Many clients, and prospective clients, have come to us after receiving some sort of adverse judgment in a trial court wanting to appeal. These individuals typically have a laundry list of arguments that they want to raise on appeal. Yet, what some litigants do not realize is that there are limitations on what can be argued on appeal. This is understandable as the appeals process can be a long and confusing one, even for attorneys. Nonetheless, having a basic understanding of the limitations on, and rules surrounding, an individual’s argument on appeal will go a long way in preparing for your case. In this blog, we provide four things you should know about making your argument on appeal.
Preserving the Issue(s)/Argument(s) for Appeal. The first thing to know about arguments on appeal is the general rule requiring a party to preserve an issue and/or argument in order to raise that issue and/or argument on appeal. But what does this mean? How do you preserve an issue or argument for appeal? In order to preserve an issue or argument, all that is required is that the party present the issue or argument to the trial court. Therefore, before you make an argument on appeal, that argument must first be made to the trial court. Stated differently, “a party waives appellate review of an issue or argument unless the party raised that issue or argument before the trial court.”1
Objection Requirement. The next thing to know about arguments on appeal is what is known as the objection requirement. This requirement can almost be thought of as the inverse of the requirement that you must first present an issue and/or argument to the trial court before you can raise that issue and/or argument on appeal. That is, generally speaking, in order to effectively preserve an issue for appeal, a party must object to the alleged error at the trial court level. For example, suppose that the trial court admitted certain evidence into the record, but you believe that this evidence should have been excluded. In order to argue that the evidence should have been excluded on appeal, you must first object to the evidence being admitted at the trial court level. If an individual fails to object at trial, that individual is prohibited from arguing the issue on appeal. This is known as “invited error” or “waiver”.
Exceptions to the Rule. As previously mentioned, the above rules regarding preserving issues/arguments for appeal are only the general rules. Like everything in life there are, of course, exceptions to the rule. One such exception is what is know as fundamental error. This doctrine is limited to certain circumstances, and only applied when: (1) the error constitutes a blatant violation of basic principles; (2) the harm or potential for future harm is substantial; and (3) the resulting error denies the defendant fundamental due process. Another exception is constitutional challenges. On appeal, an individual can raise a constitutional challenge for the first time. However, the Appellate Courts are under no duty to take the argument. Instead, the Appellate Courts have the discretion to address constitutional arguments that are raised on appeal for the first time. The important takeaway is to remember there are exceptions to the general rules listed above.
Limited to the Record. The last thing to know about arguments on appeal is that you are “limited to the record.” That is, all evidence and testimony presented in the case at the trial court level. Any evidence or facts that are not contained in the record are off-limits in the appeal. Furthermore, the Court of Appeals can only consider the facts and circumstances as they existed during the hearing, not issues that have arisen since. Thus, remember that in order to use certain evidence on appeal, it must be in the record.
Appeals are complex matters, and this area of law is extremely technical. The above information is general in nature, and it is important to know that there are exceptions to almost every rule. Obtaining skilled counsel is key to navigating the complex waters of appeals. This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle all types of appeals, be it civil or criminal, throughout Indiana. This blog is intended for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.