Riley Bennett Egloff Magazine July Magazine | Page 18

“Can’t We Just Appeal?”— When (and When Not) to Seek an Appeal By Justin O. Sorrell, RBE Attorney Originally Published March 2018 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. 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.” 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. On the other hand, our appellate courts can, and do, review questions of law de novo (“anew”). As our 18 Riley Bennett Egloff LLP - April 2018