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A Lack of “Appeal?”: Four Weak Types of Issues to Raise On Appeal

The Indiana Court of Appeals stand open to all litigants to bring appeals of most all final orders (and some interlocutory orders) from Indiana’s trial courts.  This is a now a constitutional right (in the late 1800s this Court was created to assist the Indiana Supreme Court with an overflow of cases and later became a permanent court).

While all such cases may be appealed, a general disagreement with the impartial decision of fact by a judge and/or jury isn’t necessarily a great appeal, and may have a “lack of appeal” in the sense of reversal.  The are many issues that are sound and important appellate issues, such as those protecting constitutional rights. Four general legal issues are not necessarily prudent to raise on appeal.

The first is a “pet issue.”  This is one of mostly non-legal importance, such as an inconsequential deviation in an equal division of a marital estate. A deviation of a few dollars or few hundred to a few thousand dollars may not be material to the statutory presumption in the context of the overall marital estate. Those types of issues slow down appellate review or more important significant issues to the detriment of the Court and those it serves.

The second, and perhaps most common, weak appellate issue is a discretionary call of the trial court in a he-said, she-said dispute.  The trial court judge in criminal and civil matters is duty bound and sworn to judge the credibility of witnesses in an unbiased fashion. When a judge does so, the Court of Appeals does not reverse and rarely reverses a cold record by substituting its judgment.

A third appellate mistake that is less frequent but undermines an entire position is raising too many issues. Typically one to three issues reflect the true disputes about the integrity of an order.  Many issues just dilute the better issues and may leave an overall impression of someone who does not value the impartiality of the judiciary.

The final or forth less-than-optimal issue is one that is moot or inconsequential.  Sometimes moot issues, such as reflected in the famous Roe v. Wade decision are bigger than an actual litigant. However, appealing trivial or issues that are already effectively without remedy is often a waste of appellate time.

Thus, the decision to appeal and what to appeal should be made carefully with an understanding of the law, standard of appellate review, and within the limits of the Rules of Appellate Procedure.  When this is the case, a litigant can be assured of a fair and careful appellate review as this is the sole focus of the Court of Appeals.

This blog is written by attorneys at Ciyou & Dixon, P.C. who handle appeals from trial courts throughout the state of Indiana.  This is for general educational purposes only and is not legal advice or solicitation for legal representation for a specific legal matter. This should be viewed as advertising material.


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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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