An unfavorable judgment may not be the final word in a lawsuit, as the appellate process allows businesses to redress errors in the trial court. The appellate process is complex and lengthy, but it can help you avoid costly litigation.
“If you receive an unfavorable final judgment, it is imperative to promptly consider your appellate options,” says Sidney Klingler, a partner with Secrest Wardle.
Smart Business spoke with Klingler about how to effectively use the appellate process.
How can a business owner determine whether to use the appellate process?
Whenever an unfavorable judgment or order is entered against your business, you should consider the option of appeal. Unless the judgment is so small that the cost of appeal could not be justified, consultation with an appellate attorney or one specializing in the issues involved in your particular case will be necessary to assess your appeal and determine the likelihood of success.
An appeal entails some cost, although generally much less than protracted litigation. Weighing the likelihood of prevailing on appeal against the cost of the appellate process, you may conclude that an appeal is not worthwhile and that it’s better to pay the judgment and avoid the continued accrual of interest.
Be aware, however, that an appeal may not be used for purpose of hindrance or delay, and must be based on a reasonable belief that there is a meritorious issue to be determined. A party may be assessed attorney fees and punitive damages for filing a ‘vexatious’ appeal.
What should business owners know about the appellate process as it relates to business litigation?
There are two general types of appeals in Michigan courts. When there is a final judgment, a party aggrieved by the decision has the right to appeal to a higher court. An appeal of right to the Michigan Court of Appeals involves a process that is likely to go on for a year or more. A claim of appeal, the initial filing that establishes jurisdiction in the court of appeals, must be filed in a timely manner; if not, your appeal of right is irrevocably lost.
Parties may also seek leave to appeal orders issued in a case prior to trial. This is known as an interlocutory appeal. An interlocutory appeal is discretionary for the Court of Appeals, that is, the court has discretion to decide whether it will take up the appeal. Any order issued prior to trial may be appealed by application to the Court of Appeals. When the Court of Appeals grants an application for leave to appeal, it then considers the interlocutory appeal in the same manner in which it would consider an appeal of right.
While a grant of one’s leave application is encouraging, it is by no means a guarantee of a favorable outcome. Many legal practitioners are unaware that the panel that ultimately considers an appeal after leave is granted will not be the same panel that decided to grant leave and may view the case differently than did the original panel.
Nevertheless, an interlocutory appeal can be an effective tool to avoid costly litigation.
