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Indiana Court of Appeals Judicial Retention Q&A

October 13, 2010
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Indiana Lawyer posed 11 questions to the five Indiana Court of Appeals judges who are facing retention this year – Judges L. Mark Bailey, Melissa S. May, Margret G. Robb, Cale J. Bradford, and Elaine B. Brown. Click on the question links below to jump to specific questions or read the Q&A in its entirety below.

Why should voters retain you on the court?

What do you view as your biggest accomplishment been since taking the appellate bench?

Describe where you see Indiana’s legal community. The biggest strength? Most significant weakness?

What is your approach to issues of first impression and how precedent should be viewed, particularly when it involves other Court of Appeals panels who may have decided on an issue in the past?

What have you observed changing on Indiana’s judiciary since taking the bench, and how has that impacted how you judge?

Describe which court rulings or other judicial activities best illustrate your work on the court during this past 10-year term, or since you’ve been on the bench?

Transparency has been a big issue for the judiciary in recent years, from the topic of cameras in the courtroom, how statewide case management systems are being implemented to increase public access, and how the appellate courts webcast and hear arguments on the road throughout the state. Where do you think Indiana stands on this front, and what do you think about how this is all happening? What needs to change, if anything?

Merit selection has been a hot topic in recent years, with legislation proposed more than once that would have changed how state trial and appellate judges are selected. That’s also been an aspect of the more recent court reorganization plan, which examines the issues of centralized funding and a more uniform method of judicial selection for the state. What are your views on these issues?

Significant happenings have been occurring at the appellate level in terms of a new statewide Case Management System, which was first introduced in pilot counties late last year. What impact do you see this having on the state’s legal system and practicing attorneys?

In recent years, we’ve seen legislative proposals that would have added a new sixth panel to the Indiana Court of Appeals? What do you think about this issue, and explain why you think it is or is not needed?

Do you have any suggestions for lawyers who argue or brief cases before you?

 

Indiana Lawyer: Why should voters retain you on the court?
Bailey, age 53: A judge is responsible for administering the law fairly and impartially.  I have conducted my personal and professional life in a manner that allows me to maintain my independence as a judge so that I can more appropriately deal with the controversies that the citizens have entrusted me to resolve.  Additionally, I believe that experience is important.  My experience includes service on the Court of Appeals for 12 years and on the trial bench for 7 years.  Prior to that, I was a trial practitioner and an administrative law judge.

Bradford, age 50: Since joining the appellate bench, I have consistently provided a common-sense approach in applying the law to the factual scenarios presented to our court.  While doing this, I have steadfastly respected the role of the trial court as well as the authority of other branches of government.

Brown, age 56: I have a strong background in public service having served over 15 years as a trial judge prior to being appointed to the Court of Appeals in 2008.  I was in private practice for 11 years and have experience in a wide variety of areas of the law.  I approach my work extremely conscientiously with the goal of doing justice to the parties and correctly interpreting the law.  I recognize that each case is extremely important to the litigants involved and believe that is reflected in my work.

May, age 53: Voters should retain me on the court because my goal as an appellate judge is to decide each appeal with the best-reasoned decision that can be produced in a timely fashion. I recognize that every case is vitally important to the litigants and they deserve to receive an opinion from us that renders the most just result possible in light of the facts, procedural posture, and precedent presented to us.  As I rule on cases, I respect the legislature’s authority to create statutory law, and I remain cognizant of the trial court’s superior ability to determine the credibility of live witnesses and assign weight to testimony.
I also hope voters would retain me on the court because of the active role I have taken – as a law school teacher, CLE faculty, a member and chair of professional committees, a speaker, and a participant in oral arguments across the state – in reaching out to the public and the legal community.  I am, of course, a strong believer in the importance of the appellate system.  Because our Indiana Supreme Court selects which cases it will review, our court is almost always the last place for a citizen to turn to correct wrongs or vindicate an individual’s legal rights.  So I believe an important part of being a judge on the Court of Appeals of Indiana is making sure Indiana’s citizens are aware of the opportunities the appellate system offers and of the work that we do.

Robb, age 62: When I joined the court I brought a broad background: 20 years of general practice, Chapter 11, 12 and a standing panel 7 bankruptcy trustee, work as a registered family and civil mediator; public defender. These experiences keep me focused on the fact that courts and its laws must place people first. When I decide cases, I am guided by the role of the three branches of government, the decisions made by the legislature, judicial precedent and not by my personal feelings.

