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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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