BME Appellate Blog

Although most appeals are direct appeals, there are other types of appeals in the appellate courts of Indiana. Each general category of Indiana appeals is described below.

Regular Direct Appeal – A direct appeal proceeds directly from a final decision of a trial court or administrative agency to the Indiana Court of Appeals, or, in rare instances, to the Indiana Supreme Court.  A direct appeal is initiated by filing a notice of appeal in the trial court within 30 days after the trial court has made its ruling or entered a judgment after a trial. Once the notice of appeal is filed, the court clerk is required to prepare the trial court record containing all the court filings of the parties. Also, at this stage, the court reporter will prepare a transcription of the trial or hearing held in open court. Direct appeals may be filed in both civil and criminal cases.

Interlocutory Appeal – An interlocutory appeal is one that is made even before the trial court has reached a final decision. Consequently, interlocutory appeals usually involve a pretrial ruling by the trial court, such as on a pretrial motion by one of the parties. The appeal is based on a specific order or intermediate decision taken by the trial court. An interlocutory appeal may involve, for example, a motion for preliminary injunction seeking to stop specific conduct of a party before a full-blown trial, or a denial of a motion to dismiss the case, such as on jurisdictional grounds. Depending upon the nature of the ruling that is being appealed, an interlocutory appeal is either "of right" or "discretionary."  Permission to initiate a discretionary interlocutory appeal must be granted by both the trial court and the Court of Appeals before the appeal will be considered.  No such permission is needed for interlocutory appeals that are "of right." Under Indiana appellate law, an interlocutory appeal does not stay continuing proceedings in the trial court unless the trial court judge or appellate court orders otherwise.

Post Conviction Appeal – A post conviction appeal may be sought in criminal cases in certain circumstances by a person who has been convicted of a crime and wants relief from a sentence that is being served.  A post conviction appeal is not a substitute for a direct appeal from a conviction or sentence. Examples of post conviction appeals include the discovery of new evidence not known or available at the time of a trial or sentencing hearing.

Expedited Appeal - An expedited appeal arises in certain situations involving a Child In Need of Services (CHINS) or juvenile delinquency.  Under Indiana appellate law practice, the appellate courts also will give expedited consideration to interlocutory appelas and appeals involving issues of child custody, support, visitation, adoption, paternity, CHINS, termination of parental rights and other cases entitled to priority by court rule or statute. 

Indiana appeals are governed by the Indiana Rules of Appellate Procedure. Those Rules of Appellate Procedure establish the practice and procedure of the appellate courts in Indiana. Understanding and following those Rules requires a familiarity with certain legal concepts or definitions. Some common phrases important to Indiana appellate law practice include:

Administrative agency – Administrative agencies are departments of state government that administer certain laws as authorized by the Indiana General Assembly and executed by the executive office of the Governor. Examples of Indiana administrative agencies include the Worker's Compensation Board, Indiana Civil Rights Commission, Review Board of the Department of Workforce Development, the Indiana Utility Regulatory Commission and the Indiana Alcohol & Tobacco Commission.

Appellant's Case Summary – The Appellant's Case Summary refers to the appearance form that is filed by the appellant.  Under Indiana appellate law, the Case Summary must contain certain basic information about the case and the appeal. 

Clerk – This term generally refers to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court. The Clerk maintains all filings in the Indiana appellate courts.

Chronological Case Summary - The Chronological Case Summary is a record all Indiana trial courts are required to maintain that lists in chronological order all documents, orders, judgments and pleadings that are filed in each case.

Final judgment – As the name suggests, this is a document stating the court's final judgment.  To be final and the proper subject of a direct Indiana appeal, a judgment or order generally must resolve all claims in the case as to all parties.

Notice of Appeal – A Notice of Appeal is a short document that parties must file in the trial court to initiate an appeal.

Petition – Generally, there are two types of petitions filed in the Indiana appellate courts, a petition for rehearing asking the Indiana Court of Appeals to reconsider its decision, and a Petition for Transfer asking the Indiana Supreme Court to consider a case after it has been decided by the Indiana Court of Appeals.

Knowing basic appellate ruling and trial terms can help you better understand the appellate process.

When a party to a legal proceeding is unhappy with a decision or ruling made by a trial court or administrative agency, that party may seek a change in the ruling through an appeal.  An appeal is a process in which a party to a legal proceeding can challenge a ruling made by a trial court or administrative agency by asking a higher court to review the ruling and the proceedings leading up to the ruling.


Typically, appeals are made to an appellate court of proper jurisdiction, the name for which varies depending on the jurisdiction.  In Indiana, the appellate courts are the Indiana Court of Appeals and the Indiana Supreme Court.

An appeal is made to the Indiana Court of Appeals when an unfavorable ruling is made by a trial court.  In other instances, appeals may be made to a trial court, such as in the case where a litigant seeks review of an unfavorable ruling in an administrative proceeding.

The grounds for appellate review typically include errors of law, fact, or procedure.  The reviewing court looks into the proceedings in which the case appeared and makes a determination as to whether the proper rules and procedure were followed and whether the facts and evidence support the ruling.  Appeals may be taken from final judgments and also from interlocutory orders so long as the requirements of the appellate rules and procedures for interlocutory appeals are met.  A litigant may also seek review of an intermediate appellate court decision by appealing the decision to a higher appellate court. 

