# Question 59: Three Rulings and One Appellate Budget

## Your role

You represent Helix Harbor, the plaintiff in a commercial technology case. Helix won a $2.1 million judgment but lost three separately preserved issues. The board has authorized no more than $150,000 in incremental appellate briefing costs and wants the issues ranked by expected client value, not by doctrinal interest.

## Governing law

Assume the following appellate rules apply:

1. A preserved summary-judgment ruling is reviewed de novo. Reversal restores the dismissed claim for further proceedings; it does not establish liability or damages unless the record permits only one result.

2. Exclusion of expert testimony is reviewed for abuse of discretion. Even an erroneous exclusion warrants reversal only if it probably affected the judgment.

3. A properly preserved jury-instruction error is reviewed de novo, but reversal requires a material likelihood that the instruction affected the verdict. Reversal of a liability instruction vacates the affected judgment and requires a new trial on every issue the instruction infected.

4. An appellate court does not reweigh evidence or substitute a preferred outcome for a supported jury verdict.

5. A claimant evaluating an issue must account for appellate cost, probability of reversal, proceedings required after reversal, probability and amount of recovery on remand, remand cost, and any existing judgment placed at risk.

6. Expected value is calculated from the supplied probabilities only. Do not add a premium for deterrence, precedent, publicity, or counsel's confidence.

7. Multiple independently preserved issues may be included in one appeal, but each carries the stated incremental briefing cost. Helix may omit an issue without waiving the judgment it already won.

8. Appellate counsel's supplied probabilities are planning inputs for this assignment, not predictions to be revised from intuition.

## Facts

The current $2.1 million judgment is collectible and is not affected by Issues A or B. Issue C, if reversed, would vacate that judgment and require a new liability and damages trial.

Appellate counsel supplies the following inputs:

**Issue A, dismissed rebate claim**

* The trial court granted summary judgment against Helix on a statutory rebate claim.
* Review is de novo.
* Probability of appellate reversal: 70 percent.
* If reversed, probability Helix ultimately recovers on remand: 60 percent.
* Recovery if successful: $2,000,000.
* Remand litigation cost, incurred whenever reversal occurs: $300,000.
* Incremental appellate briefing cost: $90,000.

**Issue B, excluded lost-profits expert**

* The court excluded Helix's only lost-profits expert, eliminating that damages claim.
* Review is for abuse of discretion and prejudice.
* Probability of appellate reversal: 35 percent.
* If reversed, probability Helix ultimately recovers on remand: 55 percent.
* Recovery if successful: $4,000,000.
* Remand litigation cost, incurred whenever reversal occurs: $450,000.
* Incremental appellate briefing cost: $60,000.

**Issue C, comparative-fault instruction**

* The jury found gross damages of $3,000,000 but assigned Helix 30 percent fault under an instruction Helix timely objected to, producing the current $2.1 million judgment.
* Review is de novo for error and then for harmfulness.
* Probability of reversal: 60 percent.
* Reversal vacates the entire current judgment and requires a full retrial.
* At retrial, probability Helix wins: 75 percent.
* Expected gross damages if Helix wins: $3,000,000.
* Retrial cost, incurred whenever reversal occurs: $500,000.
* Incremental appellate briefing cost: $50,000.

The defendant has not noticed a cross-appeal and the deadline has passed. Interest on the current judgment and timing differences are excluded from this assignment.

The board chair wants to pursue Issue C because it has the second-highest stated reversal probability and “the jury already gave us three million.” The chief financial officer wants the highest expected incremental value within the $150,000 cap.

## Assignment

Analyze:

* The review standard and reversal consequence for each issue.
* Expected incremental value of Issue A, showing each step.
* Expected incremental value of Issue B, showing each step.
* Expected incremental value of Issue C relative to keeping the existing $2.1 million judgment.
* Why reversal probability alone does or does not determine priority.
* The ranking of all three issues by expected client value.
* Which issues fit within the $150,000 appellate budget.
* The concrete appeal recommendation to the board, including which issue to omit and why.

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