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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. 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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