Below Matthew P. Barach, Esq., author of ‘The Family Law Guide to Appellate Practice’, explains that as a result, family law appeals provide certain dilemmas not existing in other areas of the practice of law.
Family law attorneys are confronted with a number of practical challenges in choosing whether to file an appeal. The decision of whether to appeal or not to appeal involves evaluating complex factors, including alternative remedies, the likelihood of success, the legal costs involved, and a determination of what “success” or “failure” on an appeal may mean for your client. You need a complete understanding of not only the mechanics and process of an appeal, but also how to evaluate when it is sensible to bring an “urgent plea” forward.
The reality is that an appeal is not an easy process. Odds are high against its success, and most family law lawyers do not handle or even bother to touch appellate work. There are also ethical obligations as the matter turns from judgment to the possibility of an appeal, starting with the duty to explain to your already agitated client the very low odds of a successful appeal – never an easy conversation to have.
Your client needs to understand that an appeal is not a retrial of the facts or issues, but rather an opportunity to raise mistakes of fact or errors of law by the judge to a reviewing court. Another potentially complicated discussion.
The impact upon the children is also an important consideration. The fact that the judgment may not be “stayed” during the pendency of the appeal is another. The point of a divorce is “moving on,” and an appeal can further elongate emotions and increase the acrimony rather than de-escalate the matter and provide a client with closure.
Appellate courts afford broad discretion to the trial judge when reviewing family law judgments. Therefore, a careful and thorough examination of the facts is necessary to determine whether to appeal or not to appeal. Often, there are as many good reasons not to challenge a judgment as reasons to pursue a reversal or remand of a trial judgment. Fortunately, there are a few alternatives to seeking an appeal that in some circumstances can be a better choice.
Ask the following:
- Is this a case that should be won on appeal?
- Do the facts of your case reflect an injustice in the outcome?
- Does the result require a remand or even a reversal?
- Has the trial judge made a critical mistake in her application of the law to the facts?
- Does your gut instinct tell you something is wrong?
Both the facts and the equities need to exhibit that something went very wrong in the trial court. Ideally, by the time an appellate judge reads your statement of facts, even giving the appellee any deference, the reviewing judge must feel your client did not receive the correct result.
You want your statement of the facts to highlight the injustice. It is much easier if the facts of your case weigh in favor of the result you are looking to achieve for your client. If your client does not have a favorable equitable position, then you must review the record for issues in his or her favor and underscore those principles within your brief.
But keep in mind what success is for your client. For example, how does a potential change in the judgment affect the children involved? How does an appeal impact the finances of your client?
The decision to appeal a family law decision is both difficult and often delicate. You are dealing with people’s most intimate concerns, emotions, minds, and hearts. Always strive to take good care of them.
