Considering an Appeal? Read our Top 3 Tips

April 17, 2017
F. Scott Murray

Even those who have never been inside a courtroom are aware of the potential downsides to any kind of litigation: it can be expensive, time-consuming, and unpredictable – not to mention highly stressful! Sometimes, however, as my colleague Jessica England points out, it makes sense to resolve your family law issues through the courts.

Unfortunately, even when litigation is the right choice, the experience can feel like a waste of time and money if the judge does not rule in your favour. To avoid that feeling, unsuccessful litigants tend to think: We should appeal! 

Top 3 Tips When Considering an Appeal

As is often the case when dealing with the court system, it is not always that simple.  There are a number of things to consider if you want to challenge a judge’s decision. Here are our top 3:

1. Act fast.

If you are thinking of appealing, speak to a lawyer as soon as possible after receiving the trial judge’s decision.  Deadlines for filing the documents needed to start an appeal are generally very short, so you may miss your appeal opportunity if you wait too long.

2. Have reasonable expectations.

Appealing a judge’s decision does not mean you (or your lawyer) will have a chance to argue your case again in front of different judges.  Rather, an appeal is an opportunity to correct mistakes the judge made in his or her decision.  To succeed, you must be able to identify those mistakes and articulate them to the judges hearing the appeal.

3. Understand the process.

While an appeal should always centre on the original judge’s (alleged) errors, not all errors are created equal.  There is a difference between errors of law and errors of fact.

· Errors of law: An appellate court’s main function is to correct the trial judge’s errors of law, so that the law is being applied uniformly and correctly by all judges. To prove an error of law occurred, you simply have to show that the judge was incorrect (even if only slightly) about a point of law and that this error affected the outcome.

· Errors of fact: It is much more challenging to argue that a trial judge made an error of fact.  Appeal judges generally defer to a trial judge’s findings of fact for various reasons, not least because that judge was in the best position to make factual findings given his or her opportunity to review and hear oral testimony from witnesses. To prove an error of fact, you must convince the appeal court that it would likely have decided the facts differently had they heard the case –that the original judge was clearly and obviously wrong about an important fact.

Other Pros and Cons

While an appeal will not typically consume as much time and money as a full trial, the pros and cons of any litigation still apply:

· It can be costly.  While many appeals are heard in only a half-day of court time, in most cases your lawyer will need to spend a fair amount of time on legal research beforehand to be able to show why the judge was wrong. And if you lose, you (usually) have to pay the other side’s costs, just like in other courts.

· It can go on longer than you think.  While securing a court date for your appeal will likely not take as long as it does for a trial, the appellate court can still take many months after hearing your case to release its decision.  And, if you win, sometimes the other side can appeal the appeal decision to a higher court.

Ultimately, if your lawyer believes you have a good chance of persuading the appeal court that the trial judge was wrong, an appeal can be a sensible choice.  Given the time and money already spent on litigation, spending a bit more to achieve the correct result may be the right thing to do.

F. Scott Murray
F. Scott Murray
Lawyer (Kelowna)
Connect Family Law

Scott is driven by a passion for finding creative ways to use the law to help people. He comes from a litigation background, and worked in a variety of areas before deciding to focus on family law.