What You Need to Know in Picking an Appellate Attorney and Identifying Issues for Appeal
In Indiana, we are fortunate (in most cases) to have the automatic right to file an appeal of a final order with the Indiana Court of Appeals. However, an appeal is a sophisticated and complex legal instrument that is often both time-consuming and costly. For these two reasons, and obviously, to hopefully obtain a reversal of what is believed to be an error made by the trial court, the appellate briefing should be as good as it can be. Thus, you should great care in choosing your appellate attorney and consider what you want to appeal and why.
As appellate attorneys, we frequently see four common mistakes in an appellate briefing that, at a minimum, are distracting to the panel of three appellate judges who are tasked with deciding the case based on both the briefs and the trial court’s record. The first common mistake is poor writing. While this may not seem like it would be an issue in the appellate briefing, we often see briefs with typos, missing sentences, and poor (or missing) punctuation. Obviously, this will impact the first impression of the reader.
A second significant mistake we often see is the inclusion of “pet” issues. While there is no legal definition for “pet” issues, they can best be thought of as emotional interests (like who obtains a certain piece of furniture) which tend to be immaterial and unworthy of consideration by the appellate judges because of their de minimus value. It may seem that you simply cannot move on without raising the issue, but think about the perception this tends to create for you as an unreasonable litigant.
Thirdly, good legal brief writing should be grounded in solid legal research. A significant number of briefs include citations to the wrong legal standard for reversal, incorrect statutes, outdated or inapplicable caselaw, or improper citation. This tends to diminish the value of the brief because the Court of Appeals does not and will not make or develop arguments for litigants. Mistakes such as these may well cause a case to be lost.
Finally, good writing should include re-writing and revisions and then careful proofreading; but sometimes this or for other unknown reasons, the brief’s argument does not make sense. This is where the Court of Appeals may refer to the argument as not being “cogent”. Take care to make concise points to make it as simple as possible for the Court of Appeals to do its job.
This blog post was written by attorneys from Dixon & Moseley, P.C. who handle appeals of final trial court orders from all over Indiana. This blog is written as a tool to provide general information about appeals. It is not legal advice or a solicitation for legal services. It is an advertisement.