When I applied to be appointed to the Court of Appeals, I promised a concern for the people of the State of Indiana and I have kept that promise. I have a strong work ethic; I have participated in numerous activities as shown in my biography on the retention website, within the judiciary, the legal community, and the general community that benefit and bring honor to the state. After my term as a member of the Indiana Board of Law Examiners, I received an ongoing appointment to the American Bar Association Committee (recognized by the U.S. Department of Education) that accredits all the law schools in the country. This impacts not only Indiana but the entire nation’s judicial system.

IL: What do you view as your biggest accomplishment been since taking the appellate bench?
Bailey: Justice delayed is justice denied.  To date, I have authored over 2,000 majority opinions, striving in each instance to render well-reasoned decisions in a timely manner.  In addition to my job as a judge, I have served in numerous leadership roles on behalf of the bar and judiciary.  Most notably, I was the founding chair of the Indiana Pro Bono Commission.  Currently, I serve as vice chair of the Indiana Supreme Court Committee on Rules of Practice and Procedure, as an elected member of the Indiana Judges Association’s Board of Managers, as a member of the Judicial Education Committee, and as chair of the court’s case management committee.

Bradford: In addition to accomplishing my core duties, I have continued to involve myself with system-wide issues such as the development of the judicial retention website, www.in.gov/judiciary/retention/, where voters can obtain information about judges standing for retention including reading their opinions and viewing their oral arguments.

Brown: I believe I have accomplished what is at the heart of being a judge on the Court of Appeals, which is writing well-reasoned opinions that correctly interpret the law and accurately address and resolve the issues raised by the parties in each appeal in a timely manner. Ancillary to that, I believe I have made positive contributions to the legal community and to Indiana’s citizenry at large by serving as a speaker and panelist at various legal conferences and seminars, participating in many traveling oral arguments throughout the state, serving on several committees of the Indiana State Bar Association and of the Indiana Judicial Conference, mentoring in an Inn of Court, becoming a fellow of the American Bar Foundation, judging moot court competitions, and speaking to outside groups about the work of the court.

May: I believe my biggest accomplishment is the active role I have taken in making our legal system more accessible to all of Indiana’s citizens.  Three examples of my active role are my work with the Pro Bono Commission, with the civil jury instruction committee, and on traveling oral arguments.
I was honored when our Indiana Supreme Court asked me to chair the Indiana Pro Bono Commission.  I take my work for that committee very seriously because I believe wholeheartedly in the value of pro bono work both for the citizens who need legal services and for the lawyers who benefit from the opportunity to advance their lawyering skills and to help people.  There are 14 district offices that match citizens in need of assistance with lawyers willing to work on a pro bono basis.  With the downturn of the economy, the commission secured the assistance of experts throughout the state and developed programs to train hundreds of lawyers to help Indiana homeowners facing foreclosure.

For the last 10 years, I have served on the civil jury instruction committee, which is responsible for drafting pattern jury instructions for civil trials.  Recently, the committee has worked hard to translate all of our civil jury instructions into “plain English” that will be more easily understood by jurors than the traditional legal jargon.  In October 2010, members of that committee, including myself, will conduct nearly a dozen seminars for lawyers across the state to explain these new instructions.  Our hope is that the instructions will make it easier for judges and lawyers to explain to jurors their role as finders of fact and how to apply the law to the facts they find, and to enhance the jury’s ability to assure litigants obtain justice.  

In honor of the 200th anniversary of the creation of Indiana’s Court of Appeals, we decided to conduct oral arguments at locations around the state, so that citizens could experience part of the appellate process and have an opportunity to talk to the judges in person.  The program was so successful that we have continued to conduct arguments at high schools, colleges, and other public locations.  To date, I have taken part in 86 of these oral arguments, in locations all over the state: Angola to Evansville, Terre Haute to Richmond, Hammond to Clarksville, and 80 places in between.  I believe these traveling arguments are a wonderful opportunity for us to teach Hoosiers more about our legal system and the appellate process.

