How Much Does an Appeal Cost?
How Much Does an Appeal Cost?
The cost of an appeal depends on four major factors: the complexity of the issues, the number of issues, the length of litigation and trial proceedings, and the rate charged. While there is no such thing as an “average” appeal, a litigant should not expect to pay less than $15,000 unless the issues are simple and limited in number. For complex cases, fee amounts of $20,000 to $35,000 are not uncommon.
Aside from attorney’s fees, litigants are also responsible for the costs of an appeal. These costs are usually limited to filing fees, preparation of the record, and transcription services, but they quickly add up. Transcription is generally the most expensive and can cost as much as $2,000 per full day of hearings.
To get an estimate of the cost of your appeal, you should consult an appellate attorney. For a fee, and depending on the nature of the case, an appellate attorney may also be able to provide an analysis of your case, to help you determine whether there are appealable issues.
Why Do Appeals Cost So Much?
Like a trial, an appeal is expensive because of the large amount of work involved. Unlike at trial, however, most of this work involves research and writing. If you want to know what goes into the cost of an appeal, you need to know how appellate attorneys spend their time.
Preparing the Appeal
In most appeals, only a small amount of time is spent getting the case to the appellate court. But timing is critical—if this is not done correctly and within strict jurisdictional deadlines, you could lose your only chance to appeal your case. It is extremely important to contact an appellate attorney the instant you think you may need to appeal.
Preparing the appeal includes filing the notice of appeal, ordering the record from the trial court, and ordering the transcripts from the court reporting company. For lengthier or more complex cases, you should expect to spend more on fees and costs for preparing the appeal. As noted above, these costs can be substantial.
In some cases, determining when to appeal can get a bit complicated. In Florida, final orders are appealable, but determining whether an order is (1) actually a final order and (2) a final order “rendered” for purposes of appeal can often require some analysis. For example, an order granting summary judgment may or may not be a final order, depending not on what the order is called, but on what it does, and on what specific language it uses—for example, whether it allows for execution or not. Additionally, even a final order may not be ripe for review, because certain post-judgment motions “toll” or pause the time to file an appeal. But if the order is not final, or if the motion is not approved, the time is not tolled. Therefore, you should always consult an appellate attorney as soon as you think you might have an appealable order.
Appellate Motions Practice
While some appeals will include filing and responding to appellate motions, in general, there are fewer motions than at trial. In fact, appellate courts actively discourage motions.
Appellate motions are rarely, if ever, decided on hearings. Instead, the appellate court will convene a panel to rule on the motion, and the court will consider only the arguments presented in the motion, response, and attachments.
Typical appellate motions include motions to strike non-conforming filings or non-record citations, motions for appellate fees, motions to dismiss based on lack of jurisdiction, motions for rehearing, or motions to certify questions of great public importance to the supreme court.
The amount of motions practice in your appeal will greatly affect the cost of the appeal.
Appellate Briefs
The great majority of an appellate attorney’s time is spent researching and writing briefs. As you may know, the purpose of an appeal is to argue to a higher court that the lower court made an error. The appellate brief is where that argument is made.
Writing a brief is a complex and time-intensive process. First, your appellate attorney will examine in detail the entirety of the record and will read every transcript. At this stage, the appellate attorney is looking for possible errors.
The record on appeal includes most but not all of the pleadings, motions, briefs, evidence, and depositions filed during trial. Transcripts should be ordered for any hearing that resulted in an adverse outcome. These appellate filings—the record and the transcripts—are the only evidence an appellate court will consider. This first step can amount to days of work.
Second, once possible errors have been identified, your appellate attorney will research which of them make the strongest case for reversal. This is a complex process that requires determining (a) which of the possible errors were actual errors; (b) whether the actual errors were harmful—in other words, that they changed the outcome of the proceedings; (c) whether the errors were preserved—meaning they were brought to the trial court’s attention; (d) whether the law supports reversal; and (e) whether pursuing the error is a good choice strategically.
While researching your appeal, the appellate attorney may discover that some issues that looked like errors were not, while other rulings that looked fine at first were in fact erroneous and prejudicial. This second step can also take days of work.
Third, after an attorney has decided which errors to pursue, the hard part begins. At this point, an appellate attorney will find as much legal precedent in support of your arguments as possible, then write and organize the arguments into a persuasive brief. This brief is where your attorney makes your case to the appellate court. It shows in detail how the trial court’s errors violated established law and explains why reversal is required.
