Appeals are demanding and complex matters, involving various stages and important advocacy issues.The following is a brief review of the major elements of the appeal process.
The Decision to Appeal
Most appeals fail. It is therefore important that counsel for would-be appellants make an educated determination of the merits of an appeal at the outset of the matter. Mr. Peacocke is able to provide objective, researched assessments of lower court and tribunal decisions to assist in the often difficult decision of whether to launch or maintain an appeal.
Mr. Peacocke also has experience in attending trials and significant motions for the purpose of monitoring litigation in anticipation of potential future appeals.
A key component of any appeal is organization. There are time deadlines that must be followed, and printed and/or electronic material must be well organized. The time for oral argument is often limited, and valuable time may be lost if key documents or case law are not readily available. Furthermore, the judges hearing an appeal may become frustrated and distracted from the merits of an argument due to imperfections in the organization and filing of the appeal.
We therefore strive to ensure that every appeal is well-organized for the court and for counsel.
The importance of written advocacy in appeals cannot be overstated. Appellate counsel are required to submit a written "factum" (pl. facta) which outlines the relevant facts, law and argument. Quite often, the justices have an opportunity to review the written material in advance of the appeal hearing. There have been many occasions where the judicial panels hearing appeals have adopted counsel’s arguments as stated in the facta. Furthermore, it is not uncommon for the justices to be more knowledgeable about the facts of the case than counsel themselves!
In short, appeals can be won or lost based solely on counsel's written argument.
It is this firm's goal to put its best foot forward by conducting a thorough review of the facts, undertaking comprehensive legal research, and taking the time to write the most compelling factum possible.
Click here to review a letter from an Ontario lawyer which describes the impact our written argument had upon the Court of Appeal.
Oral advocacy on appeals is a unique art. It differs greatly from trial advocacy. In most appeals, there is little dispute about the facts, and usually few surprises. However, extensive preparation for the appeal hearing is required to ensure counsel have command of the facts and law, and are prepared for difficult questions from the panel. Most appellate justices are very experienced and have a wide knowledge of the law. Counsel cannot “wing it”, and cannot expect to simply read from their factum. Advance preparation and knowledgeable, respectful, persuasive oral advocacy is essential to maximize the chances for success on an appeal.
This firm is able to draw on the expertise of experienced civil litigation counsel with appellate advocacy skills, who are retained on an agency basis, and are selected according to their particular background (e.g. insurance, personal injury, employment, commercial, etc.). Kenneth Peacocke will attend as co-counsel depending on the circumstances.
TIME IS OF THE ESSENCE
In most appeal matters, there are time limits governing the filing of a Notice of Appeal, and further time limits to file documents. It is important that you consider the merits of appealing, and make a decision as soon as possible following the decision in question.
COSTS AND RETAINER
A financial retainer is usually required before we can agree to perform work for you (unless the firm is acting as agent for another law firm). Unfortunately, the nature of an appeal is such that a great deal of the work has to be performed within a relatively short period of time (i.e. a few months) from the decision from which an appeal is sought. Accordingly, a significant proportion of the anticipated full cost of the appeal is required at the outset before services may commence on your behalf.
Every appeal is different, and the cost for appeals will depend upon the issues involved, their complexity, the amount of evidence at the original hearing, etc.. A typical range for the cost of an appeal may be $10,000.00 to $25,000.00 [not including any costs which may be awarded against you if unsuccessful on an appeal]. In fact, a 2005 Survey in Canadian Lawyer magazine indicated an average range for Ontario civil appeals as $8,160 - $60,330, with an average cost of $38,900. Again, however, costs vary according to the circumstances of the case.
We strive to keep the cost of appellate litigation under control, and as opposed to trial matters, the costs for appeals are more predictable. Furthermore, our experience contributes to cost efficiency. That said, however, appeals are expensive and must be taken seriously.
If the appeal is successful, a portion of the costs may be recovered from the opposing party.
If you believe this firm may be of assistance to you, please contact us.
Note: This firm’s services are only available to clients resident in Ontario.