To the Reader, most of the elements of an appeal should make sense. However, the standard of review is a lynchpin of every argument, but difficult to understand.

In fact, the standard of review is what differentiates the trial court from the appellate courts.

And it is what keeps the Court of Appeals from being a super-trial court and re-reviewing and re-deciding every case brought before it.

For this reason, and consistent with the educational focus of this Site, some discussion is necessary about this bridge (trial court to Court of Appeals) topic.

Assuming there is a real dispute about the validity of decision of the trial court (law is controlling, not unbridled emotion), Ciyou & Dixon, P.C. advocates quickly turn to the standard of review in helping a client make a decision about appealing and in picking the appropriate issues.

The reason it merits some discussion and is a separate topic is because a savvy litigant can prepare for an appeal in the trial court and improve the odds of prevailing on appeal by understanding the difference between questions of fact and law and the form in which the trial court issues its order, unless you, the Reader, request otherwise.

A. Questions of Fact or Law.

The first concept is the distinction between questions of fact versus law. The Indiana Court of Appeals or, ultimately, the Indiana Supreme Court, is more likely to reverse the decision of the trial court based on questions of law, not fact.

Questions of fact are the most obvious and easy to understand. These involve conflicts in important facts. For instance, determining whether a criminal defendant was at the place where the crime occurred versus a different state (an alibi).

Where there are competing facts, Indiana’s higher courts, the Indiana Court of Appeals and/or Indiana Supreme Court defers to the decision made by a trial court. In other words, unless these higher courts find that the trial court’s decision on conflicting facts is against the logic and circumstances, or common sense, it defers to the trial court’s decision.

This means the Court of Appeals gives the trial court judge or jury great deference.

Why? Because the parties and witnesses appear and testify. These fact-finders are uniquely able to see body language and listen to and sort out whose story makes sense. A great deal of information about truth or falseness of statements comes at the non-verbal level. Thus, these fact-finders are given great deference.

On the other hand, questions of law, what a law means or how it applies, is reviewed de novo. This means that the higher court gives no deference to the application or interpretation of the law made by the trial court. A higher court, comprised of more than one judge, is just as or more capable of applying legal standards.

B. General Judgment or Special Findings.

An advanced consideration with questions of fact or law on appeal, and a way to mitigate against weak facts, is how the trial court forms its final order. This impacts the appellate standard of review. Typically, a trial court issues a general judgment, which is nothing more than just stating its decision.

With a general judgment, if there is any evidence in the record to support the trial court’s order, the higher court affirms the order it is reviewing.

If you, the Reader, have a case that may go to appeal, but has not yet been tried, an important discussion to have with your trial counsel is whether you will ask for special findings. This may make or break your appeal. However, a litigant has the duty to request these. If not, the right is waived.

To the extent the trial court enters special findings, as requested by a party under the trial rules, the facts of the record (evidence) must support the facts the trial court finds to be controlling. With this, the special findings must walk, like footprints on a beach, to the conclusions of law.

By way of an example, if a trial court finds both parents have used drugs, but a mother is still gripped by addiction, this special finding may support the conclusion of law that it is in the best interest of the child to have custody modified to the father.

Ultimately, the special findings, including the ultimate findings on the legal issue, and the conclusion of law thereupon, must support the judgment, such as under the noted example, that custody is modified to the father. If the facts do not support the findings, and the findings the conclusions of law, the trial court’s judgment is clearly erroneous. If this is the case, it is likely the trial court’s final order modifying custody, will be reversed.

For this reason, Ciyou & Dixon, P.C. sometimes consults with other attorneys and their clients about the way to prepare a case for appeal in the event they are unsuccessful at trial.