Yesterday a federal judge ruled against Texas regarding the border barrier they'd erected in the Rio Grande river. Governor Abbott said he'll appeal up to the Supreme Court if necessary.

A few months ago there were two court rulings regarding the abortion drug mifeprestone; one ruling was in favor of prescribing the drug, the other rolled back parts of its approval. The losers in both cases said they'll appeal. The ruling that changes the status quo is currently on hold until SCOTUS weighs in.

Whenever Donald Trump loses court cases (he's been involved in many in recent years), he vows to appeal, again all the way to SCOTUS.

Other than the expected legal costs, is there any reason why the loser in a lawsuit shouldn't appeal? The worst that can happen is that they lose again, right? Can there be additional punishment due to frivolous appeals? If the court awarded them to pay damages, could the appeals court increase them?

  • Aside from any legal downsides, there are social implications, especially if the issue the case was about is a particularly divisive one. For example, the whole Rio Grande debacle is making Gov. Abbot look like a stubborn fool to a lot of people. Commented Sep 8, 2023 at 11:05
  • 2
    @AustinHemmelgarn To some people, to others it looks like someone determined to do what he thinks is right for Texas. Kind of like the different attitudes towards people who still promulgate the Big Lie.
    – Barmar
    Commented Sep 8, 2023 at 15:13

3 Answers 3


The main downsides of appealing are:

  1. If you want to postpone collection of a money judgment against you while the appeal is pending, you have to post a bond sufficient to pay the judgment in full with interest and the other side's out of pocket costs if you lose on appeal. This makes collection of the judgment much easier if the judgment is affirmed on appeal.

  2. You have to pay for transcripts of the trial court proceeding and your attorneys' fees on appeal. Transcripts are typically in the single digit to double digit thousands of dollars. The attorneys fees for an appeal typically range from $20,000 to $120,000 for one level of appeals.

  3. Sometimes you have to pay the other side's cost and/or attorney fees on appeal, under circumstances that are quite varied and not easily summarized in a single answer.

  4. If the case is encumbering real estate, the real estate stays encumbered until the case is finally decided.

  5. If you appeal, the other side might cross-appeal in that case on issues you won at trial, when they otherwise might have left sleeping dogs lie on that issue.

  6. An appeal can postpone the finality of the decision in the trial court, which will often hold up other business or governmental decisions that the person making the appeal can only decide when the case is final.

When the person appealing is a government, collection and litigation costs are often effectively irrelevant. This is also true for a wealthy person in a high stakes case. All of the examples identified in the question fit in one of these two categories.

  • 1
    2 and 3 fall into "Except for legal costs" in the question. But the other points are interesting. #5 is a way that things could get worse due to the appeal.
    – Barmar
    Commented Sep 7, 2023 at 17:23
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    @Barmar FWIW, #5 is more true in civil case appeals than in appeals of criminal convictions (acquittals can't be appealed). There are significant constitutional limitations on the extent to which a convicted criminal can be worse off than he was in the trial court due to an appeal.
    – ohwilleke
    Commented Sep 7, 2023 at 18:58
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    @IllusiveBrian The main limitations comes from North Carolina v. Pearce, 395 U.S. 711, 724 (1969) where SCOTUS established a constitutional limitations on imposing a more severe punishment after conviction for the same offense in a new trial. It held that penalizing a defendant for having successfully pursued a right of appeal or collateral attack (with a longer sentences than the original conviction's sentence) violates due process. Id. at 724. But Alabama v. Smith, 490 U.S. 794, 801-02 (1989) held that this does not apply if the original sentence was entered after a guilty plea.
    – ohwilleke
    Commented Sep 7, 2023 at 20:03
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    @ohwilleke -- yup, missed that. Trump splatters everywhere.
    – PJB
    Commented Sep 8, 2023 at 17:24
  • 3
    Also note that "taking it all the way to the Supreme Court" is very often an empty gesture, as the Court generally isn't obligated to take cases. Commented Sep 8, 2023 at 20:51

Institutional and public-interest litigants may decline to appeal an adverse decision for strategic reasons, including:

  • waiting for another lower court to potentially decide in their favour on the legal issue in a different case, or
  • waiting for a case with what they estimate to contain a more sympathetic fact pattern for their position

The litigant may estimate that appealing the first adverse decision, where it is not an ideal case for the litigant's long-term goals, will risk generating bad controlling appellate precedent — new legal tests developed in the context of "bad" facts can result in "bad" law (from the perspective of the litigant).

  • 1
    Good points that I omitted.
    – ohwilleke
    Commented Sep 8, 2023 at 16:16

In a comment above, ohwilleke points out, "Some of the cases Trump has appealed are criminal cases."

This answer addresses a reason that a state may choose not to appeal a criminal case that has been dismissed.

A state can choose not to appeal a dismissal of a criminal case in a local court in which a state law was found to be unconstitutional as applied, but which, being the lowest court, does not establish binding precedent for future cases in that state. The state may fear that, if appealed, a higher court could sustain the decision and find the law unconstitutional on its face, which could establish binding precedent, overturn a longstanding statute and call into question numerous past convictions under said law.

We have a recent example. Mr. Dean Donnell, a resident of New Hampshire with a New Hampshire license to carry a concealed weapon, was discovered during a routine traffic stop in neighboring Massachusetts to be in possession of a firearm in violation of Massachusetts G.L. 269 §10(a), and was arrested on felony charges. This statute makes it unlawful for any person in Massachusetts to carry a concealed firearm outside of their home unless the person holds a valid Massachusetts License to Carry a firearm (LTC). Massachusetts currently issues LTCs to both residents and non-residents, but does not recognize LTCs or permits to carry a concealed weapon (CCW) issued by any other state. Mr. Donnell had a New Hampshire CCW permit but did not have a Massachusetts LTC.

On August 3, 2023, Judge John F. Coffey of the Lowell, MA District Court, in Case No. 2211CR2835 (pdf) ruled that Massachusetts G.L. 269 §10(a), is unconstitutional as applied in this case in light of the recent U.S. Supreme Court case NYSRPA v Bruen.

The judge writes in his conclusion,

A law-abiding resident of New Hampshire who is exercising his Constitutional right should not become a felon by exercising that right while he is traveling through Massachusetts merely because he has not obtained a Massachusetts license to carry . . . . This Court can think of no other constitutional right which a person loses simply by traveling beyond his home state’s border into another state continuing to exercise that right and instantaneously becomes a felon subject to mandatory minimum sentencing of incarceration. . . . An individual only loses a constitutional right if he commits an offense or is or has been engaged in certain behavior that is covered by 18 USC section 922. He doesn’t lose that right simply by traveling into an adjoining state whose statute mandates that residents of that state obtain a license prior to exercising their constitutional right. To hold otherwise would inexplicably treat Second Amendment rights differently than other individually held rights.

By Massachusetts tradition, appeals on adverse rulings in criminal matters in the lower courts may only be advanced through the Attorney General’s office. Thus far, that office is silent on the question of appealing judge Coffey's decision. It is notable that this may be the very first criminal case nationwide in which a judge ruled that, in light of NYSRPA v Bruen, a state must recognize a defendant’s LTC or CCW issued by another state.

So the Massachusetts Attorney General can either decide to let this one go or risk the eventual overturn of at least some aspects of Massachusetts gun law, potentially requiring Massachusetts to recognize all out-of-state CCW permits carried by non-residents, and if appealed further to Federal courts and the Supreme Court, it could conceivably lead to nationwide universal CCW reciprocity between the states. I’m sure the Massachusetts AG doesn’t want that on her resume.

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