Online Extra: Judicial Roundtable 2014

This is a longer version of the roundtable discussion held in December with Indiana Chief Justice Loretta Rush, Chief Judge Robyn Moberly of the Bankruptcy Court for the Southern District of Indiana, Chief Judge Nancy Vaidik of the Indiana Court of Appeals and Indiana Tax Judge Martha Wentworth. Questions and answers have been edited.

IL STAFF:  As I mentioned when I invited you all  to be a part of this round table, the legal community’s kind of experienced a unique moment in 2014 with women stepping into top leadership posts, or already in top leadership posts, in both our state and federal courts,  so we know that clearly glass ceilings have been broken. And we’re wondering, though, do you feel like young  women in the legal practice are still encountering  prejudices or discrimination of any kind or is that part of history, and if they are experiencing that, what are they?

CHIEF JUDGE NANCY VAIDIK:  Clearly, in the law firm, big law firm field, they are still. I think the National Association of Women Lawyers just did a survey earlier this year and only 17 percent of equity partners in law firms are females and so there is really still a glass ceiling when it comes to firms, big law firms.

JUDGE MARTHA WENTWORTH:  It’s better. When I started practicing in 1990 you could count on one hand the number of partners in law firms that were women and the same in accounting firms. It has taken more than a decade to improve that number, but it has improved.  I think the same is true in corporate America, and since that was my clientele when I was a practitioner, it was difficult.  I think the difficulty is also getting clients when the clients are older white men and you might be a young black woman, there’s a gap there. So I think there is still a glass ceiling because you tend to want to be with people who are like you, and unless we get a lot of women up in the upper echelons of business and law and all of the other people that use law firms, we’re going to have, still, a struggle But we’re not alone. Anyone different will have a struggle.   

CHIEF JUDGE ROBYN MOBERLY:  Maybe I’m overly optimistic about attitudes.  My sense is that men have adopted some of the family roles that used to strictly fall with the women. But, nonetheless, I think there’s just some realities that when you’re at child-bearing age that’s also the time in your career where you otherwise would be stepping on the gas and I don’t know how you address that. There are responsibilities that women have that men don’t have in their lives right now, as I said.  I think that’s slowly moving, but there’s just some realities that make it difficult to build and to network and to attract clients.  It’s hard if you’ve got two little babies at home to be out digging up clients.

CHIEFJUDGE MOBERLY:  Golfing, and, yes, and going to those events.
JUDGE WENTWORTH:  It’s not golf so much anymore.  
CHIEFJUDGE MOBERLY:  But we’re meeting each other in yoga, right?  

CHIEF JUSTICE LORETTA RUSH:  I have a little bit more positive spin.  I started practicing in the early ‘80s, I was an associate, then a partner while I had kids and I was elected on the trial court bench.  When I look around now I think it’s improved by leaps and bounds. You know, we all teach or go and present at law schools, we see 40, 50 percent of the students are (women). When I see litigants come and argue in my court, a lot are women, so I think we’ve made great inroads. I think (being) talented, hard working, whether you’re a man or a woman, is going to pay off.  So with us in the positions we are now, and we’re all parents, so many young women just sort of flock to us and say “How did you do it?”  Well, it’s tough, you know, that balance –
JUDGE WENTWORTH:  It’s tough.  
JUSTICE RUSH:  — doesn’t end. It doesn’t end when your last one graduates from high school, which I don’t have that happen yet, but hopefully, hopefully in six years I will. But we’ve come a long way.  We’ve come a long way, and I think more diversity within the profession, more diversity on the bench is important. It’s important that our judges look like our population.  If we’re going to have trust in a judiciary, we need to look like the litigants that come before us.  So I’m optimistic, I’m very optimistic with the inroads, and when I look at who’s making partner and the gains from 30 years ago, it was rough. I mean 31, 32 years ago trying a jury case, even going to a small county sometimes and showing up ready to go or having your client meet you for the first time and seeing that you’re a 25-year-old female. So I’m very optimistic and I think just the four of us sitting around here today and when I look out on the landscape, I think there are major changes ahead.

JUDGE WENTWORTH:  And let me just circle back. Why is it called a glass ceiling?  Well, because you can see through it and it used to be when we looked through it, it was all men. It’s not anymore.  We are case in point and in other places there are more women that you can see, and the ceiling part indicates a barrier.  I think that what we need to do is just stop thinking of gender as a barrier and I think young people today are doing that.

