Whether you're the plaintiff or the defendant in a personal injury case, you need to be aware of the review mechanism known in the U.S. judicial system as the appeal. This recourse helps ensure that justice is served by making it possible to amend a previous judgement or award. But appeals can serve as a double-edged sword, no matter which end of the weapon you're facing. Here are three things you need to know about them before you go to trial.
1. You Can Appeal Damage Awards As Well as Verdicts
Personal injury cases typically involve not only a verdict but also the awarding of damages to a victorious plaintiff. Compensatory damages can be based on either monetary or non-monetary loss. Monetary damages such as loss of property, past and future lost wages due to disability, medical expenses and funeral expenses are all fairly cut and dry, based on either actual dollar figures or reliable projections. But non-monetary damages can be harder to establish. This category includes financial awards based on such intangibles as pain and suffering and "loss of consortium" (negative impact on spousal and other family relationships), and the damage amounts can therefore be both hard to establish and hard to obtain. Awards for punitive damages -- those designed to send a message and deter others from committing similar errors -- can also be unpredictable and are very much at the judge's discretion.
The good news is that you can appeal the damage award in your case if you can't (or don't want to) dispute the verdict itself. For instance, if you as the defendant feel that the judge went overboard in awarding damages or added damages at his own discretion (an action called a "bench award"), you may have good reason to ask an appellate court to review and possibly modify the award. If you're a plaintiff who got a raw deal because critical evidence wasn't admitted that could have secured a larger award, this too could be grounds for appeal.
2. Threat of Appeal Can Encourage Settlement
It's not uncommon for one side in a personal injury case to threaten an appeal during the course of the trial in order to browbeat the other side into accepting a settlement. If you're the plaintiff in a personal injury case, for instance, you and your attorney may receive a settlement offer from the defendant's lawyers during a break in the action -- along with the threat that they'll appeal the case if you win. They're betting that you'd rather walk away with some money now than risk receiving no award at all from the court.
Are the other guys right? It depends on how well your case is going. The mere fact that they're offering a settlement may indicate that they're nervous about their own prospects. On the other hand, if you're the defendant, offering a settlement in mid-trial could help you cut your losses when things seem to be favoring the plaintiff. Either way, you must rely on your personal injury attorney's skill, insight and years of professional experience to help you make the right call.
3. An Appeal Is Not a New Trial
One thing you absolutely must understand before you appeal is that you're not getting a "do-over" of your personal injury trial -- you're merely getting a judicial review of that trial. For better or worse, the record of your trial, from witness testimony and entered evidence to objections from each personal injury attorney, is the sum total of what the appellate court will evaluate. This record is entered as a document called an appellate brief.
Since you can't introduce new information at this stage, your chances of a successful appeal depend largely on how strong your case was in court. Your personal injury attorney will stand before a panel of judges instead of a single judge, but the questions he answers are mostly just clarifications of what's already on the record. Because the appellate brief is such a strong indicator of how your appeal will turn out, your personal injury attorney may opt out of representing you further if you insist on appealing a relatively weak case.
Discuss the pros and cons of appeals with your personal injury attorney before your case ever finds its way into a courtroom. The more you understand about this aspect of the legal process, the more intelligently you'll be able to make it work for you.