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Shapiro, Lewis, Appleton & Favaloro
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Personal Injury Appeals

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A wise, old personal injury attorney once said “The injured person doesn’t make any money on appeal.”

The reason that appeal is bad for the plaintiff is that the best an appellate court can ever do is to reaffirm something good that has already happened in the trial court. If an injured person or a family whose loved one has been killed due to someone else’s fault gets a big verdict, the defendant lawyers will nearly always appeal. Although the defense theoretically needs a valid basis to appeal because the judge or jury violated the law in the trial court, as a practical matter the insurers will appeal every time they get hit for a large verdict, even a fair one. The big insurance companies and corporations always appeal a good verdict for the injured person because they can get leverage to try to get the injured person to settle a case for less than the verdict amount. This happens so routinely that it is almost like clockwork. When you read about big verdicts in the newspaper, which get a lot of media coverage, you should realize that a lot of times the injured person or the family whose loved one has been killed does not actually get that amount of money because of appeals.

The problem for the plaintiff is that appeals take time and money. Depending upon the state, it can be a year or more to be heard in the appellate process. During that time, the insurance company or at fault corporation can try to starve out the injured person and their family. Typically, if you suffered a serious personal injury or the wrongful death of a wage earning family member, the plaintiff is going through extreme emotional and financial stress. The idea of adding another year on to that is heartbreaking. Additionally, there are a variety of costs associated with the appeal, including ordering the transcript of the trial, not to mention the additional attorney’s time to handle the appeal. The plaintiff’s attorney may recommend to their client to consider discounting the amount of the verdict in order to get the case resolved and prevent a long, dragged out appeal process. This is often a sound business decision.

Part of the problem is that there is very little cost to the defendant in filing a frivolous appeal. Even if the insurance company is unsuccessful in the appeal, it really does not harm them at all.

The other likely scenario for an appeal of a personal injury case is where the defendant has won the case in some way which is clearly in error. Typically, this happens where a judge takes the case away from the jury deciding that he knows better and that the defendant should win. This process, often called summary judgment or striking the plaintiff’s evidence, is the court substituting its judgment for the jury of the injured person’s peers. The judge in taking away the case may be abusing her discretion. Although judges are supposed to be neutral, they often have a hard time not bringing their own prejudices to the bench. In states where judges are elected, they may feel beholden to the big business or insurance interest who contributed to their campaigns. If the judges are appointed, like they are in Virginia, they may feel beholden to the party, such as the Republicans, who chose them and got them put on the bench. Judges are people too and were often attorneys in private practice, sometimes representing insurance companies and big corporate defendants before becoming judges. Sometimes judicial errors are made because the judge is simply not as familiar as they should be with the specific area of law in question like personal injury or medical malpractice . For example, complex railroad injury cases are often difficult for judges who do not routinely handle such issues. The area of F.E.L.A. law controlling injuries to railroad workers is completely different from the usual state court tort law.

Our firm has had experiences where judges have thrown out cases when they should not have. See our real cases reports at hsinjurylaw.com. We have managed in some cases to get these judges overturned through the appeals process. However, the best thing that can happen on an appeal is to be sent back to the trial court to do it again. The plaintiff has not only had to suffer through a year of the appellate process but are back to square one having to try their case for a second time. Typically, you are sent back to the same judge who made the error to begin with. However, if the plaintiff wins reversing a judge for an improper striking of the plaintiff’s case, at least there is a higher court telling that trial judge how he is supposed to do it on the second go round.

You can easily see why the appeals process does not make any money for plaintiff’s lawyers and is difficult for injured persons.