I write in response to the recent announcement of the creation of six commercial courts. A great many years past, Justice Oliver Wendell Holmes, Jr. aptly defined “the law” as “[t]he prophecies of what the courts will do in fact[.]” “The Path of the Law,” 10 HARV. L. REV. 457, 460–61 (1897). The formation of specialized courts with experience and expertise help to make the results of litigation more predictable, and thereby help to clarify “the law.” In that sense, the creation of these commercial courts is invaluable.
However, there is an addition to these courts that I think would prove of great use. Anyone who has litigated business disputes has likely discovered that there is a relative dearth of appellate case law from which to draw factual analogies. As a result, jurisdictions that publish reports of trial court decisions, such as Massachusetts and Delaware, often prove to be godsends. The same can certainly be said for the extensive citation to federal district court decisions. Under Indiana law, the decision of one trial court is, of course, not binding on another. Smith v. State, 38 N.E.3d 218, 222 ¶ 17 (Ind. Ct. App. 2015). Nor should it be. But, the case law and rules take it a step further.
Though it is often overlooked, Indiana Appellate Rule 65(D) prohibits the citation of state trial court decisions to any other Indiana court. See Indiana Dep’t of Nat. Res. v. United Minerals, Inc., 686 N.E.2d 851, 857 n.1 (Ind. Ct. App. 1997). For these courts to meet their full potential in consistency and predictability, the decisions of these courts should be subject to citation to the same extent that federal district court decisions may be cited. See Barco Beverage Corp. v. Ind. Alcoholic Beverage Comm’n, 571 N.E.2d 306, 308 n.2 (Ct. App. 1991), vacated, 595 N.E.2d 250 (Ind. 1992). By allowing citation, there may be greater consistency among the commercial courts and the other courts that may seek their specialized guidance. Such an addition may also help to re-establish Indiana as one of the preeminent states for citation by other jurisdictions.•
Colin E. Flora
Pavlack Law LLC