The Shifting Sand of Appellate Rules

Hate that judge’s goofy decision? Thinking about an appeal? Don’t take too long to decide. Changes in Indiana law in 2012 now make it more cumbersome and more costly to begin an appeal.

I have noted before that Indiana has a relatively efficient appellate system compared to other states.  But appellate deadlines are often harsh and unforgiving.  The 30-day deadline to start an appeal cannot simply be extended at the discretion of the trial court.  Nor is a request to file a belated appeal frequently granted by the Court of Appeals.  With a change to the appellate rules in Indiana, parties will need to act more quickly and with more commitment (read: expense) to challenge the ruling of a trial court.

Indiana’s Appellate Rule 9 governs how an appeal starts.  Before 2012, the appeal began with the filing of a Notice of Appeal with the trial court.  (Here, “trial court” is simply a generic term for the State’s lowest courts – those at the local courthouse.  It does not necessarily mean that the judgment or order being challenged was the result of a trial.)  The Notice was a simple, straight forward document which, stripped of its legalese, stated:

1.    I think there’s a problem with the judge’s order;

2.    I want to appeal it to the Court of Appeals;

3.    The local clerk should prepare the file and make sure everything is in its place; and

4.    The court reporter should type up a transcript of what happened so we can show it to the Court of Appeals.

The most important thing about the Notice of Appeal, by far, was never the language of the Notice, or the precise wording.  It was the date stamp, the magic stamp that tells the world, for all time, that John Smith’s Notice of Appeal was filed on January 23rd, 20xx.  This preserved the right to appeal.

In criminal cases, the right to appeal may mean a lesser sentence, or overturning of a wrongful conviction.  In civil cases, it gave the trial court loser some additional leverage, however small, to continue to negotiate with the winner at trial, since the winner would at least have the continued cost of defending his win on appeal.  As a practical matter, this meant it was not unusual for civil cases not to be settled until after the winner subtracted the costs of defending his win on appeal from the judgment amount (along with some risk of losing the entire judgment on appeal), and finally came to terms with the loser.

So what’s changed?  Starting January 1, 2012, the following changes occur:

1.    The Notice of Appeal is to be filed with the Clerk of the Court of Appeals, not the local trial court clerk.

2.    The Notice of Appeal must now contain much more information about the case, such as a copy of the judgment being appealed; the reason for appellate jurisdiction; what parts of the record, if any, are not subject to public access; whether information was sealed, and if so, why part of the record was sealed; whether the party initiating the appeal is willing to consider mediation; a copy of any Motion to Correct Error, and other items.

The impact of these changes is to require more tasks to be performed prior to the filing of the Notice of Appeal.  No attorney relishes the idea of being asked to file a Notice of Appeal a day before the deadline expires.  Now, that type of last-minute work is more cumbersome and time-consuming.  As a result, it will become more expensive.

It has also been common in the past for the attorney who handled the trial to file a Notice of Appeal prospectively after her client loses, just in case her client wanted to pursue an appeal, or for “leverage” to continue negotiations.  If the client chose not to pursue the appeal, then few costs were incurred in filing the Notice, and the appeal could be ended easily.  Now, since the Notice is filed with the Court of Appeals, it also serves as the attorney’s appearance, representing to the court that the attorney is handling the appeal.   For trial attorneys who do not handle appellate work, this risks putting them “on the hook” for handling a matter for which they may not be experienced or qualified.

In the legal world, thirty days is not a particularly long period of time.  With the changes to Appellate Rule 9, it will doubtless feel even shorter for some unwary litigants.

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