The Pain Of Losing A Case On Appeal

Losing a case on appeal is painful, especially when you represent yourself. The judge is an idiot, or biased, usually both. But you assume you’re dealing with professionals on a higher court. When they come back with a decision affirming the lower court, it stings, it bites, it stinks… it happens. Getting a lower court’s ruling reversed is not the norm. We’d have a pretty incompetent judiciary if it were. Of course judges make mistakes, and they’re not always corrected by higher courts. But if you’re crying over an appellate court’s decision, just know you’re neither the first nor the only one to experience the pain of losing a case on appeal.

I’m suffering that pain right now. In our case, the judge had reserved time on her calendar to hear a specific issue, but the opposing lawyer noticed a hearing on that date for something else entirely. We moved to strike the hearing, which the court granted, filed and mailed. But then she changed her mind and issued a contradicting order, with no explanation. Strangely enough, what we received from the court was an unsigned copy of this second order that was backdated several months! The hearing was held in our absence, and the judge ruled against us on a matter that wasn’t even supposed to be heard. We filed an interlocutory appeal (an appeal of a non-final ruling), detailing the legal errors and arguing that the decision harmed the rest of our case in a way that couldn’t be fixed with a regular appeal after the case was over. Five months later, the appellate court affirmed the ruling without even bothering to write an opinion. Ouch!

Luckily for us, it’s not the first time. As those Atlanta schoolteachers head to prison on federal racketeering charges, I’m reminded of a civil RICO case we lost there nearly 10 years ago. A property management company hired a lawyer to try to evict us from our rental housing, but we were able to show they’d committed perjury on the affidavit initiating the case. Their case was dismissed, but not before we discovered they’d committed 400 similar perjuries in the 20 years prior, all predicate acts for RICO. We sued the company and their co-conspirator lawyer, but the judge dismissed our case when they argued we weren’t really suing for RICO violations, but rather for abusive litigation, a claim for which we hadn’t filed a required notice. Apparently it’s okay to commit perjury, as long as it’s in court? We appealed, and we lost. We’d failed to hire a court reporter (who knew?), so we couldn’t even show the appellate court what had been argued at the hearing. We relied on the decision itself, and we thought professional judges would clearly see the injustice and reverse it. Hahaha.

We’re now long past the days when we believed courts delivered justice. We’ve learned that courts deliver process, a rule-based opportunity for both sides to present a case. As for how decisions are made? Well, that hasn’t changed much in the two thousand years since the ancient Greeks consulted their oracles:

Anyway, appellate courts typically give you a couple weeks to ask for reconsideration. In our latest case, we’d just like a written opinion. To defend the judge’s ruling, the opposing lawyer actually submitted documents that were not part of the trial court’s record, a serious violation of appellate court rules. We moved to strike those materials and the court agreed, but that left really nothing of the other side’s argument for the court to consider. We’d like to know how they could possibly rule against us after ordering the other side to respond to our appeal.

But be careful in asking for reconsideration. You need to show the appellate court something it overlooked — a conflicting decision, a piece of evidence it missed, a rule that was violated, something. You cannot use the process to reargue the case. You could be ordered to pay sanctions if you’re not mindful of the requirements, as in this case (PDF), where the first two paragraphs of the reconsideration motion stated:

1. Oh.
2. Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.

And it went downhill from there. That lawyer and his client paid for their outrage. And while I wouldn’t file such a thing myself, I understand. Lawyers who specialize in appellate practice generally recommend taking a few days off before even communicating the loss to the client, much less deciding what to do next. There’s similar guidance for the pro se litigant: Let the decision sink in before considering the next move. There are other options, including higher courts. And there’s often the potential for settlement, even after you lose. It’s not the end of the world.