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Same firm, but different cases before Supreme Court on same day

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In a downtown Indianapolis law office just before Christmas, two lawyers bantered about their upcoming appearances before the Indiana Supreme Court.

They talked about the interesting legal issues, how one would be making his debut argument appearance while the other was appearing for the second time. They discussed how they’d been preparing for the justices’ questions and what it means to watch the little timer light while standing at the podium in the ornate courtroom inside the Indiana Statehouse.

While both looked forward to the experience that wasn’t a regular happening in either of their young legal careers, the pair’s arguments seemed like just another part of the practice as an appellate attorney.
 

Attorneys Paul Jefferson and Mark Crandley Attorneys Mark Crandley and Paul Jefferson, both partners at Barnes & Thornburg in Indianapolis, argued before the Indiana Supreme Court on the same day but in different cases – a rare happening. (IL Photo/ Perry Reichanadter)

Then, they discovered their arguments were on the same day.

For appellate attorneys Paul Jefferson and Mark Crandley at Barnes & Thornburg, this double-argument day Jan. 20 was a new experience that many say isn’t very common in the legal community. While the Indiana attorney general’s office may find various attorneys arguing different cases before the judges or justices on any given day, it’s a rarity to have more than one attorney from a specific law firm appearing in the same court on the same day for different cases.

Jefferson and Crandley have been friends for more than a decade, and this was a coincidental but fun scheduling nuance, they said.

“Most attorneys never have the opportunity to argue before that court at all, and for us to have that chance on the same day as close friends and colleagues was special,” said Crandley, who’d served as an advisor to Jefferson when he started at the law firm as a summer associate.

With Crandley graduating in 2000 and Jefferson in 2002, the two had been friends since their law school days and both clerked at the Supreme Court near the same time before ending up at Barnes & Thornburg together. Jefferson is a partner and chairs the firm’s Appellate Practice Group, while Crandley is a partner in the litigation department and focuses primarily on appeals, municipal, and constitutional law.

The morning of Jan. 20 was Jefferson’s first time arguing before the state’s highest court while it marked Crandley’s second appearance. But the pair had observed many arguments in person and online before that, and they were acquainted with what they needed to do.

Though the Indiana Appellate clerk’s office doesn’t break down argument lineups and the firms where lawyers involved practice, a handful of appellate attorneys statewide say they haven’t observed this same-day matchup as a common occurrence for private practitioners.

The Indiana attorney general’s office is a different story. A deputy attorney general or Solicitor General Tom Fisher might be arguing in back-to-back appeals on any given day, and that’s not uncommon.

“That happens every day around here,” spokesman Bryan Corbin said. “Anytime you have two criminal cases, you’ll have someone from the attorney general’s office on one side. Tom Fisher has had his share of back-to-back arguments in one court or between more than one, and it’s not uncommon for us to swap attorneys who are needed on one case or in another appellate courtroom.”

But for private practitioners, appearing back-to-back and in the company of their colleagues is considered a unique experience.

At Bose McKinney & Evans, attorney George C. Patton, who practices in the firm’s Washington, D.C., office, says he recalls a three-person split where a trio of attorneys – himself, Ron Elberger, and Andrew McNeil – were spread out among the state and federal courts on the same litigation. The cases revolved around the WorldCom-Thompson matters in the mid-1990s, he said, and all three were handling a different aspect.

As the appellate counsel on the state case, Patton recalls being relieved that his portion of the Indiana Court of Appeals case was complete as he walked to the Southern District of Indiana courthouse, but he was interested in seeing how the federal judge would rule. He remembers the thrill of being a part of so many oral arguments and hearings on the same day, and having the same parties and counsel involved.

“Usually, one oral argument or preliminary injunction hearing is more than enough for a single day, but this experience remains fresh in my memory more than a decade later,” he said.

Elberger echoes those sentiments, describing the experience as “invigorating” in not only being able to tag team the case, but also seeing his colleagues in action.

“Exhausted, we experienced what few could have imagined in an incredibly short amount of time: the satisfaction of completing two appellate arguments followed by a federal court injunction proceeding with a few hours from beginning to end. Looking back, it brings a smile to our faces because it was simply fun and the challenge – refreshing,” he said.

Most recently for the Barnes & Thornburg pair, Jefferson stood at the appellate podium first on that Thursday morning for the arguments in State of Indiana v. FreeEats.com, No. 07S00-1008-MI-411. The case involves the attempted enforcement of the Indiana AutoDialer Law, or Indiana Code 24-5-14, by the state. The trial judge granted and denied in part a preliminary injunction request from FreeEats.com and the state sought an emergency transfer, which the justices granted. The appeal raises a constitutional question under the Indiana Constitution, and Jefferson argued that this restriction creates an economic burden for the company using this interactive artificial technology and violates the state constitution. He’s not asking the court to strike down the full statute, but rather allow for this technology to be used in place of a live operator as the legislative language currently states.

After the first appeal, the justices turned their attention to Crandley’s case: City of Greenwood v. Town of Bargersville, No. 41S05-1012-CV-666.

Greenwood is challenging the town’s annexation of land within 3 miles of the city’s corporate boundary. The Johnson Superior Court granted summary judgment in Bargersville’s favor. The Indiana Court of Appeals last year reversed on the grounds that the town didn’t obtain the consent of 51 percent of the landowners for annexation purposes, but rather as part of a separate sewer service agreement. What the Supreme Court rules will not only decide whether that part of Bargersville becomes a part of Greenwood, but also what is required for “consent” by other communities trying to annex land.

Each sat and watched the other argue, and they appreciated the chance to do that.

“I think it meant a lot to both of us since we both clerked for the Supreme Court and spend so much of our professional time following that particular court’s jurisprudence,” Crandley said. “We’re good friends outside of work, and I would have been in the courtroom that morning even if I was not arguing.”

Crandley said watching his colleague argue first had a calming effect on him and helped him clear his mind, since he was able to reflect on Jefferson’s case instead of his own before taking the podium.

“I guess I was buoyed a bit about my own case seeing Paul do such a great job under enormous pressure during his argument,” Crandley said.

Once they switched spots, Jefferson stuck around in the courtroom to watch Crandley in action.

“It was a neat way to do it, back to back,” Jefferson said. “I also thought it was nice to have the younger appellate lawyers in the firm have an entire morning there. That was interesting, because we’ve had multiple longtime attorneys make arguments but they’re usually scattered. It was nice to highlight that for the younger practitioners.”

The state justices have no timetable on when they might issue a ruling on either case, but both Jefferson and Crandley laugh about the off-chance the court may issue a decision in both cases on the same day.

“It would be amazing if the court handed down the cases on the same day,” Crandley said. “That’s not terribly likely, but not impossible either.”•

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  1. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  2. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  3. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  4. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  5. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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