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The Birth Injury Appeals Process


When the trial ends, the case may not be over. Birth injury lawsuit trials can be complicated, and it is not uncommon for trials to last two or three weeks. During all of the time, the judge makes decisions about testimony and evidence, and the lawyers present information to the jury. No person is infallible, and it is possible that some evidence is admitted or excluded, contrary to the law. When that or any other legal mistake happens, if the error was harmful to one side, they may file an appeal if they lose the case because of it.

Timing of Appeals

Each court has different rules, but in most cases a notice of appeal will be filed within 30 days of the case’s conclusion. This lets the court and the other parties know that one party disagrees with something that happened. After that, there will be a schedule for filing arguments (known as briefs) with the appellate court. The process can take one or more years.

In some states, the appeal may move through multiple higher-level courts. Appeals may be of right (that is, the parties have an absolute right to have a higher court review the case), or they may be discretionary with the higher court. If it is discretionary, the appealing party will file a petition for certiorari, which is a document asking the court to review the decision of the lower court. If the court accepts, a briefing schedule will be set.

In most courts, a hearing will be held after the briefs have been filed. Each party will have a one or more lawyers represent them before a panel of judges in an attempt to answer the judges’ questions and to convince them about how the case should be decided.

Settlement During Appeal

When a child with birth injuries wins at the trial court level, the defense will almost always file an appeal. They do this no matter what their chances of winning are, because it is often used as a negotiation strategy. They know that they have the ability to drag the case out for another year or more. Depending on how likely they are to win the appeal, the lawyers may begin settlement negotiations. There is a chance that the case could settle for less than the verdict at the trial court, though you will have a right to review any settlement offers and demands. This can be counterintuitive, because the case was won below, and yet the plaintiff may settle it for less than they should have received. It is important to remember that settling may be in the parties’ best interests—it provides some assurance about what the outcome will be, and it prevents a lengthy process.

However, if the case does not settle during the appeal and the plaintiff succeeds on appeal after a favorable trial verdict, some states will allow for the payment of post-judgment interest. That means the appealing party may have to pay interest (at the state’s legal rate, or a rate set by the courts) on the amount of the verdict from the date of the trial court’s judgment. In large cases, this can add up to a significant amount of money.

What Can An Appellate Court Do?

The appellate court can do a number of things. It might decide that the trial court was correct, and affirm their decision. If so, the parties may be able to appeal to the next level of court (if there is one). If not, the case is over and the trial verdict stands.

The appellate court may agree that the trial court was wrong about something. If so, the important question will be whether that error contaminated the trial verdict. Some mistakes are known as harmless errors, and they are not enough to change the outcome of the trial verdicts. Other mistakes cause undue prejudice to the losing side. If that happens, the appellate court will probably send the case back to the trial court for a new trial, with specific instructions on how some evidence should be handled.

Contact Us

Knowing what to expect at trial is an important part of the decision about whether to file a birth injury lawsuit. If your child was injured and you have questions about the litigation process, please contact our medical malpractice lawyers at (440) 252-4399, or send us a message through our website.

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