Robb: It is difficult to identify the most significant accomplishment: significant to me, the court, citizens of the State of Indiana. “Significance” is in the eyes of the beholder. More often, it is a collection of seemingly small accomplishments that add up to having a “significant impact.” Often, it is a case where the whole is greater than the sum of its parts. As an example, I was recently invited to be the luncheon keynote speaker at a Michigan, statewide, appellate conference on civility and collegiality. It was significant because of what it said about Indiana’s judiciary and legal community. We have an enviable reputation among our sister states for fairness, thoughtfulness and collegiality, and Michigan, for one, wanted to learn what our “secrets” are because our reputation is rightly seen as flowing from our court’s motto “Equal Justice Under the Law.” If there is a “secret” it is a case of dedicated individuals who have a mutual respect for each other and the work of the court and who put forth a great deal of effort to achieve common goals.

On a personal level, I am proud of the part I play in this system by mentoring law students through participation in activities at the law schools, supporting and teaching the clerks, interns and externs who work in my chambers; participating in the numerous bar association activities, and chairing and lecturing at seminars and panel discussions. The annual continuing legal education seminar which I organize and have chaired for over 10 years brings together 600 legal practitioners to share their experiences and knowledge. My goal is to be a part of the efforts that ensure that Indiana has the best legal system possible.

IL: Describe where you see Indiana’s legal community. The biggest strength? Most significant weakness?
Bailey: Indiana’s legal community, like the state, is at a crossroads.  We have a strong history of collegiality, competence and professionalism.  The institutions that support the work of our bar are to be commended for their efforts in moving these ideals forward.  We need to maintain a constant vigil, however, to ensure that these characteristics are instilled in future generations of attorneys.  Therefore, it is imperative that we continue our participation in mentoring programs, leadership series and educational opportunities that further these ideals – ideals that I believe are necessary for the future success of our profession and for the benefit of citizens who look to the law for resolution of their disputes.  

Bradford: The biggest strength of our legal community is what lawyers and judges give back to the public and profession.  Examples are pro bono representation, educational endeavors such as law day at Indiana schools, Constitution Day at the Statehouse and support for lawyer and judicial wellness as volunteers for organizations such as JLAP.  I believe our legal community needs to continue its efforts to include more lawyers and judges in these types of activities.

Brown: I believe Indiana’s legal community is highly respected nationally. The appellate courts are known for high-quality opinions. Our trial court judges have a well-deserved reputation for dealing effectively with ever increasing case loads and diminishing resources.  The bar is highly accomplished. We have acclaimed continuing legal education programs. I believe all of us have worked together to promote a high degree of professionalism, collegiality, and congeniality among our members. I believe a weakness is the cost of litigation including the time it takes to litigate a case from start to finish.

May: Our greatest strength to me is the high quality of legal talent in our state.  Our attorneys and our judges work very hard to provide the citizens of this state with the best legal service possible.  Many trial and appellate judges, including myself, teach law school and/or continuing education courses because we understand that having better-educated lawyers results in better-represented litigants, less erroneous legal-proceedings, and less stress on our over-scheduled trial courts. Our most significant weakness is failing to publicize the positive acts of lawyers.  It is no secret that some Hoosiers have a negative view of lawyers generally, or the judicial system specifically, but perhaps their opinions would improve if they knew about the number of hours lawyers spend each year engaged in pro bono services, the number of hours some government lawyers work for relatively small paychecks, and the number of lawyers who serve their communities as local politicians or on boards of non-profit organizations, religious institutions, or educational institutions.

Robb: Indiana’s judicial community has a well-deserved reputation for fairness, impartiality and timeliness in its decision making. It is diverse and inclusive. The judges are active in the legal community and their home communities. We strive to create an ever improving legal system by participating in continuing legal education for attorneys throughout the state and work to develop programs that foster a better understanding of the legal system for the benefit of all our citizens. One way we achieve this goal is by the numerous traveling oral arguments that we conduct throughout the state. Indiana’s judicial community is not content to live on its past accomplishments but is always striving to make our state a better place.
While the national media has been known to criticize courts and the way the judges fulfill their duties, it is important to note that Indiana’s judiciary has not been included in those critiques.

A possible weakness the court faces is the difficulty of expressing the many positive qualities of the court and its members, its reputation throughout the country, and its efforts on behalf of the legal community and citizens of the state without sounding pompous or self-serving or just “tooting one’s own horn.” I am very proud of the court and my colleagues who I see working every day to keep Indiana strong.

