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Program provides lawyers trial run at oral argument

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Indiana Lawyer Focus

A lawyer recently prepared for an Indiana Supreme Court oral argument before a panel of attorneys who peppered him with frenetic lines of questioning.

At the end, the lawyer sighed, then laughed and said, “Anyone want to hear the argument?”

“No! We’re the judges,” a panelist quipped.

appeal-dsc-0063-15col.jpg From left, attorneys Dino Pollock, Kathleen Sweeney, Geoffrey Slaughter and Arend Abel listen to a moot argument in a case bound for the Indiana Supreme Court. (IL Photo/DaveStafford)

So concluded a recent moot court session of the Indiana Appellate Institute. A novel program offered by the Indianapolis Bar Association and the Indiana University Robert H. McKinney School of Law in Indianapolis, the institute gives lawyers a trial run in which they can practice their arguments before a panel of volunteer lawyers and sometimes former judges and justices.

“It’s in the interests of all of us to improve the quality of appellate arguments,” Taft Stettinius & Hollister LLP partner Geoffrey Slaughter said after recently sitting as a panelist hearing a moot argument.

Deputy Attorney General Dino Pollock also sat on a recent panel and said that for lawyers who may have limited or no appellate experience, scheduling a moot session through the institute just makes sense. “If you’re going to fall on your face, fall on your face when it doesn’t count,” he said.

IU McKinney Law professor Joel Schumm approached the IndyBar a few years back with the notion of creating a program modeled after the Georgetown University Law Center’s Supreme Court Institute that stages moot sessions for arguments that will be before the justices in Washington, D.C.

Since 2010, 14 cases have been argued at the Indiana Appellate Institute, and Schumm believes the program to be the only one of its kind on the state appellate level. He’s received inquiries from attorneys in other states interested in replicating the program.

“This is the best way to prepare for an oral argument,” Schumm said. “This is a wonderful opportunity to get different perspectives.”

Frost Brown Todd LLC partner Lucy Dollens chairs the IndyBar Appellate Practice Section and credited Schumm’s leadership as the reason the program is gaining wider notice and is poised to see an increase in use.

“From our perspective, it certainly is a resource the Appellate Practice Section of the IndyBar thought would benefit the bar and bench,” Dollens said. “It gives an attorney a chance to actually present oral argument as they would before an Indiana appellate court … and to learn from that experience and refine their own oral advocacy skills.”

Cases that have been pleaded before the institute have ranged from family law disputes to complex contract cases to matters with First Amendment implications. Schumm said a wide majority of attorneys who presented their arguments in the moot forum at the law school prevailed in the appellate courts in decisions issued so far.

Attorney Amy Carson of Mitchell Law Group in Indianapolis credits the benefit of a moot argument with helping her craft a winning argument before the Indiana Supreme Court in a parenting-time case. In June, the high court ruled in her favor in Michael D. Perkinson Jr. v. Kay Char Perkinson, 36S05-1206-DR-371.

“It provided me with a different perspective that helped me think of different ways to argue,” Carson said. Her moot session was about a week before she argued the case in December 2012.

“That allowed me enough time to think about some of the comments made by the panelists and to incorporate those comments or suggestions in the way I presented my argument,” she said.

Carson was invited to sit on a panel and did, and she said that experience also helped her advocacy skills. Schumm also sits on some panels and has a roster of about 45 volunteers who, on their own time, read up on the cases and serve on panels. Former Indiana Justice Frank Sullivan, now a McKinney Law professor, is one of them.

“That’s one of the things that I particularly appreciate about being able to be a member of this faculty,” Sullivan said. “It’s very tightly connected with the real world of law in this community.”

The institute has provided the service free of charge in the past, and it is continuing to do so for attorneys with little or no experience, in keeping with its mission. A $500 fee is now collected from larger-firm or more-experienced attorneys to schedule moot court hearings through the institute.

Dollens said Frost, like many larger firms, considers in every case whether to put on internal moot arguments. But that can be costly. Larger firms can still turn to the institute, which in some cases might provide the service more economically than the firms could arrange them.

“We didn’t want to close that avenue” to larger firms or more experienced attorneys, Dollens said, noting the fees collected will help the appellate section fulfill its mission and objectives.

Bryan Babb chairs the appellate services group at Bose McKinney & Evans LLP and is a volunteer panelist at the institute. He said because he invests time in learning cases when sitting as a moot judge, he takes a personal interest in seeing how the lawyers fare in the appellate arena.

“I’ve always been very proud and very satisfied to see the end product before the actual court,” Babb said. “It doesn’t help the court or the parties to have an ineffective oral argument, and the best result we could ask for is a focused, effective oral argument.”

The volunteer judges don’t take it easy on the advocates who make their moot cases. “We try to keep it as real as possible,” Babb said.

“I have seen lawyers that come to the initial moots and they know their cases very well but don’t appreciate necessarily how important it is to identify the key issues upfront,” he said.

Attorney Tom Vander Luitgaren scheduled a moot session that he said helped him argue successfully before the Indiana Supreme Court in an estate case, Harold A. Fulp Jr. v. Nancy A. Gilliland, 972 N.E. 2d 955 (Ind. 2012). “I don’t know if I can put into words how valuable it was,” he said.

For Vander Luitgaren of the Van Valer Law Firm LLP in Greenwood, the case was his first appearance before the Supreme Court in a long career, and he said having the moot experience refined his presentation.

“They read the appellate court case, they read the brief that had been submitted, and they were very on-point,” he said of the moot panel. “They were prepared, and prepared to give good, constructive criticism when the argument was over.”

The chat session after the moot argument can be among the most beneficial elements, according to Carson, Vander Luitgaren and other attorneys who’ve used the program. Panelists frequently suggest arguments they see as most persuasive, help lawyers frame the law in the strongest way, and stress key points the attorney might not have considered.

“Regardless of the outcome, I was prepared,” Vander Luitgaren said. “I made an effective presentation to the Indiana Supreme Court, and I am indebted to the attorneys who made that possible.”•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. 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.

  5. 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;

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