So, you endured the litigation process and received a judgment.
But you’re not happy with it, as many experience.
Statistically, most cases are never appealed and those that are face a high hurdle.
However, some succeed, of course, clarifying the law or potentially overturning the decision of the lower, trial Court.
The obvious appeals involve a Judge misinterpreting or misapplying the law – those types of appeals are more straightforward, but also fairly rare.
What about other grounds available to you?
If you think you have been unfairly treated, judicially speaking, here is how you should examine whether you should consider an appeal:
1.Were the parties able to exercise all their procedural rights?
One of the myths of the law is to think that a good lawyer is a cunning person capable of planting annulments at their convenience, throughout the process, which end up defining the trial, in the last moments. Betting on such a strategy may prove unsuccessful. The decisive factor to point out a process as flawed is that one of the parties has really been unable to seize any of its stages.
Did the Judge listen to both parties before adopting a resolution? Did the judge timely notify the start and end of each stage? Was there access to evidence from the opposing party? The central issue is whether one of the parties suffered a defenseless situation. Something important to assess on this point is that the appeal will correct procedural defects. Thus, an appeal that thrives under this argument will guarantee a fair trial, but not win it directly.
2.Did you enter all the necessary evidence to the trial?
“Da mihi factum, dabo tibi ius" (give me the facts, I will give you the right) is a phrase that perfectly sums up the work of all the judges around the world. Now, such facts are made available to the Judge based on the evidence that enters the trial as long as they meet certain requirements. It must be related to any of the facts discussed in court, must be sufficient and useful to prove them.
The general rule is that the entry of evidence is allowed and only failure to comply with any of these requirements leads to its rejection. In this sense, it is necessary to attend to two elements that could go unnoticed. First, the interested party must expressly record in the corresponding act the disagreement with the exclusion of evidence. Second, the rejected evidence will be produced at that stage, making it critical to argue how this new element should modify the award.
3.Did the judge do a correct analysis of the evidence?
A judicial process is a search for the truth, under a certain method guided by logic, experience and psychology. Thus, the judicial reasoning expressed in an award should follow objective and verifiable parameters. It is important to know the principles under which the evidence was analyzed and to be clear about what should be considered as accredited according to them, to access a true review of the evidentiary analysis.
The first step to effective persuasion is clarity. Thus, it is essential to identify what is the error in the evidentiary examination and identify which premise (logic, experience or psychology) is the one that was violated when the Judge declared that something was proven (or not). The foregoing provides clarity to the Court of Appeals on the point whose review is requested and, furthermore, demonstrate why the meaning of the award should be modified.
Credit:
Ruben Rivas, Torres Law (via Lexology on July 29, 2020).