IL STAFF:  That sort of leads into the next question that I have for anyone who would like to address it and that is what is your advice to young lawyers that are just entering the profession, whether they’re men or women?  You know, it’s kind of a difficult time in the legal profession right now and they’re looking at fairly significant challenges, economic and otherwise.    

CHIEF JUDGE MOBERLY:  I meet frequently with young lawyers starting out and one of my kids is still a young lawyer. I’d say and there are two pieces of advice I usually impart to them.  One is careers are rarely linear. They are usually sort of a zigzag and it’s unpredictable when opportunities will come, so keep an open mind and always prepare yourself for the opportunity that might present itself to you and be open to doing something a little bit different than what you had thought you were going to do.  And the other thing in terms of young folks who are hanging out a shingle is to be involved in things that you otherwise like to do.  If you don’t like to golf, there’s no point in taking up golf to meet people, but if you love swimming, you love sailing, there are clubs for everything and if you really enjoy it anyway you won’t be wasting your time. You’ll meet people and just meeting people and exposing yourself to new people is where business comes from. A lot of times it comes from opportunities or situations that you weren’t planning to meet a client.    
CHIEF JUDGE VAIDIK:  I’d say the same thing, be open and flexible.  The young lawyer might not get the job, their dream job the first time around and it might not be a job that they even think that they might have liked originally, but be open and flexible. Then once you then get into that job, Robyn’s absolutely right, you never realize where you’re going to end up. None of us here at this table realized that we would end up in the positions that we we’re in.
ILSTAFF:  One thing leads to another.
CHIEF JUDGE VAIDIK:  Yes.  And the other thing is I think there’s this thought now among young lawyers: It’s in vogue to have this work/life balance and that’s really important. But on the other hand, when you start out, you have to have facetime, you have to put the work in. So I would say to young lawyers it’s nice to be talking about the work/life balance but at the beginning of your career you just have to put the facetime in.

IBJ STAFF:  So sort of be realistic about the career that you’re taking on and entering in?    

 IL STAFF:  Good point.
JUDGE WENTWORTH:  There’s a saying that says the harder I work, the luckier I am and I think that’s just another way of saying what you said. And also advice I always give is get involved in the bar association so that you have colleagues. They will serve you the rest of your career, even if you don’t do the same type of law. It’s great to have people that can support you and be mentors to you.

IL STAFF:  I’d like to pick up on something that Justice Rush spoke about and I’ve heard before. We need to have the people, the judges and the lawyers look like the public who is coming into the courts.  We’re here today because women have achieved and are finally holding key positions in the courts and this is the first time we’ve had four women in these leadership positions But it’s still a basically homogenous group:  you’re white and you’re middle-class.  When you look back on your own careers and you look back on your education, society at that time, the opportunities that you have, what do you think has to change, whether in education, in society, in the legal profession itself, to bring more people of color and people of different economic backgrounds into the profession?     

CHIEF JUSTICE RUSH:  Well, one, we weren’t all middle-class, you know.  We weren’t always. I mean I moved 60 times growing up, you know, from Hoboken to the south side, so we all come from different backgrounds, so you can’t put us all in one group as well.  But there’s a lot of opportunities.  One of the things that I asked to take over from Chief Justice (Randall) Shepard and I’m holding on to it in my new role is ICLEO (Indiana Continuing Legal Education Opportunity), which is actively recruiting attorneys of color. We’re really trying to go back even to high school saying that we have financial assistance, we have sort of a pre-law school six-week program to get them ready. We have 23 students this year at all the Indiana universities.  We are trying to actively recruit minority attorneys and we’ve had success but we need to get the word out there a lot more.  Jasmine Parson from the State Court Administration, I went up to Valpo this year and spent a day with them. We have a strong committee recruiting, and right now based on the work done with ICLEO since the 1990s when Chief Justice Shepard started, we have doubled the amount of minority lawyers. So we’re doing it slowly, but we’re doing it because sometimes you have to look at students coming from nontraditional backgrounds. Their LSAT scores may not be what they need to be to get in there or they may not have the supports to get them through law school, so what we try to do in ICLEO is give them the supports.  So we want more.  We sort of pound the pavement to get the applicants we get right now.  I’m hoping that that will increase.  The Legislature has devoted about $900,000 yearly to the ICLEO program.  We have Judge Pyle on the Court of Appeals (who was) an ICLEO.  We have attorneys and judges kind of coming up through the ranks right now.  So it doesn’t just happen, we have to really kind of make it happen.  We hope to have this increased. 

