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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Court of Appeals, which issues a written opinion in every case that comes before it but tags a majority of them as Not For Publication – a designation that means they aren’t citable in future lawsuits.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Some states nationally have started exploring how they use unpublished decisions in courts, changing whether they can be cited or used as precedent while the federal courts began allowing such citations in 2007.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dinner conversation,” but nothing the court is considering changing as far as online posting or how it looks at unpublished decisions.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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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