Each Indiana appellate proceeding involves its own blend of challenges and varying approaches one might take to those challenges. Because the appellate courts have a very different function than do the trial courts, the strategies used by appellate attorneys vary greatly from those employed by trial attorneys. Appellate proceedings are also vastly unlike trial court proceedings. This difference in procedure creates some common challenges for appellate attorneys. This blog explores common challenges and strategies in Indianapolis appellate proceedings.
The first and possibly the greatest challenge in appellate proceedings is rooted in the both the function and procedure of the appellate court versus that of the trial court. The trial court’s function is to weigh the evidence presented and make a determination based on which specific law or laws apply to the facts that the evidence tends to prove and how exactly the law or laws apply to those facts. Evidence concerning the facts a party wishes the court to consider is presented via the testimony of witnesses and the submission of documents and/or other tangible items as exhibits. The appellate court’s function is not to retry the case, reweigh the evidence presented at trial, or to look for any errors in the trial court proceedings (Corporate Counsel Business Journal). It will not consider new evidence not presented at trial or arguments concerning issues that were not properly preserved for appeal at trial. The appellate courts function more as a checks and balances on both the trial courts and the current state of the law. It reviews cases by reading the trial transcripts, examining the exhibits admitted at trial, going over trial court pleadings and orders, and reading each parties appellate brief, looking at the rules, statutes, and case law referred to in the briefs.
Much unlike a trial court that begins proceedings without favoring either party, the appellate courts usually presume that the trial judge was correct in their rulings and therefore the party appealing a trial judge’s decision(s) starts the appeal with the court favoring the opposing party. So, not only does the attorney for the appellant, the party initiating the appeal, need to convince the appellate court that the trial court committed reversible error, they must do so with the appellate court already believing that the trial court was right and they are wrong. The power of persuasion combined with clear and concise writing is an overall strategy that can be used in any appellate brief. This begins with writing the issue statements and extends throughout the entire brief and should be combined with other common strategies for each section of the brief.
Strategy starts before the writing does, with identifying the issues to be appealed. One accepted approach to choosing the issues for appeal is to minimize the number, keeping it to no more than three. Otherwise, the court may conclude that there is no real reversible error and the brief writer has thus taken the kitchen sink approach. Selection of the issues should be based on which have the strongest argument and the least stringent standard of review. Weak arguments can cause a loss of credibility and dilute or confuse the strongest ones. Once chosen, each issue must be put into a clear and concise issue statement. A common strategy for this is to frame the issue in a way that suggests a favorable answer using sentence structure and choice of language (Georgetown Law). Most often a judge will read the issue statements first so the persuasion should begin immediately.
Perhaps the biggest challenge in Indianapolis appellate proceedings is that a party is “stuck” with what happened in the trial court. Not only can no new evidence be submitted, but only issues property preserved for appeal may be raised. For example, if photographs were submitted as evidence in the trial court and no objection was made to the photos being admitted, a party cannot later argue on appeal that the photographs should have been excluded as evidence. The same is true for any question asked of a witness or answer elicited from one. Trial attorneys who expect that there may be an unfavorable decision leading to appeal may hire an appellate attorney to work with them during the trial to help ensure that all issues are properly raised in the trial court and preserved for appeal.
If you are considering appealing the decision in your case, the knowledgeable and experienced attorneys at Ciyou & Associates, P.C. can you overcome these and other common challenges to get you the best result. 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.