We need to open those doors so it can, and I know with Robyn and I know with regard to other women that encouraged me to even apply, I mean two-and-a-half years ago I never once thought about being on an appellate bench. I had been elected a third time as a trial court judge, was very happily ensconced on that bench up there, but watching Robyn’s journey through the process, and I’ve told Robyn this, watching how she handled the process was a big part of me deciding, you know, “I’ll put my toe in this time.” And I actually went to a CLE that Marty had presented and it was like demystifying the merit selection because it’s sort of a scary notion.  Maybe people in Marion County know how it works but us on the fringes didn’t particularly know it.  Shoot, there she is, this down-to-earth woman telling “I did it, this is how I did it, I survived, it’s very public, but” —  
JUDGE WENTWORTH:  Scared to death.     

CHIEF JUSTICE RUSH:  But what I’m saying is that things don’t just happen, I mean we’re going to have some openings on my bench, you’re going to have some openings on your bench. We really need to be out there to tell people, “Apply,” because if you don’t encourage – All of us here are at this table, right, because somebody encouraged us or planted a seed in us at some point. So with regard to very deliberately looking at the diversity issue and knowing that it’s good for the judiciary, it’s good for people to instill public trust because that’s our commodity. We want people standing outside those courtroom doors thinking, “I’m going to get fair treatment when I walk through there.” So there’s a lot of work to be done, but we are aware of it and we’re moving in that direction.     

CHIEF JUDGE VAIDIK:  So ICLEO, absolutely, Judge Pyle was a CLEO student who then became a law clerk with Judge Darden, who then went out to be a prosecutor, then a trial judge, and then came back and is on the Court of Appeals.  I mean it’s incredible and it’s because of that program along with mentoring. Someone has to mentor people and we all have an obligation to be mentoring people who are more diverse to say, “Here, you can do this, there’s room for you here.  In fact, we encourage you to be here because we want you to be part of our judicial system.”   

JUDGE WENTWORTH:  ICLEO, one of the important parts of it is in the summer for, what is it, six weeks?   
JUDGE VAIDIK:  Six weeks.

JUSTICE RUSH:  Six weeks.
JUDGE WENTWORTH:  We have an intern come in from the program and be in the judge’s chambers. I’ve always had one and I’m committed to the program. Not very many people ever in their career get to work with a judge and it’s a different view. When they start out viewing law from a bench perspective where it’s neutral, where you’re looking at both sides sort of equally, it’s a great way to grow up in the law, I think. And the ICLEO people, that’s one of the great benefits, it gives them a mentor, a person they can call in the judiciary as someone to help them throughout their career.  I’ve written more letters for folks that have been my interns and I think it’s a wonderful program. "People of color,” does that handle everybody?  It’s anyone from a diverse background.  

CHIEF JUDGE VAIDIK:  Economically disadvantaged.    

 JUDGE WENTWORTH:  Economically –     

CHIEF JUSTICE RUSH:  First-time college, first-time –    
JUDGE WENTWORTH:  And it’s ethnically diverse but it’s also sometimes foreign.    

CHIEF JUSTICE RUSH:  It’s primarily ethnically and it’s Indiana and they’re great. They stop by, I mean they’re in the Statehouse, I check on them in the law schools.  
CHIEF JUDGE VAIDIK:  Yeah, we have six in the summer in our court that come and we pay them to be an intern.  We even have a program where we include the Tax Court –

CHIEF JUDGE VAIDIK:  – in the program and we have –     

JUDGE WENTWORTH:  Thank heaven.    
CHIEF JUDGE VAIDIK:  – the students go to federal court, to state court, to small claims court.  Not only do we mentor these young lawyers, we hire them afterwards. We have CLEOs right now, a staff attorney.  I’ve hired CLEOs as law clerks.    

JUDGE WENTWORTH:  I have a past intern that’s working in Washington now.   

IL STAFF:  Well, switching gears just a little bit.  Maintaining civility in the bar is one of the topics that’s always paramount with bar associations and the courts, but as we look in it seems like Indiana judges and lawyers get along fairly well.  Is that your perspective and, if so, what could other states learn from us?  I get the “Michigan Lawyer Daily” that comