propriate jurisdiction decided similar
facts in a different way, that precedent
decision may influence the Court of Appeals to find in the same way as the previous appellate decision. Or, it may decide
to reverse the prior decision and make a
The appellate system
There are hundreds of jurisdictions and
appellate courts in various layers. In some
states appellate decisions may differ depending on the division or district. States
like California or New York can have differing decisions between appellate districts. What may be true in Fresno may be
entirely different in San Diego, and a few
states may only have one appellate level
above the trial court.
An appellate court (and a state or the
U.S. Supreme Court) may elect to hear an
appeal or decline it. If it declines, then the
lower court’s decision stands. If it hears
the case, then both sides present their
well-documented briefs showing why the
trial court erred or did not err.
Emphasis is placed on prior decisions
involving similar facts from the same district or state, but cases from other states
showing how other courts have considered such facts can also influence appellate justices, along with references to any
statutory factors such as Restatement of
Torts, Second; the state’s Insurance Code
or other legislative decisions; and rules
of discovery. Appellate courts often look
at a case in light of what the state’s legislature or Congress intended in a statute.
This has often occurred in underinsured
motorist claims. Next month we will continue our look at appellate courts.
Ken Brownlee, CPCU, is a former
adjuster and risk manager based
in Atlanta, Ga. He now authors and
edits claims-adjusting textbooks.
THE DEFENDANT’S PSALM
© Claims Magazine, 1991
An Attorney is my defender, I may yet lose the case.
He maketh me to answer long interrogatories;
He leadeth me to interminable depositions;
He disputeth the venue.
He taketh me down the path toward bankruptcy
For his firm’s sake.
Yea, though I walk up the courthouse steps
In the shadow of the jury
I shall fear no evil, for thou, my lawyer, art with me:
Thy brief and thy motion to dismiss doth comfort me.
Thou preparest a trial before me in the presence of the plaintiff’s attorney;
Thou anointest my witnesses with questions;
Their testimony runneth over.
Surely judgments and verdicts will follow me all the days of my life,
And I shall dwell in the house of the bewildered forever.
Last month we explored how liti- gation affects claims and why it is the adjuster who manages the claim file and litigation, deciding
when to settle and when to fight, knowing
that court fights are expensive. Adjusters must make correct decisions based
on the law in the jurisdiction where the
claim occurred — and within the terms
of the policy contract. But that “law” is
generally not statutory law passed by the
legislature, but rather the doctrines and
legal principles determined by courts in
How does one know what the law is unless a review is made of every prior applicable case in that jurisdiction to see what
was decided? Adjusters must keep current
on what their courts are determining; that
is part of continuing education. Most
claims involve tort law — not statutory
law — and are subject to legal theories
and doctrines established by earlier court
decisions, although a future court may
reverse those decisions. What happens at
the “trial court” level is subject to change.
The loser in a trial may ask the judge
for a “directed verdict notwithstanding
judgment,” request a re-trial, or suggest
jury error. If jurors were “caught napping”
during testimony, it may be grounds for a
mistrial. There is the right of appeal. Appeals are the reason a court reporter takes
down every word and grunt made by everyone testifying. Once an appeal is filed,
then the case is transferred to an appellate attorney for review. The appeal will
involve many billable hours of detailed
research. Appellate attorneys work from
the file material provided at trial from
both the plaintiff and defense.
Generally, no ne w investigation occurs.
Rather, what the appellate attorney will
seek is stare decisis (the doctrine of precedent). If any appellate court in the ap-
and Court Decisions — Part 3
Dwelling in the House of the Bewildered