California Attorney Fee Orders: When to Appeal, Defend or Settle

By Audra Ibarra

This article focusing on California attorney fee appeals is a companion piece to an article on Ninth Circuit attorney fee appeals, Ninth Circuit Attorney Fee Awards & De Novo Review, published in 26:1 California Litigation 35 (2013).

You’ve got to know when to hold ’em, know when to fold ’em, know when to walk away and know when to run," Kenny Rogers sang in "The Gambler." Of course, an attorney fee appeal is not gambling per se, but it is high-stakes. To maximize reward and minimize risk, you need to know when to appeal, defend, or settle. The answer, of course, depends largely on your chances of reversal. There is statistically an 18% chance of reversal, but your specific chances depend on many factors, including the facts, law, and standard of review. (Judicial Council of California, 2013 Court Statistics Report, Courts of Appeal, Figure 25.) While relevant facts and applicable law are case-specific, it is helpful to know which standard of review increases the chances of reversal and which issues have been reversed under that standard.

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