So you might need to or want to appeal an adverse decision in a civil or criminal case? While there are some differences between these two types of cases, there are many more commonalities.
To get your appeal off on the right legal footing, it is important to understand 9 common mistakes that may impair or preclude this right. This understanding will allow you, whether you are the lawyer or the client, to identify common mistakes that we observe at Ciyou & Dixon, P.C. across a wide spectrum of appeals.
These shortfalls may occur during trial or before the Notice of Appeal is filed. The Notice of Appeal used to be called the “Praecipe.” To avoid these, consider this checklist of sorts contained in this blog post.
Pre-Trial.
Throughout the process leading up to and through trial, there are some common pitfalls to be aware of and try to avoid. Again, while these are common pitfalls, there is nevertheless reason to deviate from any given one if there is a reason to do so.
✔ Special Findings.
One of the most common mistakes a litigant and his or her attorney can make is failing to consider asking for special findings. This is a fairly technical consideration. In essence, if requested in a timely fashion under Trial Rule 52(A), a trial court will specify the exact reason for its decision.
If not, a court only has to state the conclusion. Special findings are not always necessary because they can delay a ruling and cause a litigant to incur more legal fees. However, on appeal, if special findings are made, it makes the appeal sometimes more likely to prevail.
There are two take-a-ways. Consider special findings. And remember they must be requested in writing before the first evidence is received at trial.
✔ Identifying and Trying the Issues.
The second is failing to address all of the legal issues. Trials are dynamic events, and hard for even the most savvy and skilled trial counsel to manage without trying to figure out the case issues as it goes along.
The time to try to figure out all of the legal issues and put on the requisite evidence is not the eve before trial. A trial needs a clear theme and to have all of the legal issues identified under this theme before it begins.
Without this, documentary evidence might not be available or in admissible format. Experts may not be available or witnesses unable to be located. In other words, if issues are not identified and tried, or not tried properly, there is little or nothing an appellate lawyer can do to remedy this.
Trial.
✔ Objections, Offers of Proof, and Waiver.
At trial, litigants, lawyers and judges face the one thing none of us can do anything about: the passage of time and its finite dimension. For this reason (and others, such as temperament of the court), too many objections can waste time and cause other problems to arise, such as not completing the case in the time allotted.
Nevertheless, proper objections must be made to preserve the right to challenge it on appeal. Where evidence is excluded, the attorney may need to make an offer of proof for purpose of appeal. Failure to properly object, make an offer of proof, or otherwise follow the many rules, such as the Indiana Rules of Evidence, waives the right to argue about it on appeal.
In the right situation, that may make or break a viable appellate issue.
✔ Invited Error.
A similar problem is the invited error doctrine. If a party does not put on evidence critical to the case, even if the court must have it to determine the legal issues tried, a party may not raise this on appeal. In other words, your own error cannot create a basis for appeal.
For example, if a party seeks alternative positions at trial, a good case and what he or she could live with if the trial court’s outcome, the latter cannot be appealed. Buyer’s remorse does not make an viable appellate issue.
Post-Trial.
In between the time an order is issued and appeal perfected, there are many mistakes even the diligent litigant and veteran lawyer may make. Some of the more common are enumerated in this blog.
✔ Determining a Final Order.
In many cases, especially those that run beyond the allocated time, a trial court may make temporary orders. However, because of the passage of time, change in the judge or court staff, or counsel, an interlocutory order, one that is not final, may not be viewed that way later.
It is imperative that every order, even jacket entries, be carefully screened to ensure it is not utilizing language that appears to constitute a final order. This can sometimes get tricky because cases may be bifurcated and a part of the issues finalized, starting the time potentially to begin for appeal.
A request for a clarification order is sometimes a way to get express language that the order is not final in order to avoid any pitfall later.
✔ Date of Final Order.
As a general rule, a party who is dissatisfied with a final order may appeal it by filing a Notice of Appeal with the trial court and serving the Clerk of the Indiana Court of Appeals within thirty (30) days. However, this is not as easy as it sounds to determine.
Computation of dates is determined by the Indiana Trial Rules or Appellate Rules. Generally, the date the final order is issued does not count in the time, nor the last day if it falls on a weekend or legal holiday.
More critically, there are three dates that any given order may have: the date it is signed by the judge, the date it is file marked, or the date it appears on the Chronological Case Study. The CCS date typically controls.
Failure to miss the time to file a Notice of Appeal is fatal and bars the appeal. However, in criminal cases, a trial court may allow a belated filing of a Notice of Appeal. This is because the interest at hand, loss of freedom (by incarceration), is more serious.
✔ Motion to Correct Error and Other Motions, Such as Motion to Reconsider.
As a general rule, a Motion to Correct Error is not required before taking an appeal. However, with every legal tool, there is a time and place for a Motion to Correct Error. These are problematic because they toll (stop from running) the time to file a Notice of Appeal.
But, and this is a big but, if the trial court fails to rule on the Motion to Correct Error or set it for a hearing, the trial rules provide for the time to file the Notice of Appeal to start running. Thus, the Motion to Correct Error must be carefully tracked.
This noted, a very common mistake that can easily result in missing the time to file a Notice of Appeal comes by the filing of some other corrective motion. Take the example of an attorney filing a document titled a Motion to Clarify or something like this in a trial court.
This is not a proper motion, and unless ruled on by the grace of the trial court within the limits for a Notice of Appeal, the time to appeal may run. This is a mistake Ciyou & Dixon, P.C. attorneys run across with some frequency.
✔ Waiting to Decide to Appeal.
A big percentage of attorneys do not do appeals and, as such, are not versed on appellate timelines and similar rules. Thus, it is very easy for the time to slip by after a final order is issued. With any final order, haste or time of the essence should be the mantra.
This will allow a busy trial attorney, busy litigant, and busy appellate lawyer to coordinate their schedules and make arrangements for an appeal before the 11th hour. Emergencies and acting without complete information, which is what happens by waiting, is the recipe for a mistake to occur, most notably filing an untimely Notice of Appeal.
✔ Appealing Question of Fact, Wrong Issues, or Too Many Issues.
The final and perhaps most common mistake that occurs in deciding to appeal, is taking an appeal based on purely questions of fact, picking the wrong issues, or raising too many issues. The tendency of some lawyers is to leave it up to the client.
Some clients leave it to their appellate counsel. The best approach is to work hand-in-hand to jointly make this decision. Ultimately, this allows the best issues to be presented, still allows a client to raise emotional issues necessary to get on in life, but in all ways makes the decision made to be more palatable and viewed as due process.
At Ciyou & Dixon, P.C. we hope these 9 caveats or pitfalls help you make your appeal, appealing, and successful. We welcome the opportunity to consult with you about our fit for your potential appeal.
