“Can’t We Just Appeal?”— When (and When Not) to Seek an Appeal

Let’s say a trial court or jury just made a decision with which you disagree.  Your next question likely will be, “can’t we just ‘fix’ it on appeal?”  Unfortunately, the answer often is “no.”

Generally, our appellate courts, consisting of Indiana’s Court of Appeals and Supreme Court, are courts of review.  This means they do not decide the outcome of disputes in the first place; rather, they decide whether an issue was correctly decided.  Their job is similar to that of the replay officials in an NFL game.[1]  Just as an NFL referee’s initial call might be overturned only where there is “indisputable evidence” the original call was incorrect, our appellate courts similarly are bound by what are known as “standards of review.”  Think of a standard of review as a lens through which an appellate court must review a dispute.  And, those lenses vary, depending on the type of issue being reviewed.

As an initial matter, our appellate courts will not assess witness credibility or reweigh evidence.  As our Supreme Court has made clear, “[w]hen reviewing a claim of insufficient evidence, we do not reweigh evidence or judge the credibility of witnesses.  We affirm a verdict when, considering the probative evidence and reasonable inferences, a reasonable jury could have arrived at the same determination.”[2] In other words, when a trial court or jury decides the credibility of witnesses or the believability of a given statement, our appellate courts generally decline to revisit that decision.

The reason for this is simple:  our appellate courts do not have the opportunity to see the courtroom.  Unlike a trial court or jury, our appellate courts review cases based on a cold, paper record.  Our appellate courts thus cannot truly assess witness credibility or weigh evidence; they simply do not have the benefit of observing a witness’s shifty eyes, slumped posture, or boastful voice.  It is much like the difference between reading a movie script, versus actually seeing the movie where the viewer has the benefit of the soundtrack and special effects.[3] 

On the other hand, our appellate courts can, and do, review questions of law de novo (“anew”).  As our Supreme Court has noted,

[W]here the issue presented on appeal is a pure question of law, we review the matter de novo.  Appellate courts independently, and without the slightest deference to trial court determinations, evaluate those issues they deem to be pure questions of law.  A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, nor the consideration of credibility questions for its resolution.[4]

This means that an appellate court need pay no deference to the trial court’s decision as to a question of law, and can effectively step into the shoes of the trial court to re-decide the issue, if necessary.  An example of a common scenario where an appellate court may review a decision de novo is an appeal from a motion for summary judgment.

One more question you may have is, “can’t we just take this to the Supreme Court?”  There too, the answer, unfortunately, often is “no.”  While you generally have an absolute right to appeal most judgments to the Indiana Court of Appeals, you generally cannot appeal directly to our Supreme Court, except in limited circumstances.  Instead, the most common method of bringing a dispute before the Indiana Supreme Court is by asking our Supreme Court to grant “transfer” after<after< i=””> the Indiana Court of Appeals has decided an appeal.  However, our Supreme Court is quite selective about which cases it decides to order “transferred” from the Court of Appeals, and it generally will do so only when:  (1) there is a conflict between Court of Appeals decisions; (2) a Court of Appeals decision conflicts with a Supreme Court decision; (3) a Court of Appeals decision conflicts with federal appellate law; (4) the Court of Appeals has decided an important question of law or a case of great public importance on which our Supreme Court should weigh in; (5) a Court of Appeals decision has correctly decided existing precedent, but that precedent should be clarified, modified, or changed; or (6) a Court of Appeals decision has “gone rogue” by so significantly departing from accepted law or practice that our Supreme Court feels a need to step in.  Aside from these situations, our Supreme Court generally will not take a case.[5]  Needless to say, these situations do not arise often.</after<>

The moral of the story is that an appeal generally should not be viewed as a “second bite at the apple.”  While there certainly are instances where an appeal is warranted, discretion often is the better part of valor.  In the end, if you are considering appealing from a judgment, we recommend consulting with your attorney to examine your options.  And, you may wish to seek a second opinion from an attorney who was not involved at trial, because he or she may provide a fresh perspective which often is helpful in pursuing an appeal. 



[1] See History of Instant Replay, NFL Football Operations, https://operations.nfl.com/the… (last visited February 25, 2018).

[2] Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 521 (Ind. 1993).

[3] See Love v. State, 61 N.E.3d 290, 299 (Ind. Ct. App. 2016) (Pyle, J., dissenting), vacated on transfer by 64 N.E.3d 1207 (Ind. 2016) and 73 N.E.3d 693 (Ind. 2017).

[4] Bader v. Johnson, 723 N.E.2d 1212, 1216 (Ind. 2000).

[5] See Ind. Appellate Rule 57(H).

Justin O. Sorrell

Justin O. Sorrell


Author Justin Sorrell

Author Justin Sorrell is an experienced litigator who represents and advises business clients in many types of disputes in federal and state courts across Indiana. He regularly defends employers in lawsuits including wage and retaliation claims, trade secret and confidentiality claims, non-competition and non-solicitation covenants, and breach of contract claims. Additionally, Justin has experience in defending claims involving construction-related commercial property damage, products liability, insurance coverage, collections, and appeals, and he has served as local counsel in federal and state courts across Indiana. He defends employers before the Indiana Worker’s Compensation Board, and has experience in other business-related areas, including bank loan transactions, loan work-outs, and bankruptcy. He also has significant experience in discovery of electronically-stored information (“ESI”), and advises clients on how to maximize value and minimize expense. 

He is a problem-solver, and seeks creative solutions to his clients’ issues while emphasizing the business impact of litigation choices to help guide his clients’ decision-making. When an amicable resolution is not possible, he aggressively and diligently pursues his clients’ interests.

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Posted  March 05, 2018 by Justin O. Sorrell