It is worth noting the standard of review for jury trial verdicts in most appeals courts. The following is from the DC Court of Appeals, but most states follow a similar position: when the jury decides an issue of fact, the appeals court cannot change it unless there is absolutely no evidence to support the jury finding.

(a) In considering an order or judgment of a lower court (or any of its divisions or branches) brought before it for review, the District of Columbia Court of Appeals shall review the record on appeal. When the issues of fact were tried by jury, the court shall review the case only as to matters of law. When the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it. D.C. Code §17–305 (2016).

“As an appellate court we have no power to retry factual issues; our authority is restricted to a review for errors of law.” District of Columbia v. Harris, 770 A.2d 82, 89 (D.C. 2001) citing to Sachs v. Eller, 89 A.2d 644, 645 (D.C. 1952).

Notwithstanding 17-305, the Court of Appeals will not disturb a jury’s verdict if there is “any substantial evidence which will support the conclusion reached.” Boynton v. Lopez, 473 A.2d 375, 376 (D.C. 1984). “Substantial evidence repeatedly has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reese v. Newman, 2016 D.C. App. LEXIS 36 (D.C. Feb. 11, 2016) citing to Wheeler v. District of Columbia Bd. of Zoning Adjustment, 395 A.2d 85, 89 (D.C. 1978).

When no jury is present, the Appeals Court can entertain an argument that the facts were improperly considered by the trial court, however, the review is generally at the “abuse of discretion” level, and is often hard to overturn. Note, though, that as a strategy matter, bench trials can have the facts reviewed, where jury trials rarely, if ever, do.

Also, be careful of filing an appeal at all — on the defensive, as the appellee, you have no choice but to respond; however, as the appellant, if you file foolishly, you will have to pay the court fees, appendix costs, and other attorney fees if you lose. This should always be a salient consideration when attacking facts in an appeal.

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