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IndyBar Board Approves Rule Change Proposal

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The Indianapolis Bar Association Board of Directors approved a proposed rule amendment generated by the bar’s Appellate Practice Section at its Dec. 4 meeting. The rule amendment, which has since been submitted to the Rules Committee of the Indiana Supreme Court, amends Rule 65 of the Indiana Rules of Appellate Procedure, shortening the deadline to file a motion to publish in the Court of Appeals to 15 days and permitting the citation of Not-for-Publication (NFP) opinions as persuasive precedent. The proposal specifies that only NFP opinions issued after Jan. 1, 2015 be permitted to be cited.

The proposal originated in the Appellate Practice section but was also approved by the executive committees of the Criminal Justice Section and the Litigation Section earlier in 2013. The section members of all three sections were also surveyed to gauge opinions on possible changes, with 79 percent of respondents in favor of an amendment to the rule.

The documentation provided to the Rules Committee details the anticipated impact of the proposed amendment:

Deadlines for Motions to Publish Under Appellate Rule 65(B): Shortening the deadline to file a motion to publish from 30 to 15 days would codify the unwritten policy and preference of many judges on the Court of Appeals. Because a petition to transfer must be filed within 30 days of the issuance of an NFP Court of Appeals’ opinion, a shorter deadline will provide notice to all parties that an NFP decision may be published, which may affect some parties’ decision whether to seek transfer.

Allowing Citation of NFP Decisions: Rule 65(D) presently prohibits citations of or reliance on NFP opinions except for the very narrow purposes of establishing res judicata, collateral estoppel or law of the case. Thus, in trial courts across the state and on appeal, lawyers who find a NFP opinion with similar facts or helpful reasoning may not cite the opinion, even though they are permitted to cite any case decided by a court in another jurisdiction. The proposed rule would remedy this anomaly by permitting citation of NFP Indiana opinions as persuasive precedent while making clear that no party is under an obligation to cite any NFP opinion. The very modest change is warranted by modern technology and enjoys strong support of a broad section of the bar.

The proposed rule would maintain two classes of opinions. Published opinions would remain precedential and important to find and follow. NFP opinions would remain less significant—but would assume some significance. In cases where the published authority does not provide a complete answer, lawyers would be permitted to rely on NFP opinions as persuasive authority only.

This approach would be consistent with federal practice and the practice in a growing number of states. More importantly, it would allow counsel another way to advance and support their arguments, which is especially important in some areas of civil law in which there are relatively few published Indiana cases. Finally, by permitting citation to only NFP opinions issued after Jan. 1, 2015, the proposed rule will alleviate the burden on counsel to search through older NFP opinions.

To view additional information about the proposed rule amendment, visit indybar.org.

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  1. 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

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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