This post was originally published in October 2017. It has since been updated with new information and was most recently updated on November 24, 2020.
Most personal injury cases settle outside of court. However, when your attorney and the defense cannot reach a decision, your case will go to trial.
In a personal injury trial, both attorneys present their case. As the plaintiff, your job is to prove by a preponderance of the evidence that the defendant is at fault for your injuries. The defendant is there to disprove the evidence you present.
Once you go to trial, you are the plaintiff and a witness. Your attorney oversees everything else. You no longer have a say, unless outside negotiations are still going on. Instead, your attorney must follow the civil court procedures and rules of evidence.
Trial Means Verdict
A trial means that a jury or judge’s verdict will decide your case. The jury or judge will rule in your favor or the defendant’s favor. If you lose your personal injury case, you have the right to appeal the decision.
Also, the defendant has the right to appeal. Therefore, you could be victorious with your personal injury claim, and be awarded the damages you need, but the defendant can still appeal and delay your case.
Does Your Attorney Agree?
There is a catch to the right to appeal. In your personal injury case, you sign a contingency agreement with an attorney. That means your attorney does not receive compensation unless you win. So, you may have the right to appeal, but your attorney must agree with the decision to appeal too.
If your attorney feels that you will fail at the appeal or have no grounds, the obligation to represent you in the contingency agreement may state that your attorney does not have to take on the appeal.
Contact Gladstein Law Firm, PLLC
or by calling 502-791-9000.
A Personal Injury Appeal is Not Automatic
Unlike criminal cases, civil cases do not have automatic appeals. If your attorney feels your case is strong enough to win, they may extend the contingency contract and agree to appeal the case. If your attorney disagrees, you may need to pay that attorney for their time as they work on your appeal. Another option would be to find a different attorney who will file the appeal for a contingency.
The process of an appeal is rather simple and involves:
- Filing the notice of appeal – which is done by your attorney.
- Addressing the motion to dismiss the appeal, which is filed by the defense.
- Go to a hearing. Here your attorney must prove that the judge’s decision was inappropriate, or there was another error of law made during your case.
What Can Be the Basis of an Appeal
As mentioned above, an appeal in any civil case – including a personal injury case – is not automatic. The court must agree to hear an appeal. Thus, the first step to filing an appeal is identifying a legal issue that can be appealed. Not every issue is appealable.
For example, issues of credibility are generally not appealable. This is because an appellate court only has the written record of the trial and did not observe any of the witness testimony. Thus, appellate courts typically must defer to the factfinder (either a judge or jury) when it comes to credibility issues, as the factfinder had the opportunity to assess the demeanor of the witnesses.
However, a judge’s legal decisions can generally be the basis of an appeal, provided they are properly raised at trial. For example, an appealable legal issue may be the introduction of certain evidence, a court’s denial of a party’s request, or the improper granting of summary judgment for the other side. Importantly, to preserve an issue for appeal, an attorney must object at the time the issue comes up and then follow strict post-trial procedures; otherwise, an appellate court may consider the issue waived.
Remember Your Negotiations Never End
The defense may have lucked out with a favorable decision the first time around, but if they know they will lose on appeal, they will continue negotiations with you and your attorney. Your case could settle while waiting for an appellate decision.
Need an Attorney to Appeal Your Case?
If you lost your personal injury case, and you feel that you had a strong case against the defense, speak with an injury attorney about appealing your case. Gladstein Law Firm, PLLC can help you with your initial injury claim or your appeal. Our attorneys are here to represent your right to compensation, and we know that trials do not always go as planned for victims with legitimate injury cases.
Speak with attorney Seth Gladstein today at 502-791-9000 or request a no-obligation consultation online.