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Top 4 Cases to Raise an Appeal

“To Appeal or Not to Appeal: The Four Best Types of Cases or Issues to Raise on Appeal.”

The few hundred trial courts and judges that comprise Indiana state courts handle nearly 2 million cases at any one time. These courts, primarily through the judge (there are relatively few jury trials), are tasked with what is a difficult job on a good day and impossible on other days.

The terrorism of Sept. 11, 2001, provides just such an example. Did the two jets that were flown into the World Trade Center’s twin towers constitute one act of terrorism or two? That made a difference in insurance coverage.

Clearly, no one (building owner or insurer) contemplated this when insuring the buildings. Yet, hundreds of millions of dollars were involved and a judge tasked to decide the matter.

With this example, and given the sheer number of cases, it should come as no surprise that there is a constitutional right in Indiana to appeal.

The fact is that trial courts are overworked and sometimes do make the wrong decisions.

In this orientation, Ciyou & Dixon, P.C. attorneys are often consulted about whether an appeal is viable — is there a good probability of obtaining a reversal in whole or in part, on appeal based on errors that occurred in a trial?

A threshold point we stress is that no case, judge, court, lawyer or litigant has a pure legal issue, perfect advocate and flawless trial process. The fact that the issue reached litigation and trial itself demonstrates the point. As such, a corresponding concept is that not all errors that occur will be reversed on appeal, particularly as it relates to a judge weighing the facts or he-said, she-said.

Nevertheless, Ciyou & Dixon, P.C. attorneys find that there are four types of legal cases that are more likely to gain traction in the higher appellate courts and result in reversal and perhaps ultimately a different outcome.

Social Policy

The first and one of much current interest is where a law is judicially repealed based on its policy being determined to be out of date in current society. The example is the Indiana Supreme Court’s recent Barnes (2011) case.

This decision repudiates the common-law right for a homeowner to resist unlawful police entry into his or her home. No longer may a homeowner resist this based on more modern and additional legal remedies available to the homeowner. These include suppression of evidence of a crime obtained in the home, and filing a civil-rights lawsuit.

Where policies are in conflict, the appellate court is more likely to reach a different conclusion than a trial court. In fact, the implications of such cases are often greater then the effect on the individuals involved. They may apply to the citizenry at large. These are strong appellate cases.

Constitutional Infringement

There is overlap between policy cases the appellate courts take and decide, sometimes reversing trial courts, and those with constitutional dimensions. For instance, the noted Barnes change in position prohibiting resistance of unlawful entry into one’s home engages the Fourth Amendment prohibition against unlawful searches and seizures.

In a number of cases, the constitutional infringement may not be tethered to a policy in debate or a state of flux. Constitutional principles are bedrock boundaries that must not be abridged. To hold the line and keep constitutional protections from being diluted, these issues are also of great interest to Indiana appellate courts.

Two recent cases, one civil and one criminal, aptly demonstrate the potential weight afforded to these issues on appeal.

In the Paternity of K.D. (2010), the trial court, mandated to maintain the identifying information about paternity matters as confidential, prohibited the mother from discussing the case in any fashion with anyone. On appeal, the Indiana Court of Appeals reversed this order as an overbroad and invalid prior restraint on free speech.

The Malone (2008) case highlights the importance afforded to appeals involving constitutional rights. In this case, the Court of Appeals held that police officers could not seize a handgun from the defendant, Malone, while he was standing on the front porch of his home, without a search warrant or exigent circumstances. The handgun evidence was thus suppressed, ending the State’s case against Malone for being a serious violent felon in possession of a firearm.

Cases of violation of constitutional rights are also strong appellate cases.

No Legal Remedy.

The current economic downturn and a confluence of other changes in our society have taken law to the brink and beyond. General Motors was too big to fail, but it did. The controlling Bankruptcy Code was pushed aside to allow action.

Interestingly, an Indiana retirement association obtained an emergency stay in the Supreme Court of the United States with such an argument. But it was lifted and GM sped through bankruptcy. That is old news.

This pressure is found in Indiana from time to time, and such cases usually work their way to and through the Indiana appellate courts. These are important, and lives, fortunes, and our way of life depend on appellate review.

For example, following Congress’ passage of the Protection of Lawful Commerce in Arms Act, Gary’s litigation against gun manufacturers was one of the only lawsuits a judge refused to dismiss, and it promptly went up on appeal.

Cases without legal remedy are not limited to big business or business at all. Individuals and their legal issues sometimes find themselves in similar circumstances — without a legal remedy. Appellate courts exist just for this reason.

In Paternity of Infant R (2010), a married couple agreed to have their embryo implanted into the wife’s sister. On the child’s birth, the couple filed a legal petition to establish paternity and maternity.

The trial court refused to establish maternity because the controlling Indiana statute lacks a provision for the establishment of maternity. On appeal, the Court of Appeals agreed, but provided instructions for the trial court to establish maternity, and reversed.

Inasmuch, cases that should have a legal remedy, based on the needs of the society it serves, are ones that garner the attention of the judiciary. The judiciary does not sit idly by and allow our society to erode. Instead, it is responsive, but sometimes defers to the General Assembly to provide a legal tool for it to use.

Misapplication of Law.

The final, although most common, type of case that is a good appeal occurs when the trial court makes a mistake in the understanding of law. The Court of Appeals and Supreme Court give the trial court wide berth in picking which facts to rely on. However, this is not the case where the trial court misapplies the law.

These higher courts give no deference to a trial court’s application of the law. An example is found in Paternity of S.G.H (2009). In reversing the trial court’s child support, the Court of Appeals found that it had provided the noncustodial individual with two different child support credits that covered summer parenting time.

The first credit is for overnight parenting time under the current Child Support Guidelines. In addition, it provided a 50% support abatement under abrogated Child Support Guidelines. Therefore, the Court of Appeals ordered the trial court to strike a portion of its order providing both credits.

Does your case fall into one of these Big Four appellate areas:

  • Public Policy in Debate.
  • Violation of Constitutional Rights.
  • Legal Issue Lacking Remedy.
  • Determination Made of Misapplication of Controlling Law.

If this is your case, an appeal may be more than just an available right; it may result in a reversal or different ultimate outcome. More importantly, it may be a case that, once decided by Indiana’s appellate courts, shapes the law — fulfilling our duty as citizens to ensure a fair and impartial judiciary. This is what affords due process to the least among us. And it makes the American legal system the envy of the world.

Ciyou & Dixon, P.C. handles cases in the Indiana Court of Appeals and Indiana Supreme Court.


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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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