When a plaintiff loses his lawsuit, whether by summary judgment, a directed verdict or a jury verdict for the defense, he or she is probably wondering “what happens next”? Can I get a new trial? Can I appeal? Will I have to pay anything? As with most legal issues, the immediate answer is “it depends”. One thing is certain: you have an uphill battle, even if there is a chance of changing the outcome.
If I Lose My Lawsuit, Will I Owe Anyone Money?
This is one of those “good news, bad news” scenarios. The good news is that you probably won’t owe your own lawyer anything. Most personal injury lawyers work on a contingency fee that provides that you owe them nothing if you lose. Be sure to read your fee agreement carefully, though, as some lawyers may still require you to pay their costs.
The bad news is that the defendant is entitled to an award of its taxable costs against you. This doesn’t include every expense the law firm incurred, but it can include some very big ticket items, such as depositions and expert witness fees (these are commonly approved for testifying experts in state courts, but not federal courts, which only allow the recovery of a $40/day witness fee for both lay and expert witnesses). In cases that have been litigated for a long time, or that have gone to trial, these costs can easily get into the thousands of dollars.
The judge will enter a judgment against you for the defendant’s costs, meaning that the defendant can use any means available to a judgment creditor to recover this money from you. Often, the defendant will seek a judgment for these costs even if it knows that you have no ability to pay them. It can use this cost judgment as leverage to get you to waive any appeal rights you may have. In other words, “We’ll drop the cost judgment if you don’t appeal.” This obviously creates a dilemma for plaintiffs even if they think they have a decent chance to appeal.
In certain cases, where state laws allow it and the defendant has followed the correct procedure, you can be held liable for the defendant’s attorney’s fees as well. For example, in Florida, if a defendant makes a procedurally correct offer to settle your case under Fla.Stat. 768.79 and Fla.R.Civ.P. 1.442, and you ultimately recover at least 25 percent less than the amount offered, you will owe the defendant the attorney’s fees it incurred from the date of the offer. This type of offer has very strict procedural requirements, so your lawyer will always know when an offer has been made under this statute and can warn you of the consequences should you choose not to accept it.
Clearly, an award of attorney’s fees can easily reach the tens of thousands of dollars (and in some cases over $100,000.00), so if your lawyer ever tells you that a settlement offer has been made that can cause you to owe the defendant’s attorney’s fees, take it seriously and consider it carefully. If your lawyer fails to inform you that such an offer has been made in time for you to accept it, and you wind up owing fees because of it, the odds are good that your lawyer has committed malpractice.
As with costs, attorney fee awards against insolvent losing plaintiffs are often used as leverage to get you to not appeal.
If I Lose at Trial, Can I Get a New Trial?
There is a procedure which allows your lawyer to ask the trial judge for a new trial prior to filing an appeal. Do not get your hopes up for this motion to be granted. Sometimes, your lawyer will need to request a new trial just to preserve some of your appeal rights. Basically, your lawyer needs to give the trial judge every opportunity to correct errors before he can argue those errors on appeal.
You cannot ask for a new trial just because you are unhappy with the jury’s findings. The jury is given broad latitude to weigh the credibility of witnesses and other evidence. Even if you have three doctors saying your injuries are accident-related and the defendant only has one saying they aren’t, the jury can believe the one doctor over the three. There have to be some pretty severe and obvious procedural or evidentiary errors for a new trial to be granted. Most of the time, the trial judge allowed these errors to occur in the first place, and won’t be inclined to grant a new trial because he probably feels that his rulings were correct.
If I Lose My Lawsuit, Can I Appeal?
As with motions for new trials, you can’t just appeal because you are unhappy with the outcome of your case. You need specific grounds to appeal, the possibilities of which are too numerous to mention. In short, the trial court must have committed what’s known as reversible error in order for you to have a chance on appeal. A reversible error is one which likely affected the outcome of the case, such as allowing or excluding key testimony or evidence, or giving a jury instruction which does not accurately reflect the law and misled the jury into finding for the defendant.
Errors which would not reasonably be expected to have affected the outcome of the case are known as harmless error. For example, if the judge excluded certain evidence regarding the amount of your damages, but the jury ruled that the defendant wasn’t negligent, the exclusion of that evidence had no impact on the outcome, as the jury never reached the question of the amount of your damages.
If you lost your case prior to trial, such as on a motion for summary judgment or directed verdict, your appeal will usually depend on one of two things: (1) whether the judge decided an issue of disputed fact (which should have been decided by a jury) or (2) whether the judge improperly applied the law to the facts. Obviously, these are things that only a lawyer will be able to evaluate.
One thing common to all appeals is that the appealing party is at a huge disadvantage. The appellate court can uphold the judgment on any grounds, even those not argued by the non-appealing party or relied on by the trial judge. The rationale behind this is that if the judge reached the right decision, but for the wrong reasons, you weren’t harmed and you should lose your appeal.
On the other hand, the appealing party can only raise arguments in the appellate court that it raised in the trial court (sometimes, you are required to make the same argument several times at different points of the proceeding in order to preserve that argument for appeal). If your lawyer failed to make an argument at the trial court level, and jump through the procedural hoops required to preserve that argument, he can’t raise that argument on appeal. The rationale for this is that the appellate court will not assign error to a trial court unless the trial court was given every opportunity to avoid or correct that error.
The bottom line is that the deck is stacked against appealing parties, so don’t get your hopes up unless your lawyer feels very strongly about your chances. Waiving your appeal rights in order to avoid paying the defendant’s attorney’s fees (if applicable) or costs may be the best move you can make, assuming that offer is on the table.
If you Lose Your Lawsuit, It Doesn’t Mean Your Lawyer Screwed Up
Sometimes things just don’t go your way. Jurors latch onto very odd things at times, so don’t assume that losing means that your lawyer didn’t do the best possible job. Before you accuse him of malpractice, remember that he’s lost both time and money (often thousands) on your case as well. This is especially true if you rejected his prior advice to settle your case. Take some time to cool off before conducting your case’s post mortem. Meet with your lawyer to discuss your options after a few days have passed and remember that you may still need him should there be any chance of reversing your fortunes.