May 29, 2015

Appealing a Probate Matter

6th Circuit Court of Appeal of California
When a party to a California probate action receives an adverse ruling, they basically have two choices. The party can accept the order and move on with their life. Conversely, the party can appeal the decision to the appropriate California court of appeal. However, there are at least three factors which often, either alone or in conjunction with one another, dissuades a party from appealing their case. We will call this person the "appellant."

First, the appellant has the substantive hurdle of overcoming the presumption that the trial court ruled correctly. Denham v. Superior Court (1970) 2 Cal.3d 557, 564. This is not to say that a trial court is infallible. A trial court can commit reversible error through various means. Still, the appellant begins the appeal process with the knowledge of an uphill battle. They have to prove that the trial court ruled incorrectly. Thus, the burden of proof is on them.

Second, the appellant is confronted with the issue of financing the appeal. The cost of an appellate attorney will typically exceed $25,000 and can easily reach $100,000+. Also, there are costs involved with obtaining copies of the court transcripts and other documents. Furthermore, though improper, parties occasionally engage in scorched-earth tactics that drive up the cost of attorneys to the detriment of the lesser party. When the trial court renders an opinion, one party may not be able to afford an appeal given that they exhausted all of their resources at the trial court level. This is usually found in David v. Goliath cases. Most people do not have a limitless source of money or have access to a tree that grows money. 

Third, the appellant encounters the issue of time. A common complaint with the legal system is the length of time it takes to process a claim. It is common for a case to take years to complete and then take another 18 months to funnel through the appellate process. Everybody has a certain threshold of patience and enduring an appeal definitely will test the patience of any litigant. From personal experience, a trust beneficiary contacted me originally in June 2013 to inquire about his mother's trust. Due to a highly questionable trust amendment, litigation ensued. While the case ultimately settled, this did not occur until May 2015. Obviously being in limbo for 2 years is not a fun place to be.

Ultimately though, it is not the attorney's job to direct the client to appeal or not. Rather it is the attorney's job to advise the client of their options and the consequences of taking any of those options. Clients should be aware of this.