On occasion, there are meetings or continuing education classes where the appellate bench and appellate practitioners get to interact and field questions and concerns. This year has been a banner year for these meetings. For the most part, appellate attorneys appeal cases tried by other attorneys and are limited to the record from that proceeding (the testimony and exhibits). This means that conversations in chambers or between counsels or attorneys and litigants that did not make it into the record are not appealable.
First, if you are anticipating litigation or are embroiled in it, there are four general matters that should be considered in trial in case the decision or verdict is appealed. As noted, evidence that did not get presented at trial is not part of the record. This means that no matter the reason, your appellate counsel cannot raise this at trial. If so, even if critical to your position, to state or infer such a fact mischaracterizes the record and may result in dismissal of the case, appellate attorney fees, or ethical sanctions. It is necessary to get your attorney the key facts and that these key facts are presented in the evidence or it may hamstring your appellate attorney.
Second, an argument that the trial court erred is insufficient and lacks analysis. This is likely to be disregarded by the Court of Appeals as “not cogent”. An argument should be made and then supported by facts and inferences from the record (testimony and exhibits) and then supported as to the error made by the trial court by the law—cases, statutes, administrative rules, and other rules and regulations ranging from trial rules to US Supreme Court cases and the Constitution.
Third, and perhaps the most common error is the failure to cite to the law or facts of the record. A statement of the law should have the case, statute, or other legal principles it is based upon properly cited in Bluebook format. The facts or their logical inferences must be cited to the proper places they are contained in the record. Again, failure to do so may result in a range of penalties including dismissal because it impedes or prohibits proper appellate review.
Fourth, and an issue facing the appellee more often than the appellant is making sure the record before the Court is complete. The appellant may not provide the complete transcript, exhibits or appendix with necessary rebuttal material to cite to in the appellee’s brief. Where this is the case, it is the duty of the appellee to supplement the record or this too may impede the Court of Appeals’ review.
Fortunately, as noted by the appellate judges, the Court of Appeals practice standard is precise. However, all of the requirements are set forth clearly and completely in the Indiana Rules of Appellate procedure available on the Indiana Supreme Court’s website. Follow these four rules to ensure your right to appeal your case to the Indiana Court of Appeals. At times, complex cases are aided by trial counsel that also is a skilled appellate attorney to contemplate both processes.
Dixon & Moseley, P.C. attorneys try complex civil, domestic, and criminal cases throughout the state as well as handle numerous appeals to the Indiana Court of Appeals, Indiana Supreme Court, Seventh Circuit and U.S. Supreme Court. We hope this blog helps you understand the key importance of a proper and complete trial record to make the best appeal. If so, it has met its purpose. This blogs is for general educational purposes only and is not a solicitation for legal services. It is an advertisement.
