You’ve probably heard the old phrase, “I’ll appeal it!” But what does that mean? Your first mental image may be an argument before justices of the United States Supreme Court in a landmark case like Brown v. Board of Education or Roe v. Wade. For Indiana litigants, there is the remote possibility that a case that originates in an Indiana trial court may wind up in SCOTUS. However, the chances are slim. If you do not believe your Indiana judge or jury has decided your case correctly, you will most likely appeal to the Indiana Court of Appeals. While this is a right for all proper cases, there are several common myths about appeals. This blog covers five key points you might be surprised to learn about the limits on appeals you should know if you want to “appeal it!”.
Not all orders appealable. In any given case, a trial court may issue tens if not hundreds of orders to move the case along to a final decision on all issues. In most cases, such as the denial of a motion to suppress in a criminal case or motion to continue in a civil case, the loser cannot appeal this to a higher court. It is only the final order deciding all of the issues in a case that ordinarily can be appealed. The rest of the orders are temporary—or in technical legal parlance—interlocutory orders. There are a few interlocutory orders that may be appealed as a matter of right, such as for the payment of money. However, in some cases, certain interlocutory orders may cause irreparable harm if they are decided incorrectly by the judge and are not corrected until appeal. In this case, your attorney may ask the trial court to “certify” the interlocutory order for appeal. If the trial court does so, then you can ask the Court of Appeals to take the appeal. If they accept it, this is a discretionary interlocutory appeal. Thus, the take away is ordinarily a litigant cannot appeal until there is a final order or sentencing in a criminal case.1
You cannot go directly to the Supreme Court. Another common misperception is a case can just be taken to the Supreme Court. Except for a handful of exceptions, the Indiana Supreme Court takes only cases it chooses based on a litigant filing a Petition for Transfer. In other words, there is no direct right to appeal to the Indiana Supreme Court in most cases. However, if the Indiana Supreme Court denies taking the case, every litigant has the right to seek certiorari to the United States Supreme Court. Ordinarily, this must be done within 90 days after the decision of the Indiana Supreme Court or denial of transfer. Thus, few cases wind up in the Indiana Supreme Court or United States Supreme Court.
Appeals do not stay the enforcement of the order. Perhaps the biggest misunderstanding of litigants who lose and seek to appeal is that the trial court’s decision sits idle until the appeal is complete. This is not so. In other words, if you go to court an lose and are ordered to pay $50,000 it is due then. That said, there are provisions for stays of final orders. This means, if granted, they cannot be enforced until the appellate process is complete. The trial court can order a stay on terms it deems just, normally payment of the sum ordered to the clerk. However, if the trial court denies the stay, or does not rule on it, you have the right to ask the Court of Appeals to stay the order pending appeal. Once the appeal is fully decided, the stay lifts and if you win the money (if that what was ordered) is returned to you. If you lose, it is paid to the original winner.
The other side does not have to appeal. In most trials, there are parties litigating against each other. However, on appeal, if you appeal, the other side does not have to file an Appellee’s Brief. Normally, they will. Nevertheless, if they do not, the Court of Appeals will not develop an argument as if they have argued against you, but you do not automatically win. The Court of Appeals merely applies a less stringent standard of review. So the bottom line is even if your spouse (in the case of divorce) does not file an appellee’s brief, you do not win.
The winner does not recover attorney fees. Indiana and most of America follows the “American Rule”. This is a departure from English law we adopted where the loser in the litigation pays. Under the American Rule, each side ordinarily pays its own legal fees. This means if you lose at trial but prevail on appeal, you still pay your own legal fees. There are a few statutory exceptions, such as for certain crime victims and perhaps most notably in divorce and paternity cases. But as a rule of thumb, each party pays its own legal fees at trial and on appeal.
We hope this blog post helps you understand what an appeal can and cannot do for you. The Indiana Appellate Courts (the Indiana Court of Appeals and Indiana Supreme Court) stand ready, willing and able to help with your case. However, there are key limits you should know as a citizen, legal consumer and potential appellant/appellee. This blog post is written by attorneys at Dixon & Moseley, P.C. who handle appeals from all Indiana counties to the Indiana Court of Appeals and Supreme Court, as well as the Seventh Circuit Court of Appeals and the United States Supreme Court. This blog is written for general educational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.