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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. 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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