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Four Common Mistakes Litigants Make On Appeal

Indiana’s few trial court judges, magistrates, commissioners and pro tems hear and decide a staggering number of cases (tens of thousands) each year with speed and accuracy. However, approximately 4,000 are appealed to the Court of Appeals as a matter of right. In consultation with their attorneys, litigants help to decide what issues to raise on appeal. Four common mistakes with litigants in selecting issues.

Every “Mistake:” The first is trying to appeal every actual or perceived mistake made a trial. No trial is “perfect.” Ultimately, if the “mistake” will not make a difference in the decision it is generally a poor choice to raise it on appeal. Nevertheless, some issue can have a larger impact on future cases and this may be a reason for such an appeal. As a general rule of thumb, do not appeal an issue just to “prove” you were right.

All Issues: Another struggle attorneys and litigants have with appeals is deciding which issues to raise. There is a temptation to argue every issue that could make a difference in the decision. However, there are time and page limits on appeals. The best issues are those that will make a difference in the bigger picture long after the appeal is decided, not one that will have minimal impact. For this reason, appealing more than three of four issues, at most, is generally an unsound legal idea.

Comparing Witness/Evidence: Everyone is infallible. However, raising questions of comparison of evidence or witnesses on appeal, particularly judging one witness over another is not normally appropriate for appeal. The judges who decide the case on appeal face a “cold record.” They cannot judge the witnesses verbal and non-verbal presentation of evidence. Therefore, great deference is given to trial court judges whose observations on appeal cannot be replicated in the appeal. This is not the Court of Appeals role, but they will reverse credibility issues where a review of the record (transcript and exhibits) leaves it with a firm conviction a mistake has been made.

Challenging the Institution(s): Normally, where a reversal occurs, it is because of sequence of events other litigants have put into place, even where they actually do or are alleged to improperly use parts of the system. This might include making a questionable police report to allegations with various administrative agencies. The express job of those involved in the legal system and government at large is to investigate such. The fact that the litigant may have used such improperly does not mean everyone is conspiring against the litigant. Such “conspiracy” issues are generally ill made in trial courts and appeal. Without government, you would not be reading this blog or able to go to court.

Appeals are emotionally and legally challenging matters. Perspective, context, and listening to your lawyer to make the most successful legal issues on appeal is far more likely to carry the day. It is hoped these common mistakes help you in considering any appeal you may bring. This blog was written by attorneys at Ciyou & Dixon, P.C. who handle appeals across the State of Indiana. It is not intended as legal advice or a solicitation for legal services.

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