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Appellate Process

“I now have a final order. I lost. I might want to challenge it because I should have won. If I do, what happens next?”

After an adverse decision in a trial court, there are three choices available to an aggrieved litigant. The first choice is to accept the decision. In cases of low dollar value or where the outcome is one that “splits the baby”, giving each party some of what they ask for, this may make sense. A frank and forthright discussion with your trial counsel about proceeding should be had, so long as trial counsel understands the appellate process. If you do not proceed, then you have to abide by the order. This is a choice that makes sense for the majority of litigants, as litigation is emotionally draining and expensive; this ends it and the parties can move on in life. How to Appeal a Decision of a Judge or Jury in Indiana.

Before taking an appeal, you may file a Motion to Correct Error to correct a perceived mistake, hoping the trial court will grant this to avoid an appeal. This is filed in same trial court and asks the judge to reconsider the final order or decision and is governed by the trial rules. Except in cases of obvious error, asking the trial judge who just heard the evidence, considered it, and ruled to decide differently is normally futile and a uses important legal fees. However, there are a limited set of circumstances where a Motion to Correct Error makes sense, such as if the law changed and the judge applied the wrong law. On the whole, a Motion to Correct Error is not a wise decision. Furthermore, the court is not obligated to rule on or set the Motion to Correct Error for hearing. If it does neither, it will be deemed denied by passage of time. If you are not carefully tracking for a ruling or failure to rule, you may miss the date it is deemed denied, which starts your time running to file your Notice of Appeal; it is thus easy to miss your appellate deadline when you file a Motion to Correct Error. On the whole, a Motion to Correct Error is not usually the preferred course of legal action to address what you believe is an erroneous order.

If a Motion to Correct Error is not filed, denied, or deemed denied, the only remaining choice is to take an appeal. An appeal is perfected by filing a Notice of Appeal within thirty (30) days of a final appealable order being issued and paying the $250 filing fee. At this time, the Rules of Appellate Procedure govern how appeal moves forward. Several years ago, a Notice of Appeal was called a Praecipe. This rule has been abrogated. The Notice of Appeal is like an appearance in a trial court case and lets the Court of Appeals know you are appealing and advises it of your appellate counsel. It also identifies the final appealable order(s) being appealed and instructs the Court Reporter to prepare the requested transcripts and the Clerk to make certain filings.

The Notice of Appeal puts certain duties on the Clerk and the Court Reporter. Within thirty (30) days of the filing of the Notice of Appeal, the Clerk must assemble the Clerk’s Record and issue a Notice of Completion of Clerk’s Record, attaching a copy of the Chronological Case Summary and indicating whether a transcript was requested and whether it is complete. If the Clerk fails to timely serve the Notice of Completion of Clerk’s Record, the appellant’s counsel must file a Motion to Compel with the Court of Appeals. If this is not done in time, it subjects the appeal to dismissal. Within forty-five (45) days, the Court Reporter must complete the Transcript, file it, and file a Notice of Completion of Transcript. If the Court Reporter does not, the appellant’s counsel has to file a Motion to Compel within seven (7) days or the appeal is subject to dismissal. If the Transcript has been requested, but not completed when the trial court clerk issued its Notice of Completion of Clerk’s Record, the Clerk shall issue and file a Notice of Completion of Transcript and serve the parties within five (5) days after the Court Reporter files the Transcript. Appellant’s Notice of Appeal and Final Appealable Order.

At this point, the appeal really begins for appellate counsel. The Appellant has thirty (30) days to research, write and file his/her/its Appellant’s Brief. Motions for Extension of Time in appeals involving worker’s compensation, issues of child custody, support, visitation, paternity, adoption, and determination that a child is in need of services are only granted in extraordinary circumstances. So, your Appellant’s Brief due date can sometimes be enlarged. This Brief may be 30 pages long or fourteen thousand (14,000) words, whichever is longer. There is a Rule in the Indiana Rules of Appellate Procedure to file an oversized Appellant’s Brief, but these are rarely sought or granted.

While there is no requirement to file an Appellee’s Brief, most Appellees do so because it changes the standard of review and increases the likelihood the case, they won in the trial court below will not be reversed. Specifically, when an Appellee does not file a brief, the Court of Appeals does not develop an argument for the Appellee and applies a less stringent standard of review. That said, the Appellee has thirty (30) days to file the Appellee’s Brief from the date the Appellant filed his/her/its brief. Any material that is argued in Appellee’s Brief that is not responsive to the Appellant’s Brief is subject to being stricken. This Brief may also be thirty (30) pages long or fourteen thousand words (14,000) words in length, whichever is longer.

Since the Appellant lodged the appeal, he or she has the right to have a last response to the Appellee’s Brief and may research, draft and file a Reply Brief within fifteen (15) days. This brief is limited to replying to the Appellee’s Brief. It must be no longer fifteen (15) pages or more than 7,000 words in length, whichever is longer. Most Appellant’s elect to file a Reply brief due to the way most effective Appellee attacks their Appellant’s Brief.

At this time, the briefing is completed, and the Clerk of the Court of Appeals and Indiana Supreme Court transfers it to the three-judge panel who will review the case and issue a written opinion in a few weeks or months. If requested, the Court of Appeals may allow an oral argument. With this, the parties are invited to the Court of Appeals courtroom in the Rotunda of the Indiana State Capitol and given an allocated or fixed amount of time to argue the merits of their respective positions. Typically, the judges on the writing panel hear the oral argument. Oral arguments are rare.

When the writing panel completes the decision, it will designate the decision to be “For Publication” or a “Memorandum Decision”. Cases that are designated a “Memorandum Decision” typically do not get published and involve the merits of the parties’ case, although they are on-line and available to the public. “For Publication” cases reflect some development of the law by the decision in the case. When issued, the Clerk of the Court of Appeals and Indiana Supreme Court transmits these electronically to the parties. The Appellant and/or Appellee have thirty (30) days to ask the Court of Appeals to rehear the case or seek transfer to the Indiana Supreme Court. If rehearing is not sought, the aggrieved party has forty (45) days to file a petition to transfer.

Although complicated, and laden with deadlines that can cause the best of appeals to be dismissed or forfeited, a skilled appeals attorney can carefully and successively navigate the appellate process for you. Is your case one you have to appeal? Choose your appellate team carefully. Is this something Ciyou & Dixon, P.C. can assist you with?

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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