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Three Strong Appellate Issues

Three Strong Appellate Issues That Most People Never Think About: Is This Your Case?

With the age of the internet, most legal consumers have some working knowledge of the issues surrounding their case in a trial court or on appeal. While appeals are much rarer than trial court proceedings, there is still good general information available online about appeals. A little research shows that most appeals involve issues of fact or law. With pure questions of fact, the appellant’s position (on appeal) is the trial court did not properly weight the facts or excluded key facts. Questions of law, which make for stronger appeals, argue on appeal the trial court misapplied the law.

However, in the right case, there are other and somewhat uncommon legal issues that make for great appeals. Three are the focus of this blog post.

The first, and perhaps most common, is a question of first impression. There are tens of thousands of laws and regulations on the books. The decisions of Indiana’s appellate courts on these laws and regulations guide trial courts, but there are still many cases each year that present a “question of first impression.” This means with all of the laws and cases to assist judges, no Indiana court has ever faced and decided the question.

Questions of first impression make for strong appeals because the Court of Appeals plays an instrumental role issuing decisions to develop the law and guide trial court judges to make sound legal decisions. Since these types of issues may arise again, this is a strong appellate issue for one side on appeal. The law is designed to promote uniformity and stability for individuals and businesses so before they enter into a situation that may cause litigation, they can avoid it. Thus, if you and counsel can identify a question of first impression for appeal, you have a strong appellate issue.

A closely related type of appellate issue is one where the law is not fully decided. The way case law is developed in Indiana’s appellate courts is by three judge panels in the Indiana Court of Appeals issuing decisions that may disagree with another panel and decision of this Court. Where this is the case, an appeal may point out these differences and take a position as to how they should be reconciled for the future of case law precedent and stability in the law. This means a given case can literally be won on reconciling the differences in appellate decisions and provide a benchmark decision for similar future cases. A well-seasoned trial and appellate counsel in both cases can sort this out by researching the legal issue at hand.

A final type of appeal, which starts to develop at trial in many cases, is when the law applicable to the case may be unconstitutional. The laws passed by the General Assembly are presumed constitutional. But this does not mean they are constitutional on their face or as applied in any given case. Usually, this has to be raised at trial and the Attorney General notified, but a trial court on its own raises the constitutionality of a statute or law, as with the Court of Appeals. These cases are sometimes hard to identify, but skilled trial counsel and appellate counsel will be able to handle the case so the issue is not waived on appeal. Is this your case? These are key cases for the Court of Appeals and Indiana Supreme Court as gatekeepers to the constitution.

In summary, cases of first impression, those where the controlling appellate decisions conflict, and, in particular, those raising constitutional issues are strong appellate cases.

This blog was written by advocates at Ciyou & Dixon, P.C. who handles appeals of proper interlocutory and final order in cases of all types throughout the state and through the Indiana appellate courts. This blog is provided for general educational purposes and is not intended as a solicitation for legal services or intended to be legal advice. It is an advertisement.


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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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