The “argument” section of an appellant’s brief is the life-blood of every appeal. This blog explores some of the key aspects of sound argument drafting.
Taking the complex facts of life and applying the law is a daily challenge for lawyers. However, this task becomes more difficult when it involves an appeal and controlling standard of review. The standard of review may limit what facts and laws can be argued as set forth in the Indiana Rules of Appellate Procedure. This limits how the higher court reviews any potential errors made by a trial court.
The first part of the argument is the issue itself. This is blend of the key facts, controlling law, all stated in accordance with the standard of review. Harmonizing this may take several drafts, as the longer the written issue is, the more likely the points made are lost. However, there are times when longer issues must be written, assuming they cannot be broken down. Law is complex and compact shorter issues are often the most powerful.
Next is the controlling law (sometimes this is set out in the argument). Identifying the controlling law is important because it will show the argument of how the trial court erred in applying it or applied the wrong law. However, if a litigant did not argue the facts under the controlling law it is likely waived, except in certain criminal cases.
The standard of review sets the framework for the Court of Appeals, which reviews the trial court’s decision. A decision that applies the wrong law is reviewed de novo by an appellate court, which means this higher court gives no deference to the trial court, as it must apply the correct law.
However, assuming the correct law is applied (which is usually the case), the Court of Appeals or Indiana Supreme Court gives great deference to trial courts to pick and chose between “evidence” it heard, as a trial court judge sees all types of non-verbal cues. There are cases reversed under the various standard of reviews on weight of evidence, sometimes due to constitutional considerations, but these are fewer statistically speaking.
The argument, which is typically the longest part of each issue, synthesizes all of these together and attempts to point to a reversible error, assuming you are the appealing party (appellant). It sets for the facts, controlling law, and applicable standard of review to show such error. However, not all errors are a basis for reversal, as some are harmless.
The conclusion of each issue, if there is more than one, is the place where the relief requested is “prayed for.” This may range from striking a part of an order to remanding for further consideration.
This is the essence of the argument section of an appellant’s brief, the lifeblood of the appellate system. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle appeals across the State of Indiana. It is written for general educational purposes only, and it not a solicitation for services. Ciyou & Dixon, P.C. offices are located in Indianapolis, Indiana.
