Say Joe Schmoe decides to sue GloboCorp because GloboCorp did something bad and illegal against Joe. Joe has no connections so his only choice is to self-fund and liquidates all of his net worth in order to fund the lawsuit. At the end of the trial, the judge rules that GloboCorp was in the wrong and orders GloboCorp to pay Joe a large number of millions in damages. However, as soon as the trial ends, GloboCorp turns around and immediately appeals the verdict. At this point, Joe has no financial resources left and cannot afford to hire lawyers to defend against the appeal.
What happens in this situation? Does GloboCorp automatically win the appeal because Joe can’t muster up any representation? That seems extremely unfair and a way for large companies to evade wrongdoing. Can Joe use some of the settlement money to either directly fund the lawsuit or as collateral against a loan to fund the lawsuit? Do the courts have a defined way of dealing with scenarios like this?
Joe needs to find a lawyer who will take the appeal on a contingency fee arrangement. Since Joe’s case was strong enough to win at first instance, and since most appeals in fact settle, there is an excellent chance that some large amount of money will be coming Joe’s way, even if not all the millions that he was awarded at first instance, and this leave him well-positioned to come to a contingency fee arrangement with a law firm.
Assume for the time being that Joe can’t find an alternative form of financing through contingency or other means (maybe because Joe has a religious belief that regards being in debt to anyone is a sin). I’m less interested in creative financial ways of getting Joe out of this mess and more about what the law says about what should happen in this scenario.
Nitpick: a contingency fee is not a debt. It’s just an agreement for payment by results.
Most likely nothing, though of course it must depend on the jurisdiction where Joe is litigating.
If Joe is living in a jurisdiction that provides civil legal aid to the needy, then Joe may well have been provided with representation under the civil legal aid scheme for the trial at first instance. The scheme regulations will determine whether he is entitled to continue to receive that representation at the appeal stage, but the answer is most likely yes.
If Joe is not living in such a jurisdiction, and he funded the legal costs of the hearing at first instance himself but has now run out of money, the law will say exactly what it would have said if he had had no money to begin with, and had been unable to fund the hearing at first instance; represent yourself, or abandon the proceedings. If they don’t guarantee him a right to representation (at someone else’s expense) at the start of the process, why would such a guarantee kick in half-way through?
If Joe won the appeal, or GloboCorp caved. Wouldn’t he be able to add all the extra costs to his damages claim? In the UK, the loser is nearly always required to pay all the costs of both sides. This is why so many cases get settled out of court.
Does Joe have to even respond to the appeal? He won the original suit. If he just ignores the appeal wouldn’t the onus still be on the corporation to prove the original judgement faulty?
In the US, the usual practice is for each side to bear the own costs, regardless of the outcome of the case. There are a few exceptions to this, but not many.
But nevertheless most lawsuits still settle; the prospect even of bearing one side’s costs is a powerful incentive to settlement, and regardless of how optimistic they are about the outcome of a trial both sides have this incentive.
IANAL.
How expensive are appeals? I understand them to be reviews of the court case. No new facts or arguments allowed. I understand that there will be filing fees and the side filing the appeal has to write up their interpretation of what went wrong, but what does the winning side do? Do they have to pay filing fees? Argue against the argument of the other side? Sounds like turtles all the way down if each side keeps arguing against the arguments of the other.
IANAL but I’ve never heard of a jurisdiction providing legal aid to the needy in civil cases. Especially when the legal aid in criminal cases is so poorly funded and the risk there is that someone will be unjustly imprisoned.
The basic point in the court system I’m familiar with in Canada is that you get one appeal as of right, to attempt to show that the trial court got it wrong. That’s a normal concept of review: the litigant who is not satisfied with the result is entitled to have one other court look over it, to see if a mistake was made.
And there are limits on what can be appealed. New facts are generally not allowed. The trial judge (and jury, in a jury case) had the benefit of listening to all the witnesses and assessing their credibility. It is extremely difficult to persuade an appeal court that the trial court erred on a factual issue. Nor, as a general rule, can there be new evidence, unless in highly exceptional cases (e g a new piece of evidence comes up that the party simply did not know about and could not reasonably have known about).
And not all questions of law at trial can be the basis of an appeal. Appellate courts are reluctant to second-guess trial judges on the process followed at trial, unless there was a clear legal error in process, and that error prejudiced one of the parties.
instead, the focus on appeal is on the major questions of law raised by the case: did the trial judge get those questions of law right?
In filing an appeal, there are two main areas of costs, in my experience: the brief and the record. Oral hearing can be a third major expense, if there is an oral hearing.
