How a Case Moves from the Trial Court to the Appellate Court

Starting an Appeal

Once the trial court reaches a decision, the party who lost has the right to appeal the decision of the trial court. The right to appeal is a little different depending on whether it was a criminal or civil case. In a civil case, the losing party at trial has the right to appeal the judge's decision or the amount of money awarded for damages. In a criminal case, however, only the person who has been convicted of a crime has the right to appeal the conviction, the sentence, or both. That means the State of Indiana (the local county prosecutor always brings the charges in the name of the state) cannot appeal if it loses. To re-try a defendant who has been found "not guilty" is called double jeopardy, and this is unconstitutional. You can read about this in article 1, section 14 of the Indiana Constitution.

As you have already learned, an appeal usually goes from a trial court to the Indiana Court of Appeals. But, some cases go straight to the Indiana Supreme Court. These include criminal cases with a sentence of death or life in prison, and cases in which a trial court has declared an act of the state or national legislature unconstitutional. All other cases go first to the Court of Appeals.

Filing an appeal with the Clerk of the Courts

Once the appellate process begins, it follows strict rules created by the Indiana Supreme Court. The rules provide a specific timeline for each step in the appellate process. Filing an appeal even one day too late can mean no opportunity to appeal, so the office of the Clerk of the Supreme Court, Court of Appeals, and Tax Court (also called the Clerk of the Courts) lets people file their papers until midnight Monday through Friday. Filing appellate documents before midnight is commonly called Rotunda Filing, named for the beautiful stained-glass rotunda located in the State House. The police who work at the state capitol take papers filed after regular office hours. So it is very important for lawyers, and their clients, to know and follow the Appellate Rules.

This isn't that different from appeals you might make at home or at school. For example, imagine that you are supposed to finish your chores by Saturday morning in order to go to a movie Saturday night. If you finish them on Sunday instead, it's too late. No movie.

How do you begin the appeal process? In order to start an appeal you must follow two steps. First, you must give the trial court a "notice of appeal" within 30 days of the end of the trial. This tells the clerk of the trial court to start getting the trial court record ready to be looked at during the appeal.  The notice of appeal is the only document in the appellate process that is filed with the clerk of the local trial court. From this point forward, all other documents are filed with the Clerk of the Courts, located in the State House in Indianapolis.


Once the trial record (the written record of the trial court proceeding) is sent from the trial court to the Clerk of the Courts in Indianapolis, the second part of filing an appeal can get started.

The appellant (the person who lost at trial) files a brief with the Clerk of the Courts. This brief explains the legal errors the appellant believes were made during the trial that justify overturning the decision of the trial court. The appellee (the party who won at trial) then gets to tell its side by filing its own brief. Finally, the appellant is given the opportunity to file a reply brief in response to the arguments made by the appellee. Think of this as a debate that happens on paper instead of out loud. Remember that remote that we've been fighting over? As the appellant, you get the first try at convincing mom that brother was wrong when he decided in favor of your sister. Then your sister gets a chance to convince mom that your brother made the right decision. Finally, you get the last chance to talk before the final decision is made.

To keep all of these papers (the briefs) organized they are each assigned different color covers. The brief of the appellant always has a blue cover page, and the brief of the appellee always has a red cover page. After all of the briefs are filed with the Clerk of the Courts, the appellate process differs somewhat between the Supreme Court, the Court of Appeals, and the Tax Court.

Oral Arguments

Sometimes, the justices or judges may decide that they need more information about a case in order to make a good decision. If this happens, the court will schedule an oral argument. An oral argument is an opportunity for lawyers to speak to the panel of justices/judges and try to persuade the court to either change or affirm the decision of the lower court. In the Supreme Court, an oral argument can be scheduled before or after a decision is made about whether or not to accept the case.

At oral arguments, lawyers argue before the panel of judges and urge them to reach certain conclusions of law. Each side is usually given either 20 or 30 minutes to present their case. The appellant's side generally speaks first, the appellee's side follows, and the appellant's side usually gets a chance to speak again at the end. Though the judges may ask questions during the argument, no evidence is taken, and no witnesses are called. Only the lawyers are permitted to speak to the court. In criminal cases, the person who was found guilty is almost never present.

Each judge carefully studies the briefs, the written description of the case that each side turns in before the oral argument. Often the judges ask the lawyers questions about information in these briefs. Although the judges sometimes ask about the facts, the lawyers and the judges usually only talk about legal issues. The judges expect the lawyers to know how their case fits in with other cases that the court has decided in the past and with laws that the legislature has adopted. The judges may also question the lawyers about the possible effect that their decision in this case may have on similar situations in the future. For example, if someone wants the court to rule on the number of days kids must go to school each year, the judges might ask how it will effect student learning and school budgets.

Watching an Oral Argument. In Indiana, all Supreme Court oral arguments and some before the Court of Appeals can be watched live over the Internet. The arguments are then stored so that anyone can watch them at any time. Sharing oral arguments over the Internet provides an opportunity for the public to see the courts and the appellate process at work. Attorneys can also use the stored arguments as teaching tools for younger attorneys who may not be familiar with arguing before an appellate court.

If you happen to be in Indianapolis, you can come and watch the arguments in person. All oral arguments are open to the general public. You just have to be in your seat before the doors close! The Court's schedule is posted on its website:

If you would like to view a live or archived Supreme Court oral argument via the Internet, visit: Please also refer to the Visitor's Guide to Oral Arguments, especially if you are interested in attending oral arguments.

The Courts Decision

Once the judges or justices have reviewed all of the materials presented by the attorneys and conducted their own research into the law on this particular topic, they begin to draft an opinion. Who writes the opinion varies depending on the court. There is always a majority opinion, delivering the opinion of the majority of the court and their explanation of how that decision was reached, and sometimes there is also a dissenting or concurring opinion as well.

If some of the judges/justices agree with the decision but not for the same reasons, they may write a separate concurring opinion. The concurring opinion agrees with the decision but gives a different explanation for it. If a judge disagrees either with one section or even the whole opinion, that judge might write a separate dissenting opinion. The dissenting opinion explains why the judge disagrees with the other members of the panel about the case. Imagine you and a friend both like ice cream sundaes. You agree that sundaes are a great after dinner treat, but you like chocolate sauce and your friend likes butterscotch. So, your friend concurs with you that sundaes are good, but wants his to have a different topping. Another friend dislikes ice cream altogether, so he dissents from your support of sundaes as a good treat.

Concurring and dissenting opinions are usually just added at the end of the majority opinion. When the whole panel is done with the opinion, it is sent to the Clerk of the Courts, where the opinions are filed and become public record. The Clerk also posts a copy of the opinions on the Internet at

Does it cost anything to file an appeal?

Filing an appeal is not free. The appellant (the party who lost at trial and is seeking the appeal) has to pay a $250 filing fee to the Clerk of the Courts. If a party loses at the Indiana Court of Appeals and wants the Indiana Supreme Court to review the decision, that person must file a "petition to transfer" the case to the Indiana Supreme Court. To file a petition to transfer the case to the Supreme Court will cost another $125. The filing fee for the Indiana Tax Court is $120. And, of course, the parties in civil cases must pay their attorneys for their time. Attorneys' fees are by far the most expensive part of a civil appeal.


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