Can I have a do-over?
August 10, 2012
In golf, if you are playing with real friends and the bet isn’t too high, you often get a mulligan. For those of you who aren’t familiar with the term “mulligan,” it is the golfer’s equivalent of a do-over.
This usually happens on the first tee when a player addresses the ball, swings with all his might and watches the ball take flight out of bounds, or searches for the ball in flight only to realize, much to his dismay, that he has whiffed it, and it remains perched on the tee.
In the courtroom, a lawyer usually doesn’t get a mulligan. Once he steps on a landmine, he bears the injury and can do little to rehabilitate his case.
Unless he can do so on appeal.
The concept of an appeal is a strange one. An attorney tries his case to a jury and wins. That should be the end of it, right? Wrong. In the United States, beyond the trial court level lay the courts of appeal. The theory is that an error in the trial proceedings should be subject to review. A trial judge may not have followed the law and his failure may have allowed evidence to creep in that shouldn’t have or may have refused admissible evidence.
Maybe this sounds good in theory, but in practice it opens up all sorts of potential conflict for your story.
What if the judge who hears the case on appeal is in someone’s pocket?
What if the appeal is frivolous and brought only for purposes of delay? What if the losing party knows that the winning party doesn’t have the resources to pursue an appeal? That’s why a lot of cases get settled while they are on appeal.
What if the lawyer who tried the case knows the trial judge let a damning bit of evidence in that the jury should never have heard? Even with a judgment in his hand, he may not want to take the risk that the case will be overturned on appeal.
There is a tremendous amount of strategy involved in what to do about an appeal.
Most lawyers think about the court of appeal before they even file a case. If they have several places where they can bring the case, or the choice between bringing it in state or federal court, they run these scenarios through their minds. If I win at trial, can I hold the case on appeal? Which appeals court would most likely rule for me, which would rule against me?
So as you think about writing legal fiction, give some thought to do-overs. If the hero wins at trial, break up the celebration with the news that the other side has filed an appeal. If your hero loses in front of the jury when he should have won, have him appeal and have the appeals court grant a new trial.
You get the point. It ain’t over until the fat lady sings, and her gig is at the court of appeals.