“I lost my case and am considering an appeal. Does it make sense to seek the opinion of a lawyer other than my trial counsel? Should I speak with an appellate attorney?”

Dixon & Moseley, P.C. appellate attorneys are sometimes called upon to help evaluate the viability of a potential civil appeal or criminal appeal. Obviously, any given appellate attorney's reasoned opinion about the appellate legal theory and chances of success on appeal may not result in a reversal. Instead, three (3) judges in the Court of Appeals of Indiana make the decision and issue a written opinion; and they might analyze the argument differently under the evidence, law, standard of review and decide the case as the trial court did and affirm. Nevertheless, appellate consults and evaluations are effective tools a person might wish to consider. Some cases present stronger issues for appeal and reversal than others.

Most trial lawyers do not handle appeals, and an appellate consult allows a different set of legal eyes (not trial counsel) to independently view the case with no preconceived notions about the case, litigants, lawyers and the judge or jury. Further, the way a case is argued on appeal and what can be argued may not be what is familiar to you or your trial counsel. Most trial counsel encourage appellate consults. An appellate consult will inform you of certain constraints on appeal, which may surprise potential appellants. For instance, if you did not put forth key evidence in trial, this is waived and cannot be raised on appeal in your Appellant’s Brief. Three Questions To Ask When Considering An Appeal.

Additionally, as a part of an appellate consult, the appellate attorney may talk with your trial attorney. Why? If there is consensus between trial and appellate attorneys about the case, namely, to appeal or accept the trial court's decision, that should be carefully considered and weighed relative to the impact of the judgment on your life if you do not seek appeal and accept the decision. In some cases, the judgment is so egregious or otherwise unfair or life-changing that litigants must appeal to know they have done all they can do before accepting the judgment.

Typically, the appellate attorneys at Dixon & Moseley, P.C. see agreement between trial counsel and our appellate advice diverges when the case turns and is won or lost on the facts. For example, if the case is won or lost by credibility of competing witnesses’ testimony, this is likely not a good case for appeal. The reason is obvious to appellate lawyers, but less so to trial attorneys and litigants. Trial court judges (or juries) are in a unique place to look at a witness and judge the merits or weight of their testimony. A great deal of the assignment of weight to a witness comes from the demeanor of a witness, such as, if he or she is happy or sad, nervous, exuberant. This does not come out in the cold record (the typed transcript of the testimony and exhibits) that are used to decide a case by appellate judges. Cases challenging the sufficiency of the evidence can and are won, but they are more difficult to obtain a reversal than where an error of law is made.

Specifically, Indiana's appellate courts give great deference to a trial court judge's assessment of the weight assigned to factual evidence. Merely asking the Court of Appeals or Supreme Court to pick one witness' testimony over the other and reverse is a warning sign that the case does not have a statistical probability of success on appeal. On the other hand, the appellate attorneys at Dixon & Moseley, P.C., often find viable and powerful questions of law to raise on appeal to challenge a trial court's decision that are not uncovered until well into the brief writing process, so an appellate consult has some limits. If an error of law is discovered in briefing your case, know that Indiana's appellate courts do not give any deference to trial court's application of the law, such as if the trial court misapplies the law. Cases where the trial court misapplies the law are cases that are ripe for reversal.

Stated differently, cases that are appealed on errors in the application of the law are the best type of appellate cases that should move forward, relative to the ultimate value of the case or what is at stake. Ultimately, an appellate evaluation should not be viewed as the be all and end all answer. All effective appellate lawyers will caution that the real merits of an appellate case cannot be determined until the research of the law, review of the transcript and exhibits, and briefing begins in earnest. If the merits of the appeal cannot be determined by a consult and the value or impact of the judgment is significant, an appeal should be taken. An appeal can be dismissed while it is in process should the appellant learn from appellate counsel the case is weak for appeal.

An appellate consult serves two other important purposes. First, it provides a level of comfort to allow litigants to make an informed and meaningful decision to continue with the case or discontinue proceeding based on a different legal opinion from an appellate lawyer familiar with cases that get reversed. However, seasoned appellate attorneys understand some litigants, such as a parent losing custody, must appeal to feel they protected their child and use their right to do so even if the odds of reversal are slim. Second, if the appeal is to continue, the litigant has had a moment to meet, assess, and gain confidence in his or her appellate lawyer before heading down a completely different legal road. This is necessary and important to accept any decision of a higher court-to know your legal position was fully vetted and tried.

The appellate lawyers at Dixon & Moseley, P.C., hope you, find this information about appellate consults and evaluation helpful. The wise legal consumer, given that all litigation has trade-offs, always considers his or her case in the larger scope of personal or professional life. If you share our view, perhaps Dixon & Moseley, P.C. is the right appellate attorney for you.