Here’s a very basic, very depressing rule of thumb: roughly nine out of ten cases get affirmed.

The exact figures vary by court, and we can certainly debate the utility of macro and micro figures, but the basic disparity is there.

Part of it has to be a result of the appellee having a decent case; after all, he or she won below.

But part of the disparity also results from a few key structural and doctrinal concepts. Learning to leverage these concepts can help you maximize your advantage as an appellee, as Andrea Ambrose showed in a piece she did for the ABA called Making the Best of Being an Appellee.

The factors favoring an appellee are, in no particular order:

  1. Standard of review. We’ve talked this one to death over the years, but many appeals aren’t contested on a level playing field. If the appellant is challenging a discretionary ruling or a factual determination, the standard of review tilts heavily in the appellant’s favor, and clever appellees use this to their advantage. They also look for ways to frame the issues that will trigger a more deferential review. George Somerville has a great outline on standards of review, and the VTLA appellate journal did a whole issue on them last year. Both are terrific resources.
  2. Waiver. The appellant bears the burden of preserving issues for appeal. In other words, the appellant has to both give the trial court a fair opportunity to rule intelligently on the issues, and make sure that the record is adequate to allow the appellate court to consider those issues. That sounds easy enough in the abstract, but it can be extraordinarily difficult to do in the heat of trial. Add to that the possibility of later abandoning an argument or acquiescing in a trial-court ruling–either intentionally or otherwise–and you have a serious hurdle.
  3. Procedural Default. Deadlines, deadlines, deadlines! Miss a notice of appeal deadline, and you’re out of court. In state court, meet a notice of appeal deadline with a notice filed by out-of-state counsel, and you’re out of court. Forget to file the transcripts on time, and you’re out of court. Write a bad assignment of error, and you’re (at least effectively) out of court. Again, it sounds easy enough–just know the rules and follow them!–but in practice, this stuff can get very tricky. To be fair, procedural default is a bigger threat in state court than federal court, because the Fourth Circuit’s case managers will walk you through the process of handling the appeal, and the court can be surprisingly generous with extensions and forgiving of missed deadlines. Even so, in combination principles 1, 2, and 3 allow the appellee to sit back and wait for the appellant to make a mistake.
  4. Harmless Error. Trial courts have been known to do some pretty odd things–but if those idiosyncratic rulings or mistakes don’t change the outcome of the trial, then they don’t matter. See, e.g., Fed. R. Evid. 103(a) (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party . . . .”)
  5. Right for the Wrong Reason. Here’s a corollary to the harmless-error rule: The trial court can be right for the wrong reason. That is, even if the trial court is patently mistaken (“I’m entering summary judgment in favor of the defendant because Justin Bieber”), it will be affirmed on any other ground supported by the record (e.g., the trial court’s exclusion of the plaintiff’s causation experts). See, e.g., Perry v. Commonwealth, 701 S.E.2d 431 (Va. 2010). The net result of principles 4 and 5 is that a trial court can do some wacky things without getting reversed. This wackiness will perplex and infuriate your client and trial counsel, but it won’t support reversal.

So how can you put these ideas to work? In our office, as soon as we receive a petition for appeal (in state court) or an opening brief (in federal court), we review it for these factors, and frame our response accordingly. Especially at the writ stage, it’s often much quicker and more persuasive to dispose of arguments along these lines rather than delving into the weeds of the appellant’s arguments.