When parties invest a lot of time, energy, and resources in trying their case before the court, oftentimes there are winners and losers. Moreover, even though judges try their best to accurately interpret the law and arrive at the right outcome, sometimes they get it wrong. So, it’s not surprising when one party decides to appeal the judgment of the court.
- What kinds of appellate cases do you deal with?
- What does post-judgment mean?
- What’s in the judge’s discretion to decide, and how do you appeal that?
- What is the difference between a re-trial and an appeal?
- As an appellate attorney, what are the most common mistakes made by trial attorneys or by judges?
- What is some good advice for how to avoid an appeal?
- What advice do you have when the ballot comes around for electing judges?
- If somebody is embroiled in litigation, what message of hope would you have for them?
What kinds of appellate cases do you deal with?
01:15
Liisa Speaker
Our firm specializes in family law appeals, which also include child welfare cases and adoption appeals. But within the family law realm, we get a lot of post-judgment custody cases.
We do have a lot of other kinds of family law appeals, but it seems like the post-judgment cases are the ones that actually get litigated more because they aren’t able to settle like they were earlier in the case.
What does post-judgment mean?
01:49
Liisa Speaker
Imagine a husband and wife getting divorced. Often, they’re able to come up with a settlement for spousal support and parenting time with the children on their own, so it doesn’t go to litigation. There’s no need for a decision to be made by a judge.
Now, fast-forward 3, 5, or 6 years later, and imagine their situation is changing. One of them wants to move to another state, or perhaps one has changed jobs. Sometimes, they’ve remarried, or the kids are getting older and getting involved in sports, etc. Basically, the “normal” events of life and human development bring about change, and in relation to this evolution, one (or both) of the parties wants to alter the custody agreement, increase parenting time or otherwise change the status quo. These changes often bring about post-judgment, usually in the form of a motion to modify custody.
These are the cases most likely to be litigated because, at this point, people have become entrenched in their individual lives and in their own separate worlds. Often, when you have these two ingrained, separate worlds, people are not as willing to come to the table to arrive at an agreement that’s in the best interest of the children. So, they end up going to court and having a judge decide what the custody situation should be.
Jennifer
Something that’s common in Texas family courts here, and I’m sure is the same in Michigan, is when a parent wants to move away with the kids, and it’s difficult to arrive at a happy medium.
Liisa Speaker
In Michigan, when both parents have legal custody, you have to convince the court that a change of domicile is appropriate, and there’s a special test that you go through. It’s very similar in Texas.
I have two cases right now where a mother wants to move from Michigan to Texas, and in each of these cases, the mothers have jobs in Texas. So, Mom, as the primary caretaker, wants to move to improve her life, but the judge says “No.” Now we have to appeal that decision to give that parent a chance to improve the family’s life and financial wellbeing. But it’s difficult for the parent that’s being left behind, too, especially if that parent was actively involved.
Now, there are a lot of cases where that ex-spouse wasn’t really exercising parenting time, and they’re not involved with their family until the day that their ex-wife or the mother of their child says, “Hey, I want to move with our child across the country.”
Then they’re like, “Oh, I better start taking this seriously.” Either way, there are repercussions on both sides.
What’s at the judge’s discretion to decide? And how do you appeal that?
05:10
Liisa Speaker
There are two basic things that a judge decides.
- They decide how to apply the law.
- They decide what the facts are.
Sometimes, if you have a jury or a judge, they’re the ones that get to decide what the truth is, but then we have the law, and the law is more or less black and white. So, often, what we see on appeal is a parent coming to us to say, “Hey, I got this result but I’m not happy with it. I was the primary caregiver or the sole legal and physical custodian, but now this person who wasn’t really involved with our child’s life has sole physical and legal custody.” They’re completely distraught because the children they once spent all their time with are hardly with them anymore. The whole schedule flips.
At the outset, we don’t know whether it’s a legal or factual mistake, so we start digging into what happened. Factual mistakes are hard to appeal. If the judge didn’t believe your witnesses or didn’t find them credible, that’s a difficult ruling to appeal because the trial judge gets to decide whether the witnesses are telling the truth or not.
Usually, when we have success on appeal, it’s because a judge did not follow the law or misapplied it in some way. For example, for a post-judgment modification of custody, there’s a series of steps you must go through. You can’t just rip a kid out of the only custodial environment they’re familiar with and change it overnight on a whim.
One process is that of material substantial change. If the judge skips that step, that could be a legal error. There are also best interest factors. Sometimes mistakes happen because the judge doesn’t know the law, or they don’t take the time to figure it out. Other times it’s a unique factual scenario; it’s not cut and dry and takes some explaining. Also, if someone doesn’t have an attorney on the case who is able to articulate what the standard should be, it’s easier for the judges to make mistakes.
What is the difference between a re-trial and an appeal?
08:00
Liisa Speaker
They are significantly different.
