If the judge in the court below issued detailed written conclusions of law, a pro se appellee can, in a pinch, ask for the decision to be affirmed for all of the reasons stated by the trial judge. The appellant will have filed a brief attacking the trial judge’s reasoning in various ways, but at least the appellee is on record with a credible position.
Now I’m confused… so in the trial it was 1 litigant arguing against another litigants’ position (well usually their lawyers doing so on their behalf). Ok, but the appeal is the dissatisfied litigant arguing against (generally)… the trial judge’s interpretation and answers to questions of law, not the other litigant’s arguments from that trial? If that’s the case, why is it the winning litigant’s responsibility to come back and defend the trial judge’s decisions after the fact? And why is it so difficult to win an appeal UNLESS the other guy doesn’t show up… in which case you automatically win even if you would have lost for a hundred other reasons?
It almost seems as though, when an appeal is allowed, the trial verdict isn’t really enforced/upheld unless the winning side can defend the judges decision. IOW, you have to be able to win twice and the original trial result gets discarded if you lose round 2. That seems weird and highly unlikely to me… where do I have this wrong?
Well, remember that the facts are generally not subject to appeal. In most cases, having your view of the facts accepted by the courts gives you a major leg-up if the other side appeals, because the opposing counsel and the appeal court must accept your view of the facts, as found by the trial court. That in turn normally limits the scope of the legal arguments which can be made, which favours you as the successful litigant in the court below, now respondent on appeal.
Second, the onus is always on the appellant to show why the judge below erred. The respondent can win without participating, but it is always better for the respondent to appear and argue the case in defence of the trial judgment.
Third, the point of appeals in general is to recognize that mistakes can be made, even by an experienced trial judge. Therefore, the basic concept of an appeal means that it is always possible to have the higher court overturn the lower on points of law; but they have to be convinced that the lower court did in fact make a legal error.
I have been successful on appeals without ever opening my mouth. It is possible for the court to hear the appellant and decide that he hasn’t made the case that the lower court erred.
Then you hear the sweetest words imaginable in an appellate court: “We do not need to call on you, Mr Piper.” 
OK that makes sense… my misunderstanding must lay in what’s said here:
This appears to be a loophole that “forces” the court of appeal to rule in favour of the appellant only if Joe ignores the appeal and doesn’t even show up. If Joe does respond/shows up in an acceptable (though perhaps ill-prepared) form, then they go through the whole process of hearing and arguing the appeal which as described heavily favors Joe.
But the part that gets me (and I’m assuming I’m wrong about) is that if Joe doesn’t respond at all to the appeal, GloboCorp automatically (or nearly so) gets appointed the winner and doesn’t have to go through all those steps of proving the trial judge erred etc… and might in fact get the trial judgment overturned even though it was perfectly sound and just… we never find out because GloboCorp was declared the winner by default. That’s not how it works, is it?
So what is to stop GloboCorp from just driving the defendant into bankruptcy?
Globocorp can spend as much as they like on their own legal representation, but they can’t force the other party to spend anything. Sticking with the example of an appeal, Globocorp could certainly appeal on unmeritorious grounds and, if they choose to, spend $10m of their own money on legal representation in that appeal. But the other party doesn’t have to spend $10m; he just has to spend enough to make the case that the grounds of appeal have no merit. And, of course, the less merit they have the easier, and therefore cheaper, it is to point this out. Since in this situation the defendant is highly likely to succeed in the appeal, he’ll generally have no difficulty in finding a lawyer to take the appeal for him on a contingency fee basis.
It’s different if Globocorp has solid grounds for appeal which may very well succeed. But in that case Globocorp are not being bullying or oppressive in appealing. If there’s a serious objection to the trial judge’s position, why shouldn’t Globocorp appeal?
Where the defendant is in the weakest position, I think, is where (a) there are solid grounds for appealing against the trial judge’s ruling, and (b) Globocorp needs to do so because, if the decision at first instance stands, it creates a precedent which will be very adverse to Globocorp. In that situation Globocorp pretty well has to appeal, and really can’t settle the appeal by paying the other party some fraction of the original award, because they need to get the original finding overturned by the higher court.
This appears to be a loophole that “forces” the court of appeal to rule in favour of the appellant only if Joe ignores the appeal and doesn’t even show up. If Joe does respond/shows up in an acceptable (though perhaps ill-prepared) form, then they go through the whole process of hearing and arguing the appeal which as described heavily favors Joe.
