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Saturday, September 29, 2012

Appeals - Is the case ever really over?

The ball was in the air, less than 30 seconds to go, and it was fourth and 12.  BYU quarterback Riley Nelson had thrown up a prayer to his favorite wide receiver Cody Hoffman.  The game was over for all practical purposes.  Hoffman caught the ball for a 47 yard completion good enough for first down at the Utah 34 yard line.  After BYU spiked the ball to stop the clock, eight seconds remained.  Suddenly, things had changed.  It was not necessarily over.  No hope turned into a glimmer of hope.  Fifty-one yards was a lengthy field goal for a kicker who had missed from 44 earlier in the game, so BYU opted to run another play. Nelson attempted a pass to the sideline but his arm was hit as he released the ball causing the ball to go high in the air.  The ball stayed up for what seemed like an eternity and the clock turned to zero.   Utah had won the game and its rabid fans, wearing nothing but red fervor and passion, stormed the field.  Nelson adamantly indicated there was still a second left on the clock and the replay officials agreed.  One second was put back on the clock and the field was cleared. 

The kicker trotted onto the field.  His ensuing kick was cleanly blocked by the Utes and once again the Ute players and fans stormed the field.  In the midst of their storming they failed to notice a BYU player running with the ball.  The play was not over.  The BYU player had picked up the ball after the blocked kick and tried to advance it.  Out came the yellow flag.  After what seemed like multiple huddles and conferences, an official emerged to state unequivocally that Utah was being assessed a 15-yard penalty for the infrequently called “fan/player/coach stupidity” (okay – it was actually for running onto the field during a live play).  All hope had been restored.  Some of the devout were becoming convinced that higher forces were at work.  Instead of a 51-yarder, BYU now had a much easier 36-yarder.  The field was cleared again.  Out trotted the kicker, up went the kick, and “clang!” went the ball off the left upright.   Utah fans stormed the field for a third time in victory.

I did not bring the recent BYU v. Utah game up to torment BYU fans or to ridicule Utah fans (okay – maybe to ridicule them a little bit).  The game is very reminiscent of the litigation process.  In some cases winning at trial is just the beginning.  If you are fortunate enough to win at trial the other side can appeal.  In most instances, a party has 42 days from the decision or verdict to appeal.  Once an appeal is filed, there is a whole new set of rules that apply.  Navigating this process can be difficult and time-consuming.   Just like Utah had to win the game three separate times, a party to litigation must win at trial and on appeal. 

An impressive trial verdict is worthless if the Idaho Supreme Court finds that you broke the rules to get it.  Having a skilled trial attorney who does not cut corners becomes paramount.  Passion is good but being so enamored with the prospect of winning that you miss important details (such as a player running on the field in plain sight with the ball) is not good. 

The decision on whether to appeal should only be made after careful consideration and consultation with a party’s attorney.  Once the decision to appeal is made, a party must rely on his or her attorney to decide which issues to focus on and what legal maneuvering to make.  These decisions are not always obvious.  Due to previous kicking woes, perhaps BYU should have opted for a fake field goal on that last play.  The two most likely outcomes were:  (1) Utah gives up the winning touchdown; or (2) Utah fans run onto the field again as the play is still in progress thereby tacking on additional 15 yards and extending the game even further.  The point is a party needs to rely heavily on his or her attorney in navigating the appellate process because the right path is not always obvious.

It is true that winning at trial is a significant step on the path to winning the case, but it is not always the last step.  Some appeals go on for years.  The Idaho Supreme Court can decide to agree with the lower court (affirm), disagree with the lower court by sending the case back down to the lower court to fix the problem (remand), disagree with the lower court by actually changing the outcome (reverse), or any combination of the above.  If a case is remanded, sometimes an unsatisfied party will appeal the case again.  Like trials, appeals sometimes produce surprising outcomes.  Attorneys often think they should have won when they have lost.  Just as opposing counsel deserves to be congratulated, Utah players, coaches, and fans deserve congratulations. So congratulations Utah!  I would have delivered the message in person but every time I try to approach Utah fans they spontaneously run away with their arms in the air. 

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

Staff at 1:20 PM
Litigation
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