A well-crafted appellate brief is compelling, logically organized, and as concise and clear as possible. It should frame the issues, facts, and law in the light most favorable to your case. It should anticipate possible defenses and respectfully confront them. Finally, it should contain an easy-to-follow train of logic leading to the conclusion that reversal is required.
Depending on the complexity of the case, this third step can take days or weeks of work. The number of issues, and their complexity, will greatly impact the overall cost of the appeal. If the trial court made a single, easily identifiable, reversible error, the cost of an appeal may not be great. But if the trial court made numerous errors, any one of which may or may not warrant reversal depending on the strength of your argument, or if the issues are not clear, then the appeal will cost more.
Oral Argument
When requested and granted, the final stage of pre-opinion appellate advocacy is oral argument before a panel of judges. Each side typically receives around twenty minutes to make its case. This is not a traditional hearing—there is no testimony, no presentation of evidence.
While oral argument itself takes only a small amount of time, your appellate attorney will spend hours in preparation—studying the arguments and case law in support of your case and practicing their presentation. An appellate attorney should be prepared to answer a wide range of questions from the panel of judges on any aspect of the case.
Again, the complexity of the case will determine the amount of time necessary, and thus the cost.
POST-OPINION MOTIONS PRACTICE
Now that the appeal has been decided, the losing party may not be satisfied with the outcome. If the appellate court has itself made an error, the losing party will considering filing a motion for rehearing, bringing any error to the court’s attention. Alternatively, or in conjunction, the losing party may file a motion requesting a written opinion, a motion requesting certification of a conflict, or a motion certifying a question of great public importance to the Florida Supreme Court.
Your appellate attorney can advise you whether paying for this process is worth the expense. If the appellate court made a clear error, or if you are seriously contemplating appealing to the Florida Supreme Court, the cost may be worth it.
What Goes into an Estimate of Appellate Costs?
When estimating the cost of your appeal, an appellate attorney will make an educated guess as to how much time will be spent on each of these processes—preparation, motions, research and writing, and oral argument.
In order to arrive at an informed estimate, an appellate attorney will often need some information about the trial-level litigation. For example: how long the case was in court, the number of parties involved, whether motions for summary judgment or dismissal were filed, and how long the trial lasted.
Generally, the appellate attorney will want to review the docket and the rulings to be appealed. They may ask what specific errors you or your trial attorney believe occurred.
How Is an Appeal Billed?
After providing you with an estimate, appellate attorneys will typically offer you one or two billing options. Under an hourly billing method, an appellate attorney will keep track of time spent working on your case, then bill you for that time. Generally, an attorney will ask for a large advanced fee deposit placed in trust as a condition of representation.
An attorney may also offer a flat fee, which is usually offered at a slight discount. The fee can be paid all at once, or in monthly installments with a down payment.
In some cases, an appellate attorney will take a case on contingency, meaning based a percentage of any recovery. Generally this only occurs when the possibility of reversal, then recovery, in combination with the amount of damages at stake, justifies the risk of the appellate attorney receiving nothing after working 50-100 hours on your case.
What Types of Payments Do Appellate Attorneys Take?
Like most attorneys, appellate attorneys can process lots of different payment types. Cash and checks are less common these days, while credit and debit card payments have become standard. Many appellate law firms offer financing through third-party lenders—much like a car loan.
How Can I Afford My Appeal?
Like all forms of litigation, appeals are expensive. An appeal should be treated like any other major purchase or investment. You should consider your options carefully before deciding how, and whether, you want to proceed. With enough information, an appellate attorney may be able to advise you whether pursuing your appeal is worth the cost.
Depending on the billing method agreed to, people have a variety of options to choose from to help pay for their appeal. They can pay for appeals using installment plans, fundraising, credits cards, or even personal loans, which tend to have lower interest rates than credit cards.
Where Do I Go from Here?
The appeals process can be daunting. You have only one opportunity to challenge a court’s decision, and if you don’t file within the deadline, that opportunity is lost. On top of that, finding the right attorney to represent you and to argue your case to the appellate court is crucial to your chances of success.
If you have any questions about the appeals process, or if you would like to know more about the appellate services we offer, please call us at (689) 259-5010. You can also email us at contact@alexanderappeals.com or fill out our contact form.