IL: What is your approach to issues of first impression and how precedent should be viewed, particularly when it involves other Court of Appeals panels who may have decided on an issue in the past?
Bailey: As a member of an intermediate appellate court, our primary concern is to consider the issues raised on appeal and to determine whether an error was committed that affected the outcome of the case.  On those occasions when a new issue is presented, we look to secondary authority as well as related settled Indiana law to help resolve the matter.  When another panel of the court has considered an issue, that decision provides guidance on how to resolve the issue.  Yet each panel decides the case based upon then-existing law.  Where there is conflict between panels, the conflict can serve as an invitation to the Indiana Supreme Court to grant transfer and provide the precedent moving forward.     

Bradford: I approach issues of first impression with common sense which is the bedrock of our laws.  I give other panel decisions of the Court of Appeals thorough consideration and respect but I am not bound by these decisions.  As an intermediate appellate court judge, I do employ stare decisis and follow decisions from higher courts.  I have on rare occasion suggested our Indiana Supreme Court revisit precedent for consideration of its application in today’s society.   

Brown: Cases of first impression often involve statutory interpretation wherein legislative intent must be determined. Other Indiana cases, while not directly on point, may nonetheless be instructive in the analysis.  A survey and analysis of caselaw from other states that have dealt with the issue, or a similar issue, is also oftentimes persuasive.

May: We do not recognize parallel stare decisis on our court, so it is not unusual to have panels decide the same issue differently.  This is not always a bad thing, as it may encourage us to produce opinions containing a more detailed analysis of important issues than would be available if we had to follow our other panels’ decisions.  In addition, it provides our Indiana Supreme Court with multiple well-reasoned decisions to consider on transfer, rather than just one.  As for issues of first impression generally, I think it’s very important to be sure it really is “first impression” before we write on a blank slate.  Cases sometimes come before us that, because of unusual facts, appear to be issues of first impression.  When that happens I think it is important that we step back and see if we can identify an existing legal principle that will take into account the interests of all parties, lead to a fair result, and provide a sound basis for deciding similar cases that will arise in the future.

Robb: First impression implies that no other court in Indiana has been faced with the issue now before the court.  However, when an issue presents itself and there is no Indiana Supreme Court decision on point, there is a systematic approach. Words have meaning and carry weight. Has the court previously reviewed similar words in other contexts?  If the question relates to a statute, has this or similar statutes been analyzed in the past? How do the facts of this case differ from cases that have similar, although not identical, issues and the impact on the resolution? Can the meaning the legislature intended be discerned from the greater language of the statute and amendments to the statute over time? Has the legislature added this provision in response to a prior case? The panel deciding the case is comprised of three judges who meet, deliberate, and discuss the proper resolution. The court is a thoughtful, contemplative body that synthesizes these and other germane aspects of an issue to arrive at an opinion.

IL: What have you observed changing on Indiana’s judiciary since taking the bench, and how has that impacted how you judge?
Bailey: I have observed that, over the 20 years I have been a judge, the level of commitment and professionalism has continued to improve.  Today, those that are privileged to serve understand the need to stay current on the law and practices associated with administering the law in a fair, timely and impartial manner.  Best practices are strongly encouraged and taught at our annual meetings.  Continuing education is mandated and, most recently, the minimum CLE hourly requirement for judges has been increased.  

Bradford: Increased filings, limited resources and jail overcrowding have created an environment where judges must be optimally efficient with their time and that of the court.  Judges must continue to be at the forefront of developing methods and technologies which balance justice in each case against overcrowded dockets and jails.

Brown: Although appointed to the Court of Appeals only 2 years ago, I was first elected to the trial court bench in 1986.  Since then, technology has done much to enhance the efficiency of the work of the courts from case management systems accessible via the Internet to daily posting of decisions on our website to webcasting oral arguments. Our profession has benefited greatly from an increased emphasis on ethics, professionalism, and quality continuing legal education programs. Admission to law schools has become increasingly competitive as has the job market, and new graduates are generally coming out better prepared with practical work experience, whether paid or volunteered, on their resumes.

May: I think the primary change I have observed is increased demands on the judiciary, primarily the increased number of filings of all different kinds.  For example, our court has seen an increase not only in the number of appeals filed each year, but also in the number of motions filed each year.  The increased demands have forced me to learn to work more efficiently because an increasing workload cannot justify decreasing the quality of our decisions or the explanation and analysis we provide in each decision.

