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Debate swirls around citations, use of the NFP

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Envision a world in which lawyers successfully defended a client on what all parties thought was a significant legal issue, but future attorneys couldn’t use that case result to help persuade judges in their litigation.

Try thinking about that happening in the same courtroom, before the same judges, with a case that has identical theories of defense and involves the same client, and the court saying it doesn’t have to follow its own precedent from the previous case that it had ruled on.

This is the situation within the Indiana Court of Appeals, which issues a written opinion in every case that comes before it but tags a majority of them as Not For Publication – a designation that means they aren’t citable in future lawsuits. A rule change in 2006 means those NFP opinions are now posted online each day so the public can see them, even though attorneys are essentially barred from using them as part of their arguments in similar cases down the road.

Some states nationally have started exploring how they use unpublished decisions in courts, changing whether they can be cited or used as precedent while the federal courts began allowing such citations in 2007. Indiana has also explored that question, but nothing is currently on the state’s agenda as far as changing how NFPs are handled.

Parties aren’t citing NFPs with any more frequency, and the topic remains mostly academic, attorneys and judges say.

Indiana Court of Appeals Chief Judge John Baker described the issue as “interesting dinner conversation,” but nothing the court is considering changing as far as online posting or how it looks at unpublished decisions. That is up to the state justices to consider as far as possible revisions to Indiana Appellate Rule 65(D), which states these decisions aren’t regarded as precedent and aren’t citable in other court cases, he said.

“You had criticisms originally about how to confine people from citing them, and the answer is simply that you can’t,” he said. “You just won’t acknowledge it when it does happen.”

geoff slaughter Slaughter

If NFP opinions could be cited as federal courts now allow, the chief judge said it wouldn’t impact the rationale or thought process for the appellate judges. But it may impact the state’s Supreme Court justices, who might feel compelled to rectify some of the lower court’s writing.

The topic arose in early May at the Indiana State Bar Association’s Appellate Practice Section seminar, where a judge-attorney panel discussed many issues about how appellate lawyers persuade judges reviewing their cases. Court of Appeals Judges Edward Najam and Margret Robb joined Indianapolis attorney and law professor Joel Schumm and Indianapolis attorney Geoffrey Slaughter from Taft Stettinius & Hollister on the panel.

Despite the appellate rule prohibiting the use of NFPs, the CLE materials from the session say that the Court of Appeals sometimes does cite them. Indiana Supreme Court Justice Frank Sullivan also mentioned at a recent educational seminar that it might be appropriate for attorneys to raise an issue that’s been the focus of several recent unpublished opinions, according to the materials.

Judge Najam said that in a digital age where so much information is online, the whole issue of publication has changed from when hardbound volumes were the sole publication method. That means it warrants more consideration by the courts in how NFPs are used.

“There’s a real practical consideration that really merits some deliberation,” he said. “I’m always interested in legal reasoning wherever it can be found. But we want a system that everyone understands and where everyone plays by the same rules as far as citation.”

Judge Najam said many cases are redundant and don’t add anything to the law, and if they were published that would create an even larger amount of cases that need reading and consideration. That could change the current practice of how the appellate court writes a decision in every case that comes before it, whether it’s published or not. Many states have summary dispositions that don’t offer guidance for why the ruling was made a certain way.

“We explain our reasoning …. That’s important for the parties and for the overall judicial function,” he said. “In Indiana, an opinion is not simply decided. It’s written and that rationale brings a discipline to the thought process and integrity to the opinion itself. That process is very important.”

Generally, about three-quarters of the Court of Appeals decisions are designated as NFP, stamped with a box in the upper left corner describing the rule governing this status. Each appellate panel conducts a separate vote on an opinion to determine whether it should be published or not. If a lawyer disagrees with that designation, he or she can file a motion to publish but attorneys say most of those requests are denied.

Schumm, who teaches at Indiana University School of Law – Indianapolis, describes the NFP status as a misnomer because they’re available online and also published in Lexis and Westlaw. That’s his objection to the prohibition against citing them, Schumm said.

“Lawyers in Indiana can cite cases from the Montana Supreme Court or the Arkansas Court of Appeals in an attempt to persuade the appellate judges, but thousands of our own Indiana appellate opinions issued each year are off-limits,” he said. “I’d like to see the rule amended to allow the citation of these NFPs, even if they are merely regarded as persuasive precedent while For Pub opinions are binding.”

Edward Najam Najam

A few years ago, Schumm had an appeal where a trial judge refused to give an instruction tendered by defense counsel. He thought it was a strong claim, but couldn’t find any cases exactly on point. In talking with the trial lawyer, Schumm learned that the Court of Appeals had reversed a conviction a few months earlier on another case for the refusal of the exact same instruction by the same trial judge. But that appellate ruling was NFP and he couldn’t cite it, and even though Schumm later won on the issue with an NFP decision the appellate court denied publishing it.

If the same issue arises again, another lawyer will likewise be unable to cite any precedent directly on point, Schumm said.

“This creates more work for lawyers who need to reargue the case, and the new panel of judges that need to consider it anew without any reference to cases previously decided on the very issue,” he said.

Slaughter said he can see both sides of the argument, but he hopes the courts will consider revising the rule. He appreciates that you can’t cite a case but can rely on it to help shape your arguments or how a case is handled. The judges sometime refer to it as “horizontal stare decisis,” where one court panel is not bound by another panel’s decision.

“I can appreciate that, but I do think it would be worthwhile for you to be able to point out to panels that another set of judges ruled a particular way, regardless of whether the judges rely on them as precedent,” he said. “Whether you find that persuasive or not, it’s up to you …. You can say that same thing about some of the published decisions. The appellate attorneys seem to be on the same page, but my fear is that there’s not much ground swell for any change within judicial ranks.”•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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