ILNews

Changing how state appeals are started

Back to TopCommentsE-mailPrintBookmark and Share

For the first time in Indiana’s history, lawyers and litigants will no longer be able to file appeals the way it has typically been done.

A new Indiana Supreme Court rule amendment that took effect Jan. 1, 2012, requires all appeal notices be filed with the Indiana Appellate Clerk’s Office in Indianapolis – instead of the local jurisdiction – within 30 days of a final judgment.

appeals Case manager Lue Hilliard processes appellate documents at the Indiana Appellate Clerk’s Office, stamping the papers to note they’ve been filed.. (IBJ Photo/ Perry Reichanadter)

While some questions remain about how the new process will play out, the legal community does have a two-year grace period before parties lose the right to appeal by not filing the documentation in the correct place.

“From a foundational level, this is the biggest change we’ve ever seen on how the appeals process gets started,” said Indianapolis attorney Maggie Smith, immediate past chair of the Indiana State Bar Association’s Appellate Practice Section and member of the Indiana Supreme Court’s Committee on Rules of Practice and Procedure. “We’re at a point we haven’t seen before, and there’s some open questions about how this will all work.”

The Indiana Supreme Court in September issued an order amending Indiana Appellate Procedure Rule 9 on the filing of a notice of appeal. Historically, attorneys would file a brief notice of appeal form in the local jurisdiction where a final judgment was issued and serve notice on the appellate clerk’s office to start the process.

In studying this rule change, Maggie Smith said some significant problems were discovered. Although the existing rules said a party was supposed to file in the trial court and serve a copy on the appellate court to allow for monitoring of that case to begin, it wasn’t working that way in practice. In about 30 percent of cases, the appellant wasn’t serving the Court of Appeals notice of the appeal, even though the other parties and trial court were already sending the case records to the appellate level.

It was also discovered that some trial courts in Indiana were denying a party’s notice of appeal or dismissing the appeal outright when they didn’t have that authority, Maggie Smith said. The ISBA Appellate Practice Section reported this was not an uncommon practice, she added.

“We (on the Rules Committee) receive complaints about how certain rules are applied, so we have to sit down and decide if this is an issue where a rule is insufficient or it’s just not being followed,” she said. “Most rank and file of the bar fall into the category of saying the rule is sufficient, but it’s just not being followed.”

In addition to changing where the notice is filed, the revised rule requires that the notice of appeal contain information such as the names of the parties and counsel; trial information; the date and title of the judgment or order appealed; the date on which any motion to correct error was denied or deemed denied; the basis for appellate jurisdiction; preparation of the clerk’s record; transcript preparation; whether all or any portion of the court records were sealed or excluded from public access by court order; and whether the appellant is willing to participate in alternative dispute resolution.

Unless the notice of appeal is timely filed, the right to appeal will be forfeited. A two–year grace period is in effect until Jan. 1, 2014, for an appellant that timely files the appeal notice with the trial court clerk or administrative agency instead of the state appellate clerk’s office as required.

Appellate Clerk Kevin Smith says these new notices of appeal won’t be subject to the notice of defect process, and they’ll be forwarded to the Court of Appeals without review by the clerk’s office. He said about 15 to 20 percent of defects in the past have dealt with appellant case summaries from attorneys and pro se litigants.

“Attorneys shouldn’t be thinking we’re going to be operating as gatekeepers to catch non-substantive defects, as we have before,” he said. “We think this will free up our case managers to file more paper because they won’t be reviewing mistakes.”

But questions remain about whether the grace period extends to the other rule revisions, such as the content of the notice. Some wonder if the appeal is forfeited if an attorney or party files in the correct place, but doesn’t include the correct materials.

Big firm attorneys say they’re changing the language and process used for how they file appeals to comply with the new party listings that now must be included. Smaller firms and solo practitioners who don’t file as many appeals say they’re more concerned about the amount of work that might go into preparing an appellate notice within those 30 days rather than the additional months they’d have to prepare them under the former rules.

“Most significant isn’t necessarily where one files, but the nature of the appeal,” said Bloomington appellate attorney Karen Wyle. “This new process has engulfed and replaced the appellate case summary and makes it much more complicated.”

Wyle said the process has traditionally been equivalent to telling the trial court clerk one’s appealing the case, so the county will need to start preparing the docket and record. She’s walked people through the process pro se before, but now Wyle worries this change could limit the number of self-represented litigants.

“This makes me nervous,” she said. “This means you have to know your way around to get the right documents and be able to know what they mean. It’s more work sooner, especially when someone calls me at the last-minute with only a couple days left before the deadline.”

To comply with a 30-day deadline, Wyle predicts some attorneys might have to take an appeal and then rework any retainer fee agreement so that they have the ability to later withdraw if they learn the case might not be a viable appeal.

Addressing some of the concerns, Maggie Smith said while the notice may look like it is more work up front, she said it is about 20 percent of what had been required before.

“That’s the tension between making rule changes. You can sit back here and theoretically say, if you’re an appellate attorney, you need to know the rules governing the practice, just like if you’re going into a local court before you go into the court.

“Attorneys don’t operate that way, and they go off past experiences. That’s likely no longer good (enough) for what the courts require. But if someone doesn’t open the rule book or hasn’t attended CLE in four years, those practitioners are going to find themselves in trouble on several fronts. More people will probably learn about this by doing it wrong, by getting a letter from the Court of Appeals. At least for the first two years, you won’t have the appeal dismissed,” she said.

The ISBA Appellate Practice Section plans to travel statewide during the next year offering free CLE to anyone who wants to know more about the rule change. Maggie Smith also said the ISBA plans to hold educational sessions for court reporters, court clerks and trial judges to learn more about the changes.•

ADVERTISEMENT

  • grace period
    Hi, Karen. The quote above was talking about where you file. You're 100% correct that, as written, the grace period does not apply to content defects. That remains to be an issue for the Court of Appeals.

    In the past, non-substantive defects in a Notice of Appeal were insufficient to dismiss an appeal. The big and unresolved question is whether the new content required in the Notice of Appeal will be considered non-substantive.

    I think it is reasonable to argue that what was required in the old Notice of Appeal is the substantive part, and the new content required as a result of the Case Summary being abolished is not substantive since it wasn't required before. But that's just my opinion . . .
  • [whoops - grammar correction]
    (That should have read: "... if the content ... fails to conform")
  • Will grace period apply to contents of Notice of Appeal?
    I hope Maggie Smith is correct that appeals will not be dismissed within the two-year grace period if the contents -- rather than the place of filing -- fails to conform to the new rules. The grace period applies explicitly to filing in the wrong place, and says nothing about filing the obsolete short form of Notice.

    Post a comment to this story

    COMMENTS POLICY
    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
     
    You are legally responsible for what you post and your anonymity is not guaranteed.
     
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
     
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
     
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
     

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by

    facebook - twitter on Facebook & Twitter

    Indiana State Bar Association

    Indianapolis Bar Association

    Evansville Bar Association

    Allen County Bar Association

    Indiana Lawyer on Facebook

    facebook
    ADVERTISEMENT
    Subscribe to Indiana Lawyer
    1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

    2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

    3. The story that you have shared is quite interesting and also the information is very helpful. Thanks for sharing the article. For more info: http://www.treasurecoastbailbonds.com/

    4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

    5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

    ADVERTISEMENT