There are two types of appeals: an appeal as of right and a discretionary appeal.  An appeal as of right is one guaranteed either by the constitution (state or federal), by statute, or by any other legal principle.  An appeal as of right has mandatory review.  Discretionary appeals require permission and acceptance by the appellate court.  While a party may pursue an appeal pro se, in other words, without an attorney, the assistance of an Indiana appellate attorney is preferrable so as to ensure proper compliance with the the appellate rules and procedures and to assist with the complexities of the issues on appeal.  The appellate process is complicated and time consuming.  An appellate attorney may provide the necessary expertise in appellate law practice and may add efficiency and understanding to the process.

There are certain requirements for initiating an appeal, one of which is the filing of a Notice of Appeal pursuant to the appellate rules.  Another requirement is that of a filing fee of $250, with certain exceptions, such as an appeal on behalf of a governmental unit or an appeal prosecuted in forma pauperis, where no filing fee is required.  Otherwise, the filing fee must be paid to the Clerk of the appellate courts when the Notice of Appeal is served on the Clerk.  The Notice of Appeal must direct the trial court clerk to assemble the Clerk's Record and must designate all portions of the transcript necessary to present fairly and decide the issues on appeal.  If a transcript is requested, the party is responsible for payment of the cost of the transcript.  

An appellate brief is the legal document that is prepared for the appellate court presenting the legal arguments on appeal.  The initial brief is referred to as the brief of appellant, which fleshes out the arguments as to why the appellant believes that the ruling or decision being appealed is erroneous and why the appellate court should review the same.  The brief in response is the brief of appellee, which provides the arguments as to why the ruling is not erroneous.  The reply brief of appellant addresses arguments presented in the brief of appellee. The brief of appellant is your first opportunity to persuade the appellate court that there was or was not error and that the error was or was not harmful.  Therefore, it is critical that this brief be concise and focus on the issue(s) presented before the appellate court rather than getting wrapped up in emotional and subjective litany, which would only serve to distract from and diminish the arguments presented. 

Pursuant to the Indiana appellate rules, the appellant's brief must be filed no later than 30 days after (i) the date the trial court clerk or administrative agency issues its notice of completion of Clerk's Record if the notice reports that the transcript is complete or that no transcript has been requested; or (ii) in all other cases, the date the trial court clerk or administrative agency issues its notice of completion of the transcript.  See Indiana Rule of Appellate Procedure 45.  The appellee then has 30 days after service of the appellant's brief to file the brief of appellee. The appellant then has 15 days to file the reply brief. The appellant's failure to timely file the appellant's brief may subject the appeal to dismissal.  The appellee's failure to file timely the appellee's brief may result in reversal of the trial court or administrative agency on the appellant's showing of prima facie error.  see (Carolynda Applebury-Todosichuk v. Damian Stevenson).

The appellant's brief in Indiana appeals must have a front and back cover in blue conforming substantially to the form provided for in the Indiana rules of Appellate Procedure.  See Form #App.R. 43-1.  The brief must contain a detailed table of contents and table of authorities.  While the table of contents lists the specific sections of the brief, the table of authorities lists the specific cases, rules, statutes, and any other authorities cited in the brief.  The specific sections in addition to the table of contents and table of authorities that must be contained in the appellant's brief are:

Statement of Supreme Court Jurisdiction - This is required when an appeal is taken directly to the Supreme Court to briefly state why the Supreme Court has jurisdiction to hear the direct appeal.   

Statement of Issues – This describes, concisely and particularly, each issue presented for review.  

Statement of Case – This briefly describes the nature of the case, the course of the proceedings relevant to the issues on appeal, and the disposition of these issues by the trial court or administrative agency, in other words, the manner in which the issues were handled.

Statement of Facts – This describes the facts relevant to the issues on appeal.  The facts must be supported by specific references to the record on appeal, must be stated in accordance with the standard of review appropriate to the judgment or order being appealed, and must be in narrative form, preferrably in a chronological manner.

Summary of Argument – This is a critical portion where you present a summary of the arguments presented in the brief in a succinct, clear, and accurate manner.  

Argument – This is the section that details and fleshes out the arguments and contentions as to why the trial court or administrative agency committed reversible error.  The arguments must be supported by cogent reasoning and by citations to proper authorities.  The argument must include the applicable standard of review and each argument must have an argument heading.  

Conclusion - This must include a precise statement of the relief sought (what you want the appellate court to do) and the signature of the attorney or pro se party. 

Appealed Judgment or Order - The brief must include the opinion, decision, or findings of fact and conclusions relating to the issues on appeal, or in a criminal appeal, a copy of the sentencing order.

Word Count Certificate - An appellant's brief must not exceed 30 pages or 14,000 words.  If the word limit is being used, the appellant must certify that the brief complies with the word limit.

Certificate of Service - This is a certification that service has been made to the appropriate parties, specifying the date and means of service.

The appellee's brief must conform to the same requirements as the appellant's brief, except that it may omit the statement of Supreme Court jurisdiction, statement of issues, statement of the case, and the statement of the facts if the appellee agrees with the statements in the appellant's brief.  

A reply brief filed by the appellant must not raise any new issues.  This brief must contain a table of contents, table of authorities, argument summary, argument, conclusion, word count certificate (if needed), and a certificate of service.

The brief of appellant your first and perhaps only opportunity (if an appellee's brief is not filed or if oral argument is not granted) to state your case.  It is therefore critical to be persuasive, credible, and accurate.