Should a high-low agreement waive the right to appeal? Waiving the right to appeal, and the finality that this brings, is a potential benefit. However, giving up the right to challenge any error or impropriety in the proceedings has its own risks, including dealing with an overzealous opposing attorney, who may be more willing to push the envelope at trial, knowing that an appeal has been waived. It is at least conceivable that a party might be tempted to take unfair advantage of a no-appeals provision to sway the jury by introducing improper evidence or by making prejudicial statements. Thus, it would be advisable to delineate the issues the parties agree are appealable, such as an appeal arising from evidence entered in violation of an order granting a motion in limine, whether the trial court has made clear error, or waiving appeals as to liability or the constitutionality of the cap placed by Nebraska law on damages in malpractice actions. What about the right to any post-trial motions, such as a motion for a new trial? If post trial motions and the right to appeal are not waived, the agreement should address whether it applies to any second trial granted by way of a successful motion for new trial or appeal. Simply stated, there are any number of ways to address the right to appeal. It can be eliminated completely, it can be retained without limitation, or it can be tailored to waive certain issues while allowing others to be appealed.
Other issues include contributory fault, taxation of costs, and pre- and post-judgment interest. If there is any possibility of the plaintiff being held contributorily negligent, the agreement needs to address how the issue of comparative fault will be treated. Similarly, the issues of taxation of costs and interest should be addressed in the agreement. Typically, a successful party is entitled to costs (which in Nebraska are fairly limited) and post-judgment interest. A provision stating that both parties waive costs and any interest could be included. In the event that some right to appeal is retained, the plaintiff will likely demand post-judgment interest. In the event that the plaintiff is successful on an appeal of a verdict which awarded money damages, the plaintiff will want interest to accumulate on the amount of that verdict.
The agreement should also outline the method by which disputes arising from the agreement itself should be resolved. It could thus include an arbitration clause requiring any dispute arising from the agreement be resolved via an arbitrator or mediator.
Additionally, the agreement should address the possibility of a hung jury. A hung jury is one that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation.
Finally, the possibility of an excess verdict is an important consideration in the context of a medical malpractice action. In the event of an adverse verdict of over $1.75 million, which is the amount of the cap that Nebraska statutes place on an award in a malpractice action, the plaintiff could decide to challenge the constitutionality of the cap. If an appellate court found the cap to be unconstitutional, this could lead to substantial personal exposure for the doctor over and above the limits of the applicable malpractice insurance policy. Obviously, entering into an appropriately tailored high-low agreement that waives or limits the right to appeal would alleviate any such concerns and the risk of personal exposure in the event of a large adverse verdict.