Statistically speaking, when a case is headed to appeal, it’s preferable to be the attorney for the party that won in the trial court. That’s because appellate courts affirm trial court rulings far more frequently than they reverse them.
Yet, unless an appellate court’s affirmance rate reaches 100 percent — which of course will never happen — it’s far from a risk-free proposition to represent on appeal the party that won below. And the challenge of representing on appeal the party that won below is made all the more daunting by the possibility that even the appellee is capable of committing waiver on appeal.
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