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IndyBar Board Approves Rule Change Proposal

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The Indianapolis Bar Association Board of Directors approved a proposed rule amendment generated by the bar’s Appellate Practice Section at its Dec. 4 meeting. The rule amendment, which has since been submitted to the Rules Committee of the Indiana Supreme Court, amends Rule 65 of the Indiana Rules of Appellate Procedure, shortening the deadline to file a motion to publish in the Court of Appeals to 15 days and permitting the citation of Not-for-Publication (NFP) opinions as persuasive precedent. The proposal specifies that only NFP opinions issued after Jan. 1, 2015 be permitted to be cited.

The proposal originated in the Appellate Practice section but was also approved by the executive committees of the Criminal Justice Section and the Litigation Section earlier in 2013. The section members of all three sections were also surveyed to gauge opinions on possible changes, with 79 percent of respondents in favor of an amendment to the rule.

The documentation provided to the Rules Committee details the anticipated impact of the proposed amendment:

Deadlines for Motions to Publish Under Appellate Rule 65(B): Shortening the deadline to file a motion to publish from 30 to 15 days would codify the unwritten policy and preference of many judges on the Court of Appeals. Because a petition to transfer must be filed within 30 days of the issuance of an NFP Court of Appeals’ opinion, a shorter deadline will provide notice to all parties that an NFP decision may be published, which may affect some parties’ decision whether to seek transfer.

Allowing Citation of NFP Decisions: Rule 65(D) presently prohibits citations of or reliance on NFP opinions except for the very narrow purposes of establishing res judicata, collateral estoppel or law of the case. Thus, in trial courts across the state and on appeal, lawyers who find a NFP opinion with similar facts or helpful reasoning may not cite the opinion, even though they are permitted to cite any case decided by a court in another jurisdiction. The proposed rule would remedy this anomaly by permitting citation of NFP Indiana opinions as persuasive precedent while making clear that no party is under an obligation to cite any NFP opinion. The very modest change is warranted by modern technology and enjoys strong support of a broad section of the bar.

The proposed rule would maintain two classes of opinions. Published opinions would remain precedential and important to find and follow. NFP opinions would remain less significant—but would assume some significance. In cases where the published authority does not provide a complete answer, lawyers would be permitted to rely on NFP opinions as persuasive authority only.

This approach would be consistent with federal practice and the practice in a growing number of states. More importantly, it would allow counsel another way to advance and support their arguments, which is especially important in some areas of civil law in which there are relatively few published Indiana cases. Finally, by permitting citation to only NFP opinions issued after Jan. 1, 2015, the proposed rule will alleviate the burden on counsel to search through older NFP opinions.

To view additional information about the proposed rule amendment, visit indybar.org.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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