For instance, you have an audience of three appellate judges on appeal, and in the trial court, you have one judge who hears the case and decides the facts and how to apply the law.
On appeal, we’re stuck with the “record” that was created in the trial court. So, what often happens is an individual will call us and say, “My attorney didn’t present this evidence, or there are more things that have happened in the five days since the judgment was entered.” Well, none of that is part of the record, and we can’t talk about it on appeal unless it was presented to the trial judge.
On appeal you’re arguing that the trial judge made a mistake. So, if the trial judge did not know about this, let’s say…stack of documents, how can you say the trial judge made a mistake in not considering documents? During an appeal, everything has to be within the record and the testimony that was presented so it’s clearly based on the trial judge’s errors.
Jennifer
For purposes of clarity, when we say, “on the record,” there’s a court reporter taking down the testimony, the arguments, the objections, the court’s rulings, etc. And it’s all contained in a transcript. If you’re going to take your case up on appeal, or you wonder if you have a case, you have to get the transcript.
Liisa Speaker
In addition to the transcripts, there are the exhibits that were admitted at trial, too.
Just the cost of getting the court transcripts can be a heavy burden. We’ve had cases where there were over 20 days at trial. That’s going to produce 8,000-10,000 transcripts, which doesn’t include the time it’s going to take to review all of those transcripts to figure out what the trial court did or how they misapplied the law or made an error in fact finding.
Sometimes we also argue that the trial court’s ultimate decision was against the great weight of the evidence. Those are hard appeals, but we have done them, and we’ve won some.
Jennifer
The cost of an appeal is really important for people to understand.
Liisa Speaker
We have people that will call us complaining about financial decisions. For example, let’s say the judge assessed sanctions, and a parent has to pay $5,000 in costs to the other side. Well, it’s most likely much cheaper just to write that check than to try to appeal it because it’s going to cost more to fight it. You don’t want to have a client who appeals just on principle because we’re talking about a family here, and litigation and appeals are disruptive.
But when it comes to children, the viewpoint changes because people are fighting to have relationships with their children, and sometimes an appeal is their only hope to regain that relationship with their children.
Jennifer
I think what you’re touching on is one of the things that you and I share in common, which is a commitment to our role to be a counselor and advisor to our clients. It’s easy to take their money and to put a fight together, but you have to look at the whole family dynamic and the lives being wrapped up in litigation and the appeals process. It’s not just money…it’s also time that you don’t get back.
Liisa Speaker
A lot of times the clients have been living it, and it’s hard for them to see the forest for the trees. We have to make recommendations once the client hires us, and maybe we have to order the transcripts to be able to figure out what actually happened. But we have had many instances where we’ve said, “This appeal isn’t going to be worth it because there’s no way you’re going to win, or the chances of winning are so slim.”
Jennifer
14:08
Right, but it’s important to understand that the appellate process is a really important check in our legal system to make sure that judges are following the law. Sometimes people think it’s all up to the judge’s discretion and that it’s important to get the judge to like you so that the judge rules in your favor.
As an appellate attorney, what are the most common mistakes made by trial attorneys or by judges?
14:48
Liisa Speaker
From the judge’s perspective, the mistakes we see are failure to make fact findings. They hear all this evidence, but then they kind of forget to go through the statute step by step and make findings to support their decision.
They should go through the statute and say, “Yeah, I think this parent or that parent should have sole custody,” but if they don’t actually make specific findings under each element of the statute, they’re more likely to have made a mistake. This isn’t always the case. Maybe the judge’s decision is perfect, but if they don’t have fact findings, there’s a chance to get it reversed. The court of appeals can’t guess what the judge was thinking. So, they can’t just assume the judge was doing the right thing.
As for the attorneys, there’s a wide variety of attorneys with varying levels of experience, but it’s simpler to talk about this in terms of two types of lawyers. The first type is highly competent, and they don’t think they know everything. They’re willing to ask questions during the process. They want to be sure they get it right.
And then there’s the type of attorney that doesn’t file the motions that they need to file. They fail to make the objections that they needed to make. When the judge is starting to plow ahead without making findings, they don’t attempt to stop the judge.
Jennifer
That’s really important. I know when we’re going into trial, we always consult with an appellate attorney to make sure we’ve fleshed out the questions of law, and having an appellate attorney be part of your team is important.
Ultimately, you don’t want to be stuck in an appeal.
What good advice will help to avoid getting into litigation and the appeal process?
18:38
Liisa Speaker
Start thinking about it very early, have an open mind, and be reasonable about a settlement. The problem we see in a lot of our cases is that one party is very unreasonable.
When family law cases go to trial, there’s always going to be somebody who’s unhappy. Sometimes both sides are unhappy, and they both end up appealing. Usually, if both sides are unhappy, they just chalk it up and move on. When one party loses everything and the other party gains everything, though, it feels like there’s no choice but to appeal.
