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Experienced New England Attorneys

Appellants, Beware


“The company plans to appeal the verdict.”

Many news stories about jury verdicts end with this statement.  For many clients and lawyers, it’s a face-saving way to end an interview, promising to carry on with the fight, rather than conceding defeat.  Yet, the successful pursuit of an appeal is far more complicated than the statement implies.  Burdened with many procedural requirements, and with a low chance of success, an appellant [the losing party in the trial court] has an uphill battle ahead.  In the vast majority of cases, the appellate courts are empowered only to review legal rulings, and not to change a jury’s decision on the facts.  And a clear legal error usually results in reversal only if it is likely to have changed the outcome of the case.  All told, nearly 80% of appellate decisions affirm–agree with–what happened in the trial court.

But the road to an appellate decision is fraught with peril for the appellant, as demonstrated by a recent decision from the Massachusetts Appeals Court.  The process starts with the filing of a notice of appeal–usually within 30 days of the end of the case–which is required to identify specifically all of the parties involved and the judgment or order appealed from.  But then the real work starts.

The detailed Massachusetts Rules of Appellate Procedure lay out a series of steps the parties must follow in order to ensure that the appellate court has everything it needs to decide the case.  These include ordering (and paying for) the transcript, identifying the issues to be raised on appeal, and listing the documents to be included in the appendix.  All of these steps have time limits, and failure to follow the prescribed procedures can result in dismissal of the appeal.  And when it comes time to prepare the brief and appendix, there are many more technical requirements that must be followed.

And that’s exactly what happened to the appellant in Dry Dredge Systems, Inc. v. Jay Cashman, Inc., a 1:28 decision issued by the Appeals Court on January 3, 2014.  The appellant, having properly filed its Notice of Appeal, then apparently neglected to order the transcript or otherwise obtain an approved statement of the evidence for many months.  When no good explanation for the delay surfaced, the court dismissed the appeal.

What became of the Dry Dredge case is what often happens when a losing party, still stinging from a recent defeat, threatens an appeal.  Over the ensuing weeks, months, or years, the reality of the situation, and the expense and unlikely success of an appeal all begin to sink in, and the putative appellant loses the stomach for further battle.  And many of these threatened appeals simply die on the vine, long before they are included in the court statistics that show only a 20% success rate!

The moral of Dry Dredge and similar cases is that a party who truly intends to pursue an appeal to its completion needs to comply fully with the applicable rules.  The basic requirements are available here but do change, and so counsel should check to make sure that no amendments have occurred.

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