In order to understand the difference between an appellate and a trial lawyer in Indiana, one must first know how the courts are structured, a particular court’s purpose and an attorney’s role in that court. While both appellate and trial lawyers are attorneys authorized to practice law in their state, the experience and skills required for each can be quite different. This blog explores what distinguishes an appellate lawyer from a trial lawyer in Indiana and what role each plays in a case.
Trial lawyers practice in trial courts. Indiana’s trial courts are the city, town, and county courts, where original actions are filed. These courts hold hearings and/or trials where testimony is heard and evidence presented. The judge, or jury in some cases, then makes a decision or determination based on that testimony and evidence. Trial lawyers focus on discovering and developing facts, and then presenting those facts at trial. They do this through motion practice, filing written documents with the court addressing legal issues they wish to resolve before trial; discovery, sending written requests for documents, statements, and admissions; and other trial preparation methods. During trial, a trial lawyer calls and questions witnesses, makes legal objections and arguments, and presents evidence for the court to consider when deciding the case.
While developing a case through motion practice and discovery require reasoning and logic, as well as some writing ability, trial lawyers generally win or lose a case in court where quick thinking and presentation are important. The ability to negotiate and speak eloquently can serve a trial attorney well when endeavoring to reach an agreement before trial or if no agreement can be reached, when attempting to persuade a judge or jury that the facts are on the client’s side. Calling the right witnesses, asking the right questions, and properly presenting the evidence requires a very different set of skills than that which must be possessed by an appellate attorney.
A party who does not agree with the decision of the trial court can appeal the case to the Indiana Court of Appeals. This is when an appellate attorney becomes involved. Very much unlike a trial attorney, an appellate lawyer does not call or question witnesses, gather evidence, or decide what facts to present in court. Appellate attorneys must focus solely on the law, the public policies behind it, and how it should be applied to a specific set of facts. Appellate lawyers file a notice of appeal with both the trial court and the court of appeals, which notifies the courts that the case is being appealed. The notice also asks the clerk to transmit all pleadings and evidence to the appellate court and the court reporter to begin preparing a transcript of any court proceedings requested in the notice (Ind. App. R. 10). Once the clerks record and transcript are complete and filed with the appellate court, the attorney then has 30 days to submit the Appellant’s brief (Ind. App. R. 45). The brief contains the facts of the case, procedural history (everything that was filed with the trial court, all rulings made, and all hearings held), and a legal analysis of the case. The analysis is a logical walk-through of the facts, what law the trial court applied to the facts, how it was applied, and how the court erred in either its choice or application of the law.
Drafting the analysis of a case requires exceptional research skills, so that other cases with the desired logic or outcome can be found and cited in the brief. It is not enough to say that the trial court incorrectly applied a law. The brief must cite to other cases, using the appellate courts logic in those cases, to describe how the law should have been applied to the present case. Ideally, an identical case can be used for this, however, finding even a very similar case may be next to impossible. An appellate lawyer must then possess a high degree of persuasive writing ability in order to use more than one slightly dissimilar case to convince the panel of judges that the desired outcome is the correct outcome.
An appellate attorney is also stuck with what happened in the trial court. Not only can no new evidence be submitted or witnesses called, but issues that were not properly preserved for appeal in the trial court cannot be argued to the court of appeals. Preserving an issue for appeal means that an objection or argument must have been made or the issue raised at trial. For this reason, trial lawyers may get an appellate attorney involved in a case right from the beginning or they may themselves be an experienced appellate attorney. So, while a lawyer can work as both a trial and an appellate attorney, many do not, and it is important that you hire a trial lawyer for trial and an appellate lawyer for an appeal.
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.
