there will almost always be a chance of at least one more kick at the appellate can to a higher appellate court. If you're lucky (or unlucky, depending on your perspective) there will be two or even three more appeal levels.

More than a few people believe what they perceive to be endless appeals to be a fundamental flaw of the justice system. Some even think any appeal is a ridiculous abuse of process.

As a lawyer doing appeals for two decades, I can assure you that the appeal process is finite. And arguably much more efficient than the trial process. 

Instead of wasting time with adjournment after adjournment in trial court, and waiting perhaps years to get trial court time, appeal rules set fixed dates by which each party must file documents, and then set a couple of hours in court for the argument of the appeal. Two or three levels of appeals can pass more quickly than the time it takes to conclude one complex trial. 

So the "should I appeal?" question you asked after a less than optimal trial result can likewise be asked after an unsuccessful appeal. Likely the importance of the result to you, the justice of the case, the availability of grounds of appeal, and your resources to support an appeal will drive your decision to appeal further, just as they drove your original decision to appeal.

Just as trial judges can make errors of law, so too can appeal judges. Sometimes, you might win at trial, lose on appeal (because the other side appeals your win), and then win on further appeal.

Never assume that there's no way to further appeal an adverse judgment. An appeals lawyer is best placed to advise you on whether a further appeal might be brought, and on your chances of success.

Also don't assume that the higher your appeal goes, the lesser your chances of success. I've seem some quite shocking reversals even in the Supreme Court of Canada, where a party has lost at trial, and lost at the initial appeal, but then won at the Supreme Court of Canada.

The success trick for any appeal beyond the first initial appeal level is to convince the higher appeals court to hear your appeal in the first place, as the court's "leave" to appeal might be required. Supreme Court of Canada cases almost always require leave, and leave is only granted to about ten percent of those who apply. So you will really need to sell the higher appeal court on the justice (or injustice) or your case, as well on the egregious errors of law in the court below. Plus, for the Supreme Court of Canada you'll usually have to demonstrate an issue of national importance.

4 Reasons Appeals are from Venus and Trials are from Mars

Credit: D. Gordon E. Robertson

I'm often asked: are appeals really any different from trials? This is by no means a naive question. Wrapped up in it is the important concept of whether an appeal is really just a second kick at the can for the loser at trial, or a way for the loser to stick it to the winner by dragging out the inevitable, and what are the chances for an appeal court panel interfering with a trial judge's judgment?

1. Appeals are mostly about paper, and trials are mostly about talking. True, some civil trials and even criminal fraud trials can involve a lot of paper, but fundamentally Canada's trial courts rely on viva voce live witness courtroom testimony before a judge. Through those live witnesses, one can introduce paper exhibits, but the paper doesn't usually have a life of its own. At appeals, usually the only ones doing the talking are the lawyers (and maybe the judges, if they're in a questioning mood).

By comparison, appeals are all about paper: paper transcripts of the trial testimony, paper copies of the exhibits, paper written argument, paper casebooks of authorities. I say paper, because almost no Canadian appellate court has yet moved to fully electronic submissions as has happened in the U.S. I dream of the day it happens, but as explained to me by one Ontario Court of Appeal justice in response to my clearly oh so naive question on when the court would be moving to ban paper: "I don't even have a computer on my desk, and I write every judgment by hand with THIS fountain pen.

2. Appeals are mostly about the law, and trials are mostly about the facts. Yes, facts count in appeals, and law counts in trials, but it is in appellate courts that most enduring law gets created through the extensive legal argument played out there, while it is the trial courts who are best placed to establish the facts from witnesses they see and exhibits they touch. Thus, when you lose a trial, you're going to need legal errors to appeal, not just that the trial judge didn't understand the facts (though sufficiently serious misapprehension of facts will become an error of law).

3. With appeals you usually get three judges (though occasionally one, five, seven or nine), whereas at trial you'll mostly have only one judge. Is more really more? I tend to think so. With three judges, you only have to convince one of the rightness of your position, and hope that one will him or herself convince one of the other two to see your way of thinking. The third one may be hopelessly set against you from the start, and they'll be nothing you can do to change that - but at least you don't have that one negative judge in single judge trial setting.

4. Your best chance of success is usually at trial, though appeals are by no means a waste of time and resources. For instance, Ontario Court of Appeal stats suggest that as an appellant you've got about a 1 in 3 chance of success on a criminal appeal, and around a 1 in 4 chance on a civil appeal. These really aren't bad odds, but of course you need to weigh them against the cost of the appeal, the importance of the issues at play, and the value in finality - meaning have legal proceedings over, even if they didn't turn out as well as you expected.

Welcome to the New Appellate Practice Blog

Welcome to the new Appellate Practice blog. I'll still be posting articles in my other blogs, the Barrister Brief for more general legal articles (continuing the writing from the Public Law Advocacy blog that I decided needed a bit of a makeover), in Reasonable and Probable Grounds for pieces related to the investigation and prosecution of drug offences, and on Professional Misconduct Defence for writing of interest to those facing professional regulatory proceedings. But in Appellate Practice you'll find writing devoted to appeals.

I won't talk much here about specific appeal decisions, because there are already a lot of others out there who do a good job with that, and you can read the decisions yourself on canlii.org. Rather, the blog's devoted to the how, when, why, who, where, what and how much of appeal practice - be you a client contemplating hiring a lawyer for an appeal, someone planning to give an appeal a go by yourself, or others in the legal profession who want to know more about appeals.