Are you ready to proceed trial/appeal or mediation?
Over the last several months I have been challenged by the production of “Tips From the Bench and Bar: The Do’s and Don’ts of Hawaii Appellate Practice” – a conversation by and between justices, judges, and appellate attorneys on various topics about the Appeals Process for the State Judiciary. There are 18 contributors sharing their experiences and views – and not always agreeing with each other. Of course there’s a disclaimer about the contents not constituting legal advice and warning practitioners that the process is constantly being updated so there’s no substitute for going to their jurisdictions source documents. What’s interesting about this to mediators?
If you’re not an attorney, and I’m not a practicing one, my production journey through the Appeals Process was, yes like going back to Law school, but also reinforcement of my conviction that litigation should only be undertaken as a last resort. Many things happen at trial and it’s difficult enough to understand. Should the results at trial be unfavorable to us then either drop it and move on or consider an Appeal. An appeal is not a second trial – it is to deal with errors in the way your trial was conducted – and not all errors are of the appealable type. For example an Appeals Court will most likely not consider an error with regards to credibility of a witness – a claim of “he lied at trial” is almost certainly answered and closed as a question with decisions made at trial (you’re not going to be able to drag a witness in front of an Appeals Court). And guess what, you, as Plaintiff or Defendant are not much of a factor during Appeals – it’s a discussion between legal experts - attorneys and the judges and/or justices - about whether or not an error is appealable - in appellate practice called a point on appeal - should be affirmed, vacated, or sent back to trial.
So, when you litigate you are turning over decision making to a judge or jury and if you are Appealing it is about “points” and, one more thing – if the error was not properly dealt with at trial by your attorney – meaning they properly objected during trial and made sure it was entered into the trial record - your ability to appeal most likely has been waived (there is an exception- but to be rarely invoked).
In conclusion when you are involved in conflict think through:
Do you want to give control of decision making in resolution of conflict to a judge, jury, justice?
Do you want to consider losing at trial having relied on your attorney to have not only identified and objected to an “error” but also preserved it in the record, applied for an Appeal, an Appeals Court agreeing to hear your case and upon review somehow then rule in your favor?
Are you ready emotionally and economically for a potentially long and difficult process?
Or are you ready to negotiate, problem solve, and maintain decision making in your own hands through mediation?