There are also cases that go to trial where there’s something going on between the parties, and the judge knows it. They know there’s an issue, but guess wrong about which party is causing the problem. I don’t mean to imply it’s always the other side. We have clients that have issues with mental health and self-control. There are clients who make bad decisions about how they’re raising the children or how they’re interacting with the other parent. A vital way to avoid litigation is to think about how you’re interacting with the other side.
Jennifer
You’re right. It’s so important for people to be aware of the emotions that they’re feeling and cognizant of the impact they’re having.
Liisa Speaker
I’m not saying this in a negative way: some parents need to explore therapy to help them understand their feelings and their frustrations with having to co-parent with an ex-spouse. It was not their plan, and now they’re being forced to run everything by this person with whom they have a lot of issues. There’s all this negative history and hurt feelings.
Jennifer
It’s one of the things that makes family law challenging. We’re dealing with people at a very raw time, and I always feel like it’s my job to help them see the big picture and reclaim the vision for their lives.
Liisa Speaker
And it’s not just “feelings.” There are parents who are victims of domestic violence, yet they’re being put in a position where they have to deal with their abuser on a regular basis because they have to do parenting-time exchanges and make decisions together.
Jennifer
It’s an important point.
The great thing about the legal system is that we have a process to bring resolution. If parties cannot find that resolution themselves, then we have the judge to make the decisions for you. One of the things that I always talk about with my clients is the fact that when you take those issues to court, you are asking somebody who doesn’t know your family to be the decision maker and provide closure. But we’re talking about a judge that makes the wrong decision, which is where an appellate advocate like Liisa comes in.
This is why it’s important to know the judges where you’re practicing. Here in Texas, we elect them, which is also the case in many other states.
What advice do you have when the ballot comes around for electing judges?
24:08
Liisa Speaker
There are two different items here: the election of judges and knowing your judges.
So, first of all, parents don’t have a choice on who their judge will be. They don’t get to decide that. However, once the judge has been assigned, knowing their weakness and strengths will be helpful. For example, if the judge was an experienced family law attorney before arriving at the bench, that provides some comfort that they’ll at least try to understand the law and apply it correctly. But not everybody that gets on the family law bench has that background. Maybe they’re learning it for the first time. There are some issues with that.
Furthermore, knowing the judge’s personality and demeanor helps. It informs you about
how you should behave in court because one judge might react a certain way to certain people.
Now, as far as the election of judges, that’s a very interesting topic. In my experience, it feels like the regular folk don’t know who any of the judges are, and I get it. Usually, only the attorneys know who the judges are unless you’re one of those unfortunate people who’s had a litigated case. That’s a very small group of people who will be active to vote for, or against, a judge.
And it’s not just about whether that judge agreed or disagreed with you in a hearing. It’s also about how they treat people in their courtroom. Some judges are not very kind, and other judges are very professional. But as far as elections go, most regular people don’t know who the judges are or how they conduct themselves in the courtroom.
Jennifer
What about party affiliation?
Liisa Speaker
In Michigan we don’t have party affiliation for our judges. The differences that matter for a voter might be gender, or whether they’re the incumbent, but that’s not really making an informed decision, right?
I think my recommendation would be to try to make an informed decision because these judges are really important, and they’re going to affect a lot of lives.
If somebody is embroiled in family law litigation, what message of hope would you have for them?
26:45
Liisa Speaker
My hope for a client involved in the appeals process is always that a judge will see the case accurately. Obviously, most of the time I feel that’s my client’s position, but not always. Sometimes, we appeal, and we don’t think our position is as strong as other cases. However, when you’ve seen a real injustice—and my book has plenty of examples where custody was taken away inappropriately without following the law—you want to give clients hope that you’re an attorney who’s going to keep fighting for them and who’s going to keep working to keep their family together.
There’s some irony in being an appellate attorney. For example, I talk to new clients who have factual issues or legal issues, and I get excited about our chances of winning. Unfortunately, though, our chances of winning are tied to the failure of a judge to follow or rightly apply the law. That’s why I wrote the book. Sure, I love winning cases; there’s a real high off of that experience. But I’m winning and have stories to share because of erroneous decisions made by judges which can take a year or two to rectify and which can impact a child for the rest of their life.
So, my mission is to get judges to follow the law. We owe it to our families.
Jennifer
That’s exactly right. Thank you so much, Liisa Speaker, for your dedication to making sure that justice is served—especially for those people who need it most, like our children.
Dallas Child Custody Resources
- What Are Temporary Orders?
- Divorce Negotiation Strategies (Podcast)
- Divorce Mediation – Settle Before Trial
- Helping Families Avoid Prolonged Conflict
- Collaborative Divorce Helps Protect What Matters
- High‑Conflict Personalities – Bill Eddy
- BIFF Communication Method
- Find a Dallas Divorce Lawyer
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