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Appellate Advocacy and Hierarchy of Courts

Appellate practice is much different than trial practice.  There are many differences between trial courts and how to present cases in the trial court, and appeals.

First, trial courts are the first court (unless you have an administrative issue, which goes to the administrative agency first) to hear a case.  There are many rules and practices to presenting evidence and arguing law in the trial court, but generally, any relevant evidence, not otherwise inadmissible under the rules, is allowed to be presented to the court.  In trial courts witnesses testify as to their impressions regarding the facts of the case, and attorneys can make oral arguments “on the record” about the applicable laws.  Some trial courts will allow proposed special findings by attorneys or post hearing briefs, outlining the relevant law and argument for his or her position.  The court room proceedings are generally recorded by an audio device, which allows for a court reporter to be able to later transcribe the events in the courtroom during the hearing or trial (the transcript).  Judges and juries make decisions about facts and law, based on the evidence they hear or see.  A final judgment is issued from a trial court and has full force and effect when it is issued.

The Court of Appeals is the second tier of courts in Indiana.  An appeal of a final order to the Indiana Court of Appeals is an appeal by right, which means you have the right to seek appeal, so long as you have a good faith argument that there was an error of the trial court, or for a change in the law (this is a fairly broad scope of what can be argued on appeal).  Unlike trial courts, there are usually no hearings (very rarely does the Indiana Court of Appeals Order Oral Arguments).  Also, even if an Oral Argument is set, the parties do not have a chance to speak, but instead their attorneys will present the argument to the Court of Appeals.  The Court of Appeals does not determine new facts, this is why there is no testimony or submission of new evidence.  Instead, the Court of Appeals looks at the record from the trial court (the documentary evidence and the testimony of witnesses that is transcribed to the transcript).  Therefore, it is important to understand that if evidence was not offered to the trial court, it cannot later be brought up on appeal.  The standard of review in the Court of Appeals is 1) abuse of discretion by the trial court (usually when it comes to a factual determination) and 2) error of law (questions of law are reviewed without discretion given to the trial court).  Appeals are done by written briefs.  Often, the litigant never sees the judges, or has to go to court.  Appeals are very rule sensitive, including many nuance procedural rules, such as page and word limits, colors of covers and binding requirements for the briefs, etc.

The Indiana Supreme Court is the final tier of courts in Indiana .  An appeal to the Indiana Supreme Court is by permission.  This means you have to ask the court to take your case, and they will either agree to look at it, or not.  If the Indiana Supreme Court grants transfer (takes the case), they can review the entire record and make decisions about any errors they see (even if you didn’t include a particular issue in your Petition for Transfer).  The Indiana Supreme Court will usually set Oral Argument for any case they take.  Thus, the litigant may have a court date to attend (though they are not required to appear).  However, the court proceeding is comprised only of attorney argument and questions from the panel of justices, and not like a trial court where witnesses or parties testify about the facts.

We hope that you have found this information to be helpful in understanding the types of courts in Indiana and how they differ.  This is not intended to be legal advice.  If you have questions or concerns about your specific case, CIYOU & DIXON, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.


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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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