Appellate practice is a specialized area of the law that requires very different skills than trial practice. While trial lawyers must focus on the facts and how they can apply them to fit their theory of the case, appellate attorneys must concentrate on the law and how it was applied or misapplied to the facts presented at trial. Each must also consider their audience. For trial attorneys this is generally a jury and for appellate lawyers it is a panel of three judges on the court of appeals. This blog takes a closer look at appellate practice in Indiana and its key considerations.
The idea that an appeal is a “second chance” to argue a case is a common misconception (Corporate Counsel Business Journal, 2009). The court of appeals can send a case back to the trial court for a new trial, however it must first find reversible error in order to do so. All errors are not reversible. Many are considered to be harmless error, or errors that do not affect the rights of the appellant nor the outcome of the case. Whether an error is reversible or not depends on the standard of review, which is based on the particular issue. The most lenient standard of review, “de novo” is reserved for pure issues of law; either how the law was applied or how it was interpreted. Under this standard, there is no deference to the trial court, and the appellate court decides the issue anew.
Under all other standards, the appellate court will defer to the trial court to some extent. For example, discretionary decisions are reviewed for abuse of discretion. An abuse of discretion will be found when the decision is clearly against the logic and effect of the facts and circumstances before the court (Clary-Ghosh v. Ghosh, No. 22A-PL-1411 (Ind. App. Sep. 18, 2023)). In family law matters, the court grants great latitude and deference to the trial judge, who saw the witnesses in person, and finds an abuse of discretion only where there is no evidence or logical inferences that can be drawn to support the trial court’s finding (Mayer v. Mayer, No. 23A-DC-301 (Ind. App. Sep. 19, 2023)). Most family law issues are reviewed under the abuse of discretion standard. Some issues are reviewed for a clearly erroneous judgment, or one in which the evidence does not support the findings or the findings do not support the judgement (J.R.H. v. Ind. Dep't of Child Servs. (In re S.H.), No. 22A-JT-2587 (Ind. App. Aug. 28, 2023)). When reviewing a case under this standard, the court considers only the evidence and inferences most favorable to the judgment. Even when a different decision could be made, the trial court’s judgment will be upheld if there is any credible evidence to support its findings.
Appellate attorneys sometimes forget the importance of the standard of review. The standard should be used to choose the strongest issue(s) with the most likelihood of success. Each issues entire argument should also be made around the standard of review for that issue (Illinois State Bar Association). The brief should persuade and guide the court to the conclusion being advocated using the same parameters the court will use; the standard of review. The persuasion should begin before the argument is even made, using other sections of the brief to begin telling the client’s story and swaying the reader to believe the client’s version of events and want to rule in their favor. The statement of the case and statement of facts are excellent places to highlight the facts most favorable to the client and minimize the ones most unfavorable. Telling a good story here allows a party to basically argue the case twice; once in the statement of the case and statement of facts and again in the argument (Winning Your Appeal with Your Statement of Facts, 2018). Your facts section should not be argumentative, nor should it cite to any law. It should cite to the record to pinpoint the facts relevant to the issues on appeal, in a clear and concise way (Effective Appellate Advocacy before the Federal Circuit: A Former Law Clerk's Perspective, 2015).
Two final key considerations in appellate practice are the audience and how to effectively persuade it. While the panel consists of three judges, it is important to remember that judges are not experts in all areas of the law, and may know very little about your specific (issues), even if familiar with that area of practice. It is the appellate attorneys job to explain the law, how to apply it to the facts of the case, and what conclusion should then be reached as if explaining it to someone who does not already know. The most persuasive arguments start out telling the court how to get to the right decision, and then describe why the trial court’s decision was wrong (How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers). Afterall, it may be much easier to convince the judges that the trial court is wrong, after you have convinced them that you are right.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.