But the part that gets me (and I’m assuming I’m wrong about) is that if Joe doesn’t respond at all to the appeal, GloboCorp automatically (or nearly so) gets appointed the winner and doesn’t have to go through all those steps of proving the trial judge erred etc… and might in fact get the trial judgment overturned even though it was perfectly sound and just… we never find out because GloboCorp was declared the winner by default. That’s not how it works, is it?
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No, it’s not a default win for GloboCorp, and I apologise if that’s what you took from my comment.
It is an adversarial system, but the Court doesn’t just treat it like a sports event where one team doesn’t show, and hold up GloboCorp’s lawyer’s hand and say “Da winner by default!” If Joe doesn’t show up for the appeal, the appeal court still has an obligation to require GloboCorp to meet the test that the decision below was wrong. The Court will ask probing questions and critique the arguments from GloboCorp. But, if GloboCorp is there with a well-prepared lawyer or lawyers, who are ready for the appeal and can answer the questions, and there is no-one on the other side, the odds are that the Court will be persuaded and allow the appeal.
If Joe shows up and says, “I’ve got no money and can’t hire fancy lawyers but I rely on the trial decision” he’s a bit better off, but still very much at a disadvantage. The Court has to be neutral between the two. The Court can’t say, “since Joe is unrepresented, we’ll act as his lawyers and really be sceptical of GloboCorp”. That would breach the Court’s duty of neutrality and impartiality. They can’t start favouring Joe because he doesn’t have a lawyer.
The trial is over the facts and the law, both in abstract and as applied to the facts of the case.
On appeal, the trial is over the law, as determined by the trial judge and as applied to the facts of the case.
But, it is not the job of the appellate court to examine the court record in the abstract, without any input from the parties. It’s an adversarial system. If GloboCorp wants to have the decision overturned, they have to persuade the appeals court that the trial judge erred in law.
The Court is neutral between the parties and will not review the record on their own. They will consider the issues raised by the parties and decide accordingly. That’s not a flaw or a loophole; that’s the essence of the system. The court’s neutrality is central to a fair appeal, and therefore it’s up to the parties to argue why the decision below is wrong (appellant’s take) or correct (respondent’s take).
I still don’t get it.
The appeals court judges are not dummies. They don’t just take the appealing lawyers’ arguments and say “well duh, I never thought of that”. They are capable of considering the legal arguments being made by the appealing lawyers and deciding whether these are valid as a matter of law or not. Presumably there’s at least a half-decent case that they’re not, because we’re talking about the rulings of the trial judge, generally a qualified guy himself.
In such a circumstance, the respondents don’t need to break any new ground in arguing that the trial judge’s rulings were correct. The rationale for them being correct should be within the abilities of these appeals court judges to figure out on their own.
Not to deny that having lawyers at the appeals stage wouldn’t help the winners of the trial. A good lawyer might raise issues that the judges might not think of, or dig up some relevant precedents etc. Just that your initial statement here, that ignoring the appeal “will result in the Court of Appeal ruling in favour of the appellant, in all likelihood” is either overstated or the system is seriously flawed IMO.
I appreciate that you’re a lawyer, but I wonder if any other lawyers posting here might comment on whether and to what extent they agree with your assessment.
Sure, I’d be pleased to hear from others.
All I can add is that if I successfully represented a client at trial, and the other side appealed, and my client said, “You know what? I don’t think you need to appear. The Court of Appeal judges will do the work for us,” know what I would do?
• I would draft a letter in big BOLD letters to my client, strongly advising that they send a lawyer (doesn’t even have to be me) to Court and argue the case as best that lawyer can.
• And I would want a videotape of me reading that lawyer to the client.
• And a receipt signed in blood that the client got the letter.
Because if I let my client do that without trying to persuade them otherwise, I think I would be guilty of professional negligence.
I’m with Northern Piper. On an appeal, the issue in dispute is the state of the law. (In many trials at first instance, that’s also the case - there may be little dispute about the facts.) And obviously when you’re arguing about the state of the law, it helps enormously to have legal knowledge. If the appellant is essentially saying “we think the trial judge got this wrong, and here’s why”, do you really want to be in the position of shrugging your shoulders and saying “well, I think he got it right, but if I’m honest my only reason for thinking that is that it’s advantageous to me to think that”?
It can and does happen that an appellate court denies an appeal even when the other side doesn’t show up. See, e.g., State of Nebraska v. Hood, decided by that state’s Court of Appeals last summer. The state appealed a district court finding, Hood didn’t bother to appear at all, and the court of appeals found the state hadn’t complied with the rules for docketing an appeal, so dismissed the appeal for want of jurisdiction.
It can happen. It’s just not a good idea to count on it happening.
It can happen, no doubt. But counting on something like the other side making a filing error to win your appeal is not an odds-on favourite.