It’s the brief that is most important. You have to prepare a written argument on the law, relevant to the points in issue, and possibly with respect to the trial procedure, if one of the issues is that the trial judge made a mistake. That’s the main cost of an appeal: paying a lawyer to prepare a detailed brief of law of the issues, which can take many hours of research and writing. The research is probably done by a junior lawyer, but the lawyer handling the appeal does the final work. How much that costs will depend on the hourly rates charged by the lawyer, but start rates would likely be at least $300/hour (my guess; can vary tremendously from jurisdiction to jurisdiction, and from law firm to law firm).
There’s also the need to file the record. In some courts, the Appellant bears the cost of doing that, but in other courts, both sides have to file the parts of the records that they rely on. The record includes the transcript at the trial, the exhibits filed at trial, and so on. In a major case, the record can be many volumes. That can also be extremely expensive, depending on the length of the trial. And it’s usually multiple copies, often at least 4: one for each judge on the three-judge panel, plus one for the court office. If the appeal court sits more than three judges for the appeal, the cost of the record increases accordingly. Think of 10 volumes of 200 pages each, photocopied and bound, multiplied by 4. Plus the cost to the para-legal for putting that together, under the supervision of the lawyer.
Then there’s the actual appeal. In some jurisdictions, oral hearings are automatic; in others, they are in the discretion of the court. If there is an oral hearing, you have to pay the lawyer the prep time for the appeal, plus the actual appearance, which is normally at least half a day. There may be travel expenses involved as well, if the Court sits in a different centre from where you and your lawyer are located. The lawyer will bill at the same hourly rate they used for prepping the brief.
What happens if you lose on appeal? for most litigants, that’s it. There is normally a second level of appeal, to a supreme court of some sort, but there is generally no right to appeal to that court. The party who wants to appeal has to apply to the court for leave to appeal (called cert at the SCOTUS level; different courts have different names for it). And it’s not enough to argue that the appellate court made a mistake; the supreme court is not a court of error, generally, but a court whose function is to develop the law. A party has to show why their case raises a significant question of law that warrants review by the supreme court. That’s a very difficult standard to meet.
In Canada, legal aid is normally provided to couples for family splits (divorce/custody/support issues) and also to child protection matters (where a children’s aid society has brought an application that a child is in need of protection).
OK, that I can see, but I can’t see government-supported legal aid in the case described in the OP. Especially not when the plaintiff stands to get rich and could just make a contingency fee arrangement or finance the lawsuit.
Lots of countries provide civil legal aid, though the precise terms as to who is eligible and what kind of cases get funded and how much funding is available and how cases get prioritised if there are more cases than funds vary widely.
Under the Charter of Fundamental Rights of the EU, “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. All EU countries therefore have to have some legal aid scheme, though they have a pretty wide discretion as to what the terms of that will be. In the UK, which is one of the more generous schemes, about 30% of the population qualify for legal aid, and it covers all criminal cases, most civil cases (but not personal injury cases - for which you are expected to get a lawyer on a contingency fee basis - and not cases associated with the running of a business). Defamation cases are covered only exceptionally.
Very often legal aid will be subject to a contingency arrangement; if you are successful, you may have to reimburse the legal aid authorities out of any money judgment you obtain.
As I understand it, the original trial is over the facts and the appeal is only over the law. I would think the appellate judges can figure out the law on their own. Why would a guy lose just because he can’t get lawyers to find relevant precedents etc.? The appeals judges should be doing that on their own.
This. Most people don’t realize that actually going to trial is a BIG DEAL for a lawyer practicing civil litigation. It’s not something that’s commonly done by most of them.
My wife, for example, practiced civil law for 6 years doing worker’s compensation cases mostly on behalf of insurance carriers.
I think out of the hundreds of cases she handled in that time, maybe ONE actually went to trial, and IIRC it was some lunatic pro-se plaintiff. Most of the rest were settled out of court, and a small number were either dismissed by judges, or dropped by the plaintiffs.
No, it’s an adversarial system. It’s not up to the judges to make a party’s case for them; it’s up to each party to put his case to the court, and the court will then rule on it.
One of the features of an adversarial system is that you have to engage with it, or you lose. If you fail to respond to proceedings served on you, the other party can apply for, and will normally get, judgment in their favour (called “judgment in default”).
I don’t get why it should be that way, and if it is then it’s a flaw in the system.
But even if so, suppose the guy shows up and says “hey, I ran out of money for lawyers, and I don’t know the law. But that other judge said the law was on my side, so I’m challenging this appeal.” I can’t imagine the appeals judges will just toss out a ruling made by another judge based on the fact that this lay person has failed to argue why that ruling was correct. The fact that another judge who is presumably knowledgeable of the law ruled this way should be a tipoff that it’s not a frivolous argument and at least worth looking into and forming an independent opinion about.