In an appeal, a party who is dissatisfied with the ruling of a court can ask a higher court to second-guess the decision of the lower court. One of three outcomes is possible: the circuit court either confirms the lower court’s judgment, reverses it, or remands it (sends it back for a new trial with instructions to the trial court). 

Civil appeals, such as personal injury judgments, differ from criminal appeals, and Louisiana applies its own rules to the appeals process.

Grounds for Appeal

You need at least one ground to appeal. Popular grounds for appeal include assertions that the trial court:

  • Improperly excluded critical evidence;
  • Barred testimony from a qualified expert witness;
  • Issued inappropriate instructions to the jury;
  • Reached a decision that no reasonable jury could possibly reach;
  • Inappropriately granted a motion for summary judgment; or
  • Compromised the judicial process with some form of corruption, such as jury tampering.

Depending on the circumstances, you might have many more grounds for appeal available to you.


You cannot introduce any new evidence in an appeal; the circuit court will not consider it. However, if the circuit court remands your case back to the trial court “for further proceedings,” you might be able to introduce new evidence.

The Burden of Proof

In a civil trial, the burden of proof is on the plaintiff (the injury victim) in most cases. In an appeal, by contrast, the burden of proof is on the party who appeals, whether that party is the plaintiff or the defendant. 

The Standard of Review

The standard of review on an appeal is a concept similar to the concept of “burden of proof” that applies at the trial level. At trial, however, you need to convince the court of your claim by a “preponderance of the evidence” (a greater than 50% likelihood that your version of events is true). A circuit court applies different standards, however, when it reviews the decision of a trial court during a civil appeal. 

The circuit court does not hear the testimony of witnesses. All it has to go on is the trial transcript. Consequently, it is not in as good a position as the trial court is to assess the believability of witness testimony. For this reason and others, a circuit court grants the trial court quite a bit of deference in an appeal. 

In other words, it is difficult to convince a circuit court to question the decision of a trial court on issues of fact. The appeals court, however, is just as qualified as the trial court to determine issues of law. Consequently, an appeals court is far more willing to consider whether the trial court erred in its application of the law.  

The “Reasonable Basis” Test

Under the reasonable basis test, the circuit court will affirm the judgment of the trial court unless the trial court lacked a reasonable basis for its findings of fact (as opposed to its findings of law). 

An example of a finding of fact would be a finding that the defendant was out of state on the date of the accident in question. The appeals court might rule that the trial judge had a reasonable basis for its finding of fact, even if the appeals court disagrees with it. 

Another way of putting it is to say that the appeals court must affirm the trial court’s ruling unless it is “manifestly erroneous.” If the trial court had a reasonable basis for its finding, even a conclusion that the trial court disagrees with, then its finding is not manifestly erroneous.

The Abuse of Discretion Test

The “abuse of discretion” test applies when the trial court exercised some discretion in making its decision. This might apply, for example, where the court awarded punitive damages. A trial court exercises discretion in determining the exact amount. The appeals court will usually affirm the trial court’s decision even if it disagrees with it–but not always. 

Suppose, for example, that a court awarded a victim $15,000 in economic damages and $30,000,000 in punitive damages. The appeals court might refuse to affirm the verdict on the ground that the trial court abused its discretion by awarding too much in punitive damages.

Devolutive vs. Suspensive Appeals

In a devolutive appeal, the judgment is still valid pending the appeal. Interest continues to accumulate on the amount of the judgment, and the injury victim can still seek to enforce the trial court’s judgment. In a suspensive appeal, the execution of the judgment is suspended until the appeal is resolved. 

To gain the advantages of a suspensive appeal, you need to pay the court a bond equal to 150% of the amount of the judgment. Typically it is the defendant who seeks a suspensive appeal. If the court grants one, the plaintiff cannot seek to enforce the trial court’s judgment while the appeal is pending.

What Can You Appeal?

You can appeal the following types of decisions by the trial court:

  • A final judgment. 
  • A partial judgment that the trial court designates as final. 
  • A judgment reformed in connection with an additur or remittitur
  • An interlocutory judgment made expressly appealable by law. An interlocutory judgment is a decision made in the midst of trial. An example might be refusing to admit a certain item of evidence.  

Talk to a lawyer about this, because the law on this issue can be quite confusing.

Appeal Procedure

To file an appeal, take the following steps:

  1. File a Notice of Appeal with the appropriate circuit court. You have 30 days to file an appeal if you want the appeal to be suspensive. You have 60 days to file an appeal if your appeal is devolutive. 
  2. Prepare the Record on Appeal. The record on appeal includes all documents and transcripts from the trial court that are relevant to the issues that the appeal raises.
  3. File a written brief containing your arguments. This is normally a job for a lawyer.
  4. Present your oral argument: Courts schedule oral arguments only some of the time.
  5. Wait for the court’s decision.

Once the court issues its decision, your case is over, unless the court sends your case back to the trial court for a new trial.

Settlement Negotiations During an Appeal

Settlement negotiations can continue while an appeal is pending–in fact, circuit courts typically encourage this because settlements reduce the size of their busy dockets. Uncertainty is your leverage during settlement negotiations. The less certain the other side is of victory on appeal, the more room you have to negotiate. 

Further Appeal

If you are dissatisfied with the decision of the circuit court, you can appeal to the Louisiana Supreme Court. The Louisiana Supreme Court has no obligation to hear your appeal – it is discretionary. Because of the large volume of appeals, your odds of successfully appealing to the Louisiana Supreme Court are low. If there is a federal issue involved, you might be able to appeal your case to a federal court.  

Special Case: Small Claims Court

You can file claims of up to $5,000 in Small Claims Court, although you don’t have to use Small Claims Court to resolve such a claim. You cannot appeal a Small Claims Court judgment. The defendant, however, can transfer the case to the civil court system (with a right to appeal) within 10 days of receiving notification of the lawsuit.    

Don’t Try To Represent Yourself for an Appeal

When it comes to appeals, there are a thousand ways to get it wrong and only one way to get it right. That alone is a good reason to seek a lawyer’s help. 

The second reason you need a lawyer is that appeals are hard to win; courts don’t like to second-guess each other. The third reason is that the grounds for appeal are often based on issues of law, which require a legal education to understand. 

Contact a Lafayette personal injury lawyer at Kenny Habetz Injury Law for your appeal. Call us today at (337) 399-9000.