Robb: With the growth and impact of the Internet, there is a much greater emphasis placed on transparency. The court not only hears more oral arguments than in the past, but all the oral arguments held in our courtroom are webcast and archived so they may be viewed anywhere at any time. The court has undertaken a program of holding oral arguments throughout the state, at law schools, colleges, high schools, independent living facilities, and business and community organizations. These oral arguments are identical to the ones held in Indianapolis and are accessible to Indiana’s citizens -- an example of transparency that is a model for other states to follow. Moreover, at the conclusion of the oral arguments, attendees are given the opportunity to ask questions of the judges and attorneys in order to have a better and clearer understanding of the process, the court and legal system.

Another effort toward greater transparency was the decision several years ago to make all our opinions accessible on the Internet. Originally only opinions that stood as precedent and were citable (called “For Publication” opinions) were on the Internet. Now, all opinions, including those which are informational (called “Memorandum Decisions”) are posted daily on our website.

The court has more interaction with the legislature both on a personal and professional basis so that mutual understanding and respect of each others’ role is enhanced.

In recent years the court has been able to do more with fewer resources as we do our part for the state’s budget constraints. Although our workload has increased, we have become even more efficient, enhancing a reputation as one of the timeliest courts in the nation while holding fast to our goal to write complete and full opinions in every case.

Last, we have made our court website very “user friendly” so that all aspects of the court are available to the public.  As part of that effort, there is a retention website that focuses on the judges up for retention election, our background, cases, oral arguments, and activities can be reviewed by the public at any time.

IL: Describe which court rulings or other judicial activities best illustrate your work on the court during this past 10-year term, or since you’ve been on the bench?
Bailey: Each case I work on with my colleagues is, to the parties involved, the most important case that I have decided during my tenure on the court.  The breadth of issues presented in the cases I have authored since joining the court precludes identifying any particular decision that best illustrates my work.  I can only trust that my opinions have provided clarity and guidance to the litigants and litigators involved and to the bench and bar.  For particular cases, I would direct you to our website.

Bradford: As an appellate judge, I have written hundreds of judicial opinions and voted on hundreds of appellate cases.  As a trial judge, I presided over hundreds of jury trials, both criminal and civil, and held thousands of hearings, pre-trial conferences, and sentencings.  I have also consistently involved myself in activities dedicated to the betterment of our system of justice including:  efforts toward the alleviation of jail overcrowding, reformation of juvenile justice, a statewide automated case management system, docket management techniques, financial resource development, legislative initiatives to amend certain laws and add judges and magistrates, the amendment of local court rules, creation of a judicial retention website, the promotion of mediation at the appellate and trial court levels, speaker and instructor on the law, judicial committees, joint attorney-judicial committees, Inns of Court, and Indy Bar and Indiana State Bar Association committees and projects.  I had the honor of serving as chairman of this year’s Indy Bar Bench Bar Conference.  While serving on the Marion Superior Court, I was twice elected presiding judge by my peers and was twice elected as chair of the Marion County Criminal Justice Planning Council.  I currently serve as the presiding judge of the Indiana Court of Appeals, Second District.

Brown: Every appeal is significant, at least to the parties involved, and no one opinion or one activity on its own best illustrates my work since coming on the court.  The court has a retention website at www.in.gov/judiciary/retention/ which contains biographical information, explains the work of the court, has links to all opinions I have authored or voted on, and provides access to videos of some of the oral arguments in which I have participated.

May: Because our jurisdiction is so broad and because the number of opinions we produce is so great, I find it impossible to identify specific rulings that would be illustrative of the opinions I have authored in the last 10 years.  But I hope, and expect, that my work is characterized by sound analysis well-grounded in legal precedent, and by fair and thoroughly-explained results.  I would urge people to visit the court’s retention website www.in.gov/judiciary/retention where my opinions can be viewed.

Illustrating my work on the court also might be done by looking at my other judicial activities.  I have been honored to serve on the civil jury instruction committee and also as chair of the Indiana Pro Bono Commission.  I also serve as an adjunct faculty member for the trial practice course at the Indiana University School of Law – Indianapolis.  All of these endeavors result in better-educated lawyers, which, in turn, should result in better-represented litigants and should help our busy trial courts cope with their calendars. We have also made a substantial amount of information available through the court’s website, which can be found at “www.in.gov/judiciary/appeals/”.  There, citizens can access a calendar of upcoming oral arguments, watch prior oral arguments, connect to the online docket of our Clerk’s Office, learn about the appellate process, read biographies of our judges, find information about filing appeals and proceeding pro se on appeal, and read our For Publication and Memorandum opinions.  Also available prior to this year’s election is a section of our site that provides general information about judicial retention elections and specific information regarding each judge who will be on the ballot this fall.

