When Indianapolis attorney Jerry Garau argued a wrongful death case before the Indiana Supreme Court late last year, he assumed his advocacy work was finished until the court asked for more or issued a decision.
Both sides had submitted briefs, made oral arguments, and weren’t expecting any hearings or related litigation until the state’s highest court ruled on the key emotional distress issue in the case.
The plaintiffs attorney with Garau Germano Hanley & Pennington opened the Indiana State Bar Association’s monthly magazine in March and saw what he considered to be a supplemental amicus brief by an attorney who belongs to the Defense Trial Counsel of Indiana, which had been an amicus party in that still-pending case.
A similar situation arose more recently in a case that Garau wasn’t involved in, but it illustrates what he describes as a practice that’s been prevalent for years but that he and some others believe shouldn’t be allowed.
“This has been going on for years, but it’s an improper use of those publications and goes outside the avenues that are appropriate to influence the court,” said the attorney who’s been practicing for 24 years. “I realize there are judicial canons, but the bottom line is that judges are human and they receive these publications and read these articles … that plants the seed.”
Garau and at least one other attorney are questioning how some legal publications have included articles, columns, or other types of coverage on pending cases. The topic brings attention to the lines between the briefing process and judicial canons and attorney conduct rules, as well as potential First Amendment issues that could arise in the context of censoring someone’s written opinions about a case or legal issue.
For Garau, the issue surfaced in relation to the case of Indiana Patient’s Compensation Fund v. Gary Patrick, et al., No 49S02-0909-CV–00402, which involved intentional infliction of emotional distress. Garau is one of the plaintiffs’ attorneys and made oral arguments before the Indiana Supreme Court in November.
The March issue of Res Gestae contained a column from Chicago attorney Howard Huntington about the overall issue of negligent infliction of emotional distress and mentioned several cases, including Patrick, to discuss the current state of the law in that area. While he wasn’t involved with the case, Huntington wrote as a member of DTCI that was an amicus party to the pending appeal.
Garau saw the article and took issue with its tone and legal analysis. Because the article was about a pending case, he wrote a letter to the ISBA Written Publications Committee that reviews articles appearing in the magazine.
“I was dismayed to see Res Gestae used as a forum for a member of the (DTCI) to publish what amounts to a supplemental amicus curiae brief,” he wrote. “I believe the ISBA should discourage attempts by members of the bar to use extrajudicial forums in an effort to sway opinions on pending litigation.”
Huntington said his article was originally submitted in August 2009, he had no connection to the pending appeal, and the column wasn’t intended to be a supplemental amicus brief.
Judges aren’t supposed to consider any extrajudicial information outside of what’s on the record or in the briefs, and it’s common practice for attorneys to write about pending cases in state and national legal publications, he said.
Overall, the Chicago attorney disagreed with the position that authors and editors shouldn’t be allowed to write about pending cases because that would have a chilling effect and inhibit debate and discussion about cases within the legal community.
In response to Garau’s letter, the ISBA committee attached a note in the publication that said the point was well taken and that in the future, the committee would make sure that articles about pending cases received extra scrutiny.
In response to the Res Gestae editor note attached to his letter, Garau said he appreciates the feedback to his concern, saying he felt his issue was taken seriously and realized this is an issue they need to be more concerned about.
Committee co-chair Joel Schumm, an Indianapolis attorney and law school professor, said this was a surprise for the committee. Though it’s changed how members look at articles, there’s no blanket policy that authors can’t discuss cases pending before a court.
“It’s a good thing to have a viewpoint, and we want to encourage that on whatever side is writing about it,” he said. “That fosters discussion. We need to trust judges to only consider proper materials before them.”
But that same situation came up again when Evansville attorney Terry Noffsinger saw the DTCI’s regularly monthly column in the May 12-25, 2010, issue of Indiana Lawyer, in which Indianapolis attorney and DTCI member Kevin C. Tyra discussed comparative fault caselaw and two recent Court of Appeals decisions. One of those was Caesars Riverboat Casino LLC v. Kephart, 903 N.E. 2d 117 (Ind. App. 2009), a case that Tyra wasn’t involved in but Noffsinger represented the woman pitted against the casino. Noffsinger raised concerns that the article didn’t mention the Kephart case had since been transferred to or argued before the Supreme Court.
He expressed the same concern as Garau but said this appears to be a larger issue that should be questioned.
“It seems to me that once oral arguments have been concluded, here we have these articles by the DTCI twice on pending cases. There are so many topics out there that could be discussed that are fair game, why these? Let them argue their biases on cases that aren’t pending. I think it’s wrong to use a legal forum that you believe judges may read, to do what in effect is a supplemental amicus brief.”
DTCI president Mary Reeder, an attorney at Riley Bennett & Egloff in Indianapolis, dismissed the claims that these articles are intended to sway judges on the cases. She said courts have specific canons addressing that so they’re prohibited from considering anything outside the record. The same applies with attorneys, who are limited by professional conduct rules in what they can say about their pending litigation.
This hasn’t been a topic discussed generally or officially by DTCI, and it hasn’t come as a concern before this, Reeder said. She said neither of the articles that have raised concerns was DTCI-sponsored; they were the opinions of those writing them and neither individual was involved in the case in any way. The sole purpose of these articles and columns is to educate and keep members informed about pending case, she said.
“Clearly, it’s not the intent to influence the courts,” she said. “But I can’t believe that our judges or justices aren’t well aware of their limitations in knowing what they can and can’t consider.”
Indiana appellate attorney George Patton, who works in the Washington, D.C., office of Bose McKinney & Evans and has experience on both free speech and judicial canon issues, said he didn’t see any problem with attorneys writing about pending cases in which they aren’t involved. Even newer ethics rules prevent judges from going online and doing additional research, showing how restricted they are in considering non-record information.
“No, it’s not a supplemental brief because it’s not filed in the court, and I don’t see it as improper,” he said. “It’s a healthy debate to talk about pending cases, and that’s all protected by the First Amendment.”•