A party unhappy with the outcome of litigation has the right to appeal the determination to one of Indiana’s appellate courts. The right of appeal, however, does not always mean that one should appeal. Financial as well as legal issues should be considered whenever making a decision whether or not to take an appeal. This blog discusses when and why you should consider appeals in Indianapolis.
The most common type of appeal is one taken from a final judgment or order which disposes all of the issues or claims in the case (Ind. App. R 2(H)(1)). This is the type of appeal frequently referred to as an “appeal of right” because the law affords every litigant a right to appeal a final judgment (Indiana Judicial Branch). One other type of appeal, called in interlocutory appeal is recognized in Indianapolis. This type of appeal may be taken from an order or judgment which is not final and is not always available as an appeal of right. An interlocutory appeal of right can be taken when an order that is not final involves the payment of money, the sale or delivery of possession of real property, a preliminary injunction, the appointment or revocation of appointment of a receiver, transfer of a case under Trial Rule 75, a writ of habeas corpus not authorized to be transferred to the supreme court, compels the execution of a document or delivery or assignment of any securities, evidence of debt, documents or things in action, or that is issued by an administrative agency that by statute is expressly required to be appealed as a mandatory interlocutory appeal (Ind. App. R 14(A)).
Either type of appeal, from a final judgement or an interlocutory order, should be taken only after all financial and legal considerations have been examined and appealing the decision makes more sense than not appealing it. The first fee, other than attorney fees, involved in an appeal is the filing fee of $250 that must be paid to the appellate court upon filing of the notice of appeal (Ind. App. R 9(E)). The notice of appeal will request that the court reporter prepare a transcript of any necessary hearings or trial dates and file the transcript with the appellate court within 45 days of receiving the notice (Ind. App. R. 11(B)). Court reporters charge an hourly or per page fee for this service so the length of the hearing or trial dates to be transcribed will affect the total cost of the transcripts. The hourly or per page fee charged for transcription is set by local rule and in Indianapolis is charged at $4.50 per page. Once the filing and transcript fees have been estimated, and the addition of attorney fees determined to be no reason not to appeal, then you should contact some appellate attorneys and arrange for consultations in order to obtain a better estimate on the total attorney fees expected and an overview of the legal considerations involved in an appeal.
As previously noted, not all cases that can be appealed should be. An appeal is not a second chance, as it is commonly believed to be. Appellate courts do not retry cases, hear testimony, or allow new evidence (Court of Appeals of Indiana). They instead review the transcript of the testimony, the exhibits admitted to the trial court, read each parties arguments, submitted in the form of a written brief, and then decide if the trial court made an error in its choice of law or application thereof, which requires reversal of its final decision in the matter. Not all errors are reversible and depending on the issue being appealed, the standard of review used by the appellate court may dictate that there was no error at all, even when it appears as if there were. Standards of review can be placed into three different categories: questions of fact, questions of law, and procedural errors (Hg.org).
Appeals where all the issues are made up entirely of questions of fact are the most difficult to win. These issues are reviewed under the clearly erroneous standard. For a trial court’s decision to be clearly erroneous the court’s record must contain no facts or evidence supporting the judgement (Brown v. Brown, No. 23A-DC-792 (Ind. App. Nov. 2, 2023)). Under this standard, one witnesses testimony, which is contrary to the testimony of three other witnesses, is considered evidence that supports the judgment. The evidence upon which the judgement was made does not have to be the best evidence or the most evidence, just some evidence. Likewise, appeals based on procedural error can be challenging, such as those raised when the trial court extends or fails to extend a deadline or grants or denies a request for attorney fees to be paid by the other party. These decisions are within the trial courts sound discretion to make, and therefore the standard of review on appeal is abuse of that discretion. An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it (Brown v. Brown, No. 23A-DC-887 (Ind. App. Nov. 28, 2023)). Procedural errors may also be reviewed under the plain error standard. Plain error is an error which constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process (Christner v. Ward, Court of Appeals No. 19A-CT-1009 (Ind. App. Jan. 30, 2020)).
An experienced appellate attorney can advise you if there are any errors which may be reversible under the appropriate standard of review and what your odds might be in convincing the appellate court to reverse all or part of the trial courts decision. This can help you determine if you should consider 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.
