Settling During The Appeal: Factors to Consider

Appealing a trial court decision can make it seem like a case will never end. In reality, however, cases can and often do settle while on appeal. Part of appellate strategy is helping the client understand and navigate settlement at this stage. Gusdorff Law handles state and federal appeals in California. We also provide appellate counseling services to trial litigators to help them develop effective strategies. If you have questions about appeals, let us answer them.

Factors to Consider in Settlement Negotiations

Whether and on what terms to settle are questions that both trial and appellate lawyers have to evaluate. But the answers to these questions, and the factors to consider, differ at both levels. By the time a case reaches the appellate stage, the dynamics of settlement have changed. What may have worked before or during the trial will likely have to be adjusted.

If a notice of appeal has been filed, you’ll want to consider these factors (among others) in potential settlement discussions:


By some estimates, appeals in California can take a minimum of 12 to 18 months. And that’s not counting additional time if the parties decide to appeal to the state or U.S. Supreme Court. Federal appeals could take up to two years. Working with legal counsel, the client needs to weigh these realistic time frames against an offer to settle.


Appeals cost money, a factor that can vary depending on complexity. Generally, the longer an appeal takes, the more money will likely be spent. Depending on the underlying facts, an aggrieved party may also be losing money because of an adverse trial decision. Costs come in many forms and will be weighed during settlement negotiations.


A similar consideration is whether, and to what extent, damages were ordered at the trial level. Even if a party won big at trial, the victory could be fleeting. The California Court of Appeal or Ninth Circuit could ultimately reduce the damages. Therefore, the risk/reward analysis of damages has to be factored into settlement discussions. It may make sense for the parties to exchange a sum certain and be done once and for all.


Time and money may not make a world of difference to one or both parties. A major factor is whether the appellant or respondent wants to set precedent. This is especially important where one or both parties wish to continue with a course of action or forbid one. Seeking clarity through the appellate process may be worth the expense and time.

Other factors to consider include:

  • The odds that either party will ultimately be able to pay damages ordered at trial
  • The risk of reversal and a new trial, further delaying the ultimate outcome
  • Whether the parties are truly on board for the “long haul” or just want the matter to end
  • The relative strength of the parties’ legal stance

Bear in mind that any one of these factors could cut both ways. An appellant may desire to set a precedent, for instance, supporting a particular contract interpretation. However, there’s always the chance that the Court of Appeal may set an unfavorable precedent. Weigh these factors with an experienced appellate attorney so you can make an informed decision.

Advising You and Your Team on All Aspects of California Appeals

Ideally, settlement negotiations will be ongoing from the trial phase. While cases can settle at any point, it’s generally advisable to settle them early. And not just because of the criteria mentioned above. Many appellate judges view their role as not only to settle cases, but to establish law. Although they may be happy to see that the parties resolved their issues, they’d prefer earlier settlements. Court time and resources, after all, could be devoted to more contentious appeals.

If you want to learn more about California appeals and settlements, it’s time to speak with Janet Gusdorff and Gusdorff Law. Contact us today to schedule a consultation.

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