In Indiana, unlike some other states, there are two higher courts, the Indiana Court of Appeals and the Supreme Court. Generally, litigants have an appeal as a matter of right from any losing (in whole or part) final order issued from an Indiana trial court. Appeals are made in written format and have very precise rules and requirements because of the vast amount of time and resources an appeal takes. Whether considering an appeal or retaining counsel, this blog sets forth mistakes that can dilute your appellate brief, cause dismissal, or even sanctions. The key takeaway is appeals need the time, attention and skill to avoid these mistakes; educate yourself.
The first major mistake on appeal is citing the wrong law or reference that has already been identified by the Court of Appeals. This is very difficult to avoid if you or your counsel are not familiar with appellate law practice and the evolution of decisional law. Using these materials in your brief reflects—at a minimum—not taking your appeal and challenges you make seriously. For instance, Indiana has evolved over time to a gender-neutral presumption for child custody, meaning neither parent is preferred for the original custody decision. However, direct references to the Maternal Preference Rule or Tender Years Doctrine still find their way into appellate arguments, only to be rejected by the Court of Appeals;1 this weakens the argument. Further, there are numerous respected legal authorities to cite to for legal and non-legal definitions to legal and public policy positions. Yet, appellants still cite to lay resources like Wikipedia, where the Indiana Court of Appeals has warned against using a source anyone can edit.2
The second and perhaps most common appellate error is failing to follow the appellate rules for the organization of a brief and proper pinpoint cites to the record and proper formatting of cases and statutes cited in a brief. While every brief has an occasion error, multiple mistakes and failures to comply with appellate rules may be so substantial as to impede the Court’s consideration of the issues and waive the errors alleged on appeal;3 this means that you do not get an appellate decision on the issue because you waive it. A significant mistake is making the facts of the case—the Court of Appeals needs to understand the issues in a neutral way favorable to the judgment—argumentative. The argument about why the trial court decided the case wrong is found and made in the argument section.
A third and often terminal mistake is made with not following technical mandates for appeals that may automatically cause waiver or dismissal. These are less common but more serious in most cases. The first is when an error of a trial court is predicated on failure or refusal to give a jury instruction; the instruction must be set out verbatim in the argument section of the brief with verbatim objections, if any.4 Equally, the failure to timely file an appeal forfeits the appeal. While certain criminal cases may cause the Court of Appeals to relax these rules in rare occasions because of the deprivation of a freedom interest, these failures are most often terminal to the appeal, meaning the trial court judgment or jury conviction stands.
Fourthly, in rare cases, an appeal is so deficient in cites, structure, and arguments that have no merit in law, that the Court of Appeals may entertain a litigant’s motion for bad faith. Because awards of appellate attorney fees have the potential for a chilling effect on the right to appeal, the Court of Appeals is very limited in granting this relief. However, if a party shows numerous procedural errors as it relates to cites and the appellate rules and/or that appellant’s contentions and arguments are utterly devoid of all plausibility, the Court of Appeals may award appellate fees.5
Appeals are an important protection for litigants, but consume a substantial amount of judicial resources and those of the parties. For this reason, appeals must generally be well considered, researched, written and follow the appellate rules and practice norms of the appellate bar. If your case is important enough to appeal, you need to make the best of an appeal and avoid these pitfalls. Ciyou & Dixon, P.C. attorneys handle appeals from all Indiana trial courts to the Indiana Court of Appeals. This blog post is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- D.H. v. J.H., 418 N.E.2d 286 (Ind.Ct.App.1981).
- Hardin v. Hardin, 964 N.E.2d 247 (Ind.Ct.App.2012).
- Perry v. Anonymous Physician 1, 25 N.E.3d 103 (Ind.Ct.App.2014).
- Indiana Rule of Appellate Procedure 46(A)(8)(e).
- Thacker v. Wentzel, 797 N.E.2d 342(Ind.Ct.App.2002).
