So Your Client Lost at Trial: What Are Your Ethical Obligations With Respect to a Civil Appeal?

Consider the following: After years of litigation, the jury has found against your client, entering a money judgment against her. Even before the jurors have left the courtroom, she turns to you and asks: “What are we going to do about this?” While you are no doubt considering post-trial motions, an immediate consideration is whether to appeal. Of course, you have been planning for such an eventuality throughout the litigation with well-placed and fulsome objections so as to preserve any error, but two threshold ethical issues must be addressed.

First, what are my obligations to my client with respect to a civil appeal?

That you handled the trial does not mean that you have signed on to handle any appeal. At the outset, recognize that “A lawyer shall abide by a client’s decisions concerning the objectives of representation….” Rule 1.2(a). Those objectives are presumed to be informed by appropriate communication and consultation with the lawyer. Even if the terms of the representation are limited to, for example, handling only the trial, a lawyer needs to still communicate with the client as to the circumstances arising out of the adverse outcome at trial. Rule 1.4(b) provides that “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” So, this means that, following an adverse verdict or outcome, a lawyer needs to counsel the client with respect to her options. This may include post-trial motions, an appeal and/or possibly settlement and dispute resolution, such as mediation.

Practice Tip: After the verdict, set aside some time to discuss with your client her potential options and outcomes.  This may include providing (1) a list of applicable deadlines for post-trial motions and any appeal, and (2) the name of an appellate lawyer with whom she can consult. Make sure you document the conversation and the client’s decision. Even if you do not send a letter or email to the client memorializing the discussion, make a note in the file that you had the conversation.

Second, do I handle the appeal?

Rule 1.1 addresses an attorney’s competency. Specifically, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Generally, trial counsel’s command of the law and the facts makes her especially well positioned to identify issues for appeal. The question of competence, however, addresses as well the lawyer’s skill with, and knowledge of, appellate procedure and advocacy. Ask yourself this: Just because I can handle the appeal, should I do so? Comment 2 to Rule 1.1 provides a way forward:

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.

Finally, Comment 2 closes with: “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” In other words, bring on a lawyer with appellate experience. In doing so: (1) you insure that necessary deadlines and appellate procedures are met, (2) you benefit from an outsider’s perspective on the issues on appeal, and (3) you gain first-hand experience and knowledge of how to handle an appeal.    

A former law clerk at the Court of Appeals of Virginia, Jeff Geiger assists attorneys and clients with litigation and appeals. If you have any questions about this post or other issues, please contact Jeff at (804) 783-7248 (