When you are a party in civil litigation (you are suing or being sued), it is common to receive a subpoena for your deposition. This means your opponent is on a “fishing expedition” to find out everything you know about the issues involved in the case. This process is done before a court reporter and you are asked all sorts of questions. Depositions are different than testimony at trial since the opposing counsel can ask a much broader scope of questions at a deposition if they might lead to admissible evidence.1 Keep in mind that your deposition testimony can significantly ...
October 3, 2018CD
On occasion, there are meetings or continuing education classes where the appellate bench and appellate practitioners get to interact and field questions and concerns. This year has been a banner year for these meetings. For the most part, appellate attorneys appeal cases tried by other attorneys and are limited to the record from that proceeding (the testimony and exhibits). This means that conversations in chambers or between counsels or attorneys and litigants that did not make it into the record are not appealable. First, if you are anticipating litigation or are embroiled in it, there are four general matters that should ...
October 24, 2017CD
The number of appeals in Indiana is small compared to the overwhelming number of cases tried in Indiana’s trial courts each year. Correspondingly, there are only a few more than twenty appellate judges and senior judges who decide appellate cases. There are few attorneys who handle appears on a regular basis. On occasion, the small appellate bench and bar get to interact at professional events. At a recent gathering, the appellate judges provided wisdom about four key mistakes that they see with appellate briefing you should avoid in your brief (or insisting your attorney place in your brief). These are gems ...
October 20, 2017CD
What makes our society safe (police) and free (doing what you want) is the delicate balance of power created by the Fourth Amendment to the United States Constitution. For Hoosiers, there is also a balance of power created by Article 1, Section 11 of the Indiana Constitution. A topic not well understood but in the daily news is when the police act (or fail to act). For police and citizens there is no agreement in any given case, but do you know the law? This blog post explores when police may “stop” a person on the street or public place. This is ...
August 9, 2017CD
To address a parent’s failure to pay child support for a child born within a marriage or out of wedlock, certain levels of non-support have thresholds that have been addressed by statutes. For example, at the state-level, there are statutes that make non-support a felony to prohibiting a licensed professional from renewal. Under federal law, a significant child support arrearage may cause non-renewal or issuance of United States Passport. Today, the Indiana Court of Appeals decided an important case that shows the ways to potentially retroactively modify child support ordered by a trial court.1 These exceptions show when your income changes ...
June 6, 2017CD
There are many legal considerations in taking an appeal from a trial court’s final order to the Indiana Court of Appeals. In this blog post, three of the most basic considerations for appeal are considered to illustrate the obvious—but not often thought of—components of an appeal. The first is the time to prepare an appeal. On appeal to the Indiana Court of Appeals, this Court considers the written word for word account of the witness testimony. In addition, it considers exhibits. This requires the proceeding to be typed out - witness by witness. Thus, it takes about three months for this to ...
May 19, 2016Adam Hayes
Almost every final decision of an Indiana trial court can be appealed to the Indiana Court of appeals by perfecting the appeal and “briefing” the matter. Appellate attorneys often spend considerable time drafting or “framing” the issues so they bring attention to the question of law and fact at hand. The Court of Appeals central role is not to re-weigh (or second guess a trial court’s decision) on how it viewed facts. Instead, it looks at how the trial court applied the facts to the law. Thus, a good appellate issue should be combination of both. First, an appellate issue should ...
January 26, 2016Adam Hayes
If you are reading this blog, you probably have an interest in appeals in the Indiana Court of Appeals or Indiana Supreme Court. The life blood of an appeal is the “brief,” which is basically a story that tells the important facts, sets out the law, and why the litigant believes the trial court was (in)correct. Obviously, the “argument” section of the brief pulls it all together. However, let’s face it. We live in a complex world. The best story (i.e., appeal) may fail because it set forth in an understandable way for the reader, the judges on higher courts or, ...
September 10, 2015Adam Hayes
In the course of civil litigation, there are many court orders. However, only one is a final order that can be appealed. There are two ways a court may issue a final order. One way is issue a general judgment, which can be a sentence or a few sentences. The other way is special findings. Special findings are lengthy in nature and demonstrate which facts the court relied upon and which law it applied in making its ruling. Special findings, being so detailed, make it easy for the parties to understand why the court ruled as it did. This also shows ...
August 19, 2015Adam Hayes
The “argument” section of an appellant’s brief is the life-blood of every appeal. This blog explores some of the key aspects of sound argument drafting. Taking the complex facts of life and applying the law is a daily challenge for lawyers. However, this task becomes more difficult when it involves an appeal and controlling standard of review. The standard of review may limit what facts and laws can be argued as set forth in the Indiana Rules of Appellate Procedure. This limits how the higher court reviews any potential errors made by a trial court. The first part of the argument is ...
July 15, 2015Adam Hayes