We further encourage our judges to speak regularly at public functions and to teach lawyers, law students, and others in university classes or continuing education courses.  When we help our citizens better understand the function and operation of the appellate court system, we ultimately give them more confidence in the justice system as a whole.

The Court of Appeals of Indiana is devoted to making the work that we do as transparent as possible for the citizens of Indiana.  There certainly may be additional steps we could take in the future to provide more information and education to Hoosiers, but we are proud of the progress we have made and of the fact that Indiana’s courts are leaders in this movement.

Robb: I would encourage people to review the court’s retention website www.in.gov/judiciary/retention/. It contains information about our background, education, families, activities, writings, our oral argument demeanor, and opinions of others. It will, hopefully, provide a good picture of who I am and what I represent. It is difficult to pick out one thing that illustrates who I am in as much as I am the product of a lot of little efforts and accomplishments that add up to who I am as a person, a wife and mother, a judge, and a member of a community at large. I am proud to chair the Supreme Court task forces on family courts and on local trial rules and have recently authored two book chapters, one on Indiana’s juvenile court history and one on a biography of a former Indiana Supreme Court Justice, Leonard Hackney, to name a few of my activities.

It is, however, difficult to select a single ruling that best illustrates my years on the court. I would suggest that the totality of my work ethic and approach to decision making gives a clear picture of my dedication. One of the principles that I believe in, is the recognition that, to the litigant, theirs is the most important case I will ever have. I believe that not only do my own personal values dictate this posture, but it is inherent in the Professional Code of Ethics. Each case deserves the time and attention that recognizes to that litigant, this case is not simply a routine matter.  I am proud to me a member of this group and hope that after viewing the site, you too will be proud that we are a part of Indiana’s judiciary.

The appellate judges decided to answer the remaining five questions jointly, providing one single answer as a group to each question.
IL: Transparency has been a big issue for the judiciary in recent years, from the topic of cameras in the courtroom, how statewide case management systems are being implemented to increase public access, and how the appellate courts webcast and hear arguments on the road throughout the state. Where do you think Indiana stands on this front, and what do you think about how this is all happening? What needs to change, if anything?
Judges: Indiana is at the forefront of efforts to make the judiciary more transparent.  A notable development over the past 10 years has been that both our Indiana Supreme Court and our court webcast all of the oral arguments that are heard in our courtrooms.  It is now possible, and even convenient, for citizens to see for themselves what the appellate courts do and how the functions of the judiciary are executed.  In addition, our court travels all across the state holding oral arguments in high schools and colleges, allowing students and the public at large to see a real oral argument and to better understand the legal process.  This avenue of taking the appellate process directly to the citizenry is particularly valuable.  We answer questions from our audience about our court system, how we are selected and how our courts work with the other branches of government.  During the last 10 years, the number of oral arguments has steadily increased, and appellate oral argument is no longer the rarity that it once was.  

We have also made a substantial amount of information available through the court’s website, which can be found at “www.in.gov/judiciary/appeals/”.  There, citizens can access a calendar of upcoming oral arguments, watch prior oral arguments, connect to the online docket of our Clerk’s Office, learn about the appellate process, read biographies of our judges, find information about filing appeals and proceeding pro se on appeal, and read our For Publication and Memorandum opinions.  Also available prior to this year’s election is a section of our site that provides general information about judicial retention elections and specific information regarding each judge who will be on the ballot this fall.  

We further encourage our judges to speak regularly at public functions and to teach lawyers, law students, and others in university classes or continuing education courses.  When we help our citizens better understand the function and operation of the appellate court system, we ultimately give them more confidence in the justice system as a whole.

The Court of Appeals of Indiana is devoted to making the work that we do as transparent as possible for the citizens of Indiana.  There certainly may be additional steps we could take in the future to provide more information and education to Hoosiers, but we are proud of the progress we have made and of the fact that Indiana’s courts are leaders in this movement.

