Articles about pending cases raise concerns

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When Indianapolis attorney Jerry Garau argued a wrongful death case before the Indiana Supreme Court late last year, he assumed his advocacy work was finished until the court asked for more or issued a decision.

Both sides had submitted briefs, made oral arguments, and weren’t expecting any hearings or related litigation until the state’s highest court ruled on the key emotional distress issue in the case.

The plaintiffs attorney with Garau Germano Hanley & Pennington opened the Indiana State Bar Association’s monthly magazine in March and saw what he considered to be a supplemental amicus brief by an attorney who belongs to the Defense Trial Counsel of Indiana, which had been an amicus party in that still-pending case.

A similar situation arose more recently in a case that Garau wasn’t involved in, but it illustrates what he describes as a practice that’s been prevalent for years but that he and some others believe shouldn’t be allowed.

“This has been going on for years, but it’s an improper use of those publications and goes outside the avenues that are appropriate to influence the court,” said the attorney who’s been practicing for 24 years. “I realize there are judicial canons, but the bottom line is that judges are human and they receive these publications and read these articles … that plants the seed.”

Jerry Garau mug Garau

Garau and at least one other attorney are questioning how some legal publications have included articles, columns, or other types of coverage on pending cases. The topic brings attention to the lines between the briefing process and judicial canons and attorney conduct rules, as well as potential First Amendment issues that could arise in the context of censoring someone’s written opinions about a case or legal issue.

For Garau, the issue surfaced in relation to the case of Indiana Patient’s Compensation Fund v. Gary Patrick, et al., No 49S02-0909-CV–00402, which involved intentional infliction of emotional distress. Garau is one of the plaintiffs’ attorneys and made oral arguments before the Indiana Supreme Court in November.

The March issue of Res Gestae contained a column from Chicago attorney Howard Huntington about the overall issue of negligent infliction of emotional distress and mentioned several cases, including Patrick, to discuss the current state of the law in that area. While he wasn’t involved with the case, Huntington wrote as a member of DTCI that was an amicus party to the pending appeal.

Garau saw the article and took issue with its tone and legal analysis. Because the article was about a pending case, he wrote a letter to the ISBA Written Publications Committee that reviews articles appearing in the magazine.

“I was dismayed to see Res Gestae used as a forum for a member of the (DTCI) to publish what amounts to a supplemental amicus curiae brief,” he wrote. “I believe the ISBA should discourage attempts by members of the bar to use extrajudicial forums in an effort to sway opinions on pending litigation.”

Huntington said his article was originally submitted in August 2009, he had no connection to the pending appeal, and the column wasn’t intended to be a supplemental amicus brief.

Joel Schumm mug Schumm

Judges aren’t supposed to consider any extrajudicial information outside of what’s on the record or in the briefs, and it’s common practice for attorneys to write about pending cases in state and national legal publications, he said.

Overall, the Chicago attorney disagreed with the position that authors and editors shouldn’t be allowed to write about pending cases because that would have a chilling effect and inhibit debate and discussion about cases within the legal community.

In response to Garau’s letter, the ISBA committee attached a note in the publication that said the point was well taken and that in the future, the committee would make sure that articles about pending cases received extra scrutiny.

In response to the Res Gestae editor note attached to his letter, Garau said he appreciates the feedback to his concern, saying he felt his issue was taken seriously and realized this is an issue they need to be more concerned about.

Committee co-chair Joel Schumm, an Indianapolis attorney and law school professor, said this was a surprise for the committee. Though it’s changed how members look at articles, there’s no blanket policy that authors can’t discuss cases pending before a court.

“It’s a good thing to have a viewpoint, and we want to encourage that on whatever side is writing about it,” he said. “That fosters discussion. We need to trust judges to only consider proper materials before them.”

But that same situation came up again when Evansville attorney Terry Noffsinger saw the DTCI’s regularly monthly column in the May 12-25, 2010, issue of Indiana Lawyer, in which Indianapolis attorney and DTCI member Kevin C. Tyra discussed comparative fault caselaw and two recent Court of Appeals decisions. One of those was Caesars Riverboat Casino LLC v. Kephart, 903 N.E. 2d 117 (Ind. App. 2009), a case that Tyra wasn’t involved in but Noffsinger represented the woman pitted against the casino. Noffsinger raised concerns that the article didn’t mention the Kephart case had since been transferred to or argued before the Supreme Court.

He expressed the same concern as Garau but said this appears to be a larger issue that should be questioned.

“It seems to me that once oral arguments have been concluded, here we have these articles by the DTCI twice on pending cases. There are so many topics out there that could be discussed that are fair game, why these? Let them argue their biases on cases that aren’t pending. I think it’s wrong to use a legal forum that you believe judges may read, to do what in effect is a supplemental amicus brief.”

DTCI president Mary Reeder, an attorney at Riley Bennett & Egloff in Indianapolis, dismissed the claims that these articles are intended to sway judges on the cases. She said courts have specific canons addressing that so they’re prohibited from considering anything outside the record. The same applies with attorneys, who are limited by professional conduct rules in what they can say about their pending litigation.

This hasn’t been a topic discussed generally or officially by DTCI, and it hasn’t come as a concern before this, Reeder said. She said neither of the articles that have raised concerns was DTCI-sponsored; they were the opinions of those writing them and neither individual was involved in the case in any way. The sole purpose of these articles and columns is to educate and keep members informed about pending case, she said.

“Clearly, it’s not the intent to influence the courts,” she said. “But I can’t believe that our judges or justices aren’t well aware of their limitations in knowing what they can and can’t consider.”

Indiana appellate attorney George Patton, who works in the Washington, D.C., office of Bose McKinney & Evans and has experience on both free speech and judicial canon issues, said he didn’t see any problem with attorneys writing about pending cases in which they aren’t involved. Even newer ethics rules prevent judges from going online and doing additional research, showing how restricted they are in considering non-record information.

“No, it’s not a supplemental brief because it’s not filed in the court, and I don’t see it as improper,” he said. “It’s a healthy debate to talk about pending cases, and that’s all protected by the First Amendment.”•


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.