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


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  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?