IL: Merit selection has been a hot topic in recent years, with legislation proposed more than once that would have changed how state trial and appellate judges are selected. That’s also been an aspect of the more recent court reorganization plan, which examines the issues of centralized funding and a more uniform method of judicial selection for the state. What are your views on these issues?
Judges: The issue of centralized funding for state courts is a matter best left to the Supreme Court which has administrative responsibilities of the trial court in consultation with the legislature. The proposal to elect appellate judges has been criticized by many different sources who observe that on an appellate level, elections force judges to raise large sums of money from the very people who regularly appear in the court. At its worst, it fosters dissension within and outside the court as candidates campaign, voicing promises on issues either raising the specter of bias or prejudging a case and is antithetical to the hallmark of a quality judiciary - “equal access to justice.”

The appellate merit-selection system that has been in place in Indiana for 40 years has resulted in the selection of judges and justices who have earned superior reputations, both nationally and within the state, for the quality of their decisions and for their impartiality, fairness, integrity, and hard work.
Last, it is important to remember that under the retention system, voters have the right and responsibility to participate in the election. On November 2, 2010, the names of the judges subject to retention will be on the ballot so that voters in Indiana may cast their vote.

IL: Significant happenings have been occurring at the appellate level in terms of a new statewide Case Management System, which was first introduced in pilot counties late last year. What impact do you see this having on the state’s legal system and practicing attorneys?
Judges: Under the leadership of our Supreme Court’s Judicial Technology and Automation Committee (JTAC), significant progress has been made toward the goal of equipping all Indiana courts with a uniform statewide case management system (called Odyssey) and connecting each court’s system to each other’s and with law enforcement, state agencies, and others who need and use court information.  As of Sept. 9, 2010, less than 3 years after first being installed in 10 pilot courts, Odyssey is managing the caseloads of 66 courts in 22 counties comprising more than 27 percent of the state’s caseload.  Additional courts are being added all the time.

Odyssey provides courts with the latest technology for managing its caseload.  Odyssey also provides clerks with sophisticated financial management tools to meet the many financial responsibilities imposed on their offices by law.  And because Odyssey is installed and maintained at JTAC's expense, it saves money for local property taxpayers.

Of particular significance to lawyers, access to information on cases in all of the courts using Odyssey is available in a single, instantaneous search over the Internet at no cost.

The Indiana Supreme Court and Court of Appeals are working to create a case management system at the appellate level which has like capabilities and thus will provide like benefits to lawyers.  Our appellate courts are also working diligently to bring E-filing to their dockets, thereby increasing efficiency and reducing costs for lawyers.

IL: In recent years, we’ve seen legislative proposals that would have added a new sixth panel to the Indiana Court of Appeals? What do you think about this issue, and explain why you think it is or is not needed?
Judges: We have watched with great interest as the General Assembly introduced bills to add a new Sixth District to the Court of Appeals in 2007 and 2009.  Last year, the bill passed the House and Senate and was sent to the Governor, who vetoed the measure, explaining that “[t]he addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today’s challenging fiscal environment.”  Although we recognize the need to balance efficiency and costs, whether or not a Sixth District is added is a matter entrusted to the legislature.  Thus, we remain neutral on the issue.  Ultimately, we are pleased to work with whatever resources the legislature provides.

IL: Do you have any suggestions for lawyers who argue or brief cases before you?
Judges: It is not possible to provide a comprehensive answer to this question as entire law school classes, continuing legal education programs, law review articles, and treatises are devoted to this topic.  With that caveat, the best oral arguments are conversations with the court.  Be clear and succinct. Look at each of the judges as you speak.  Always answer the question posed. If you do not know the answer, say so and offer to file a post-argument submission.  Address matters of fact and law that are contrary to your position and state why that adverse fact or authority is not determinative. As for briefing, know and follow the appellate rules.  Include in the record all pleadings, orders, and other documents necessary to the appeal.  Be sure to include the judgment or order appealed from in the appellant’s brief.  Make sure that any confidential information in exhibit volumes and appendices has been redacted.  Recognize that short, clear, and concise statements are often more persuasive than lengthier ones.  Avoid argument in the statement of the case and statement of facts.  Always cite to authority and develop a cogent argument as to each issue.  Avoid overstating the facts and the holding in your case citations, and avoid personal attacks on the trial court, opposing parties, and counsel.  As with oral argument, acknowledge any adverse fact and authority and set forth your argument why such fact or authority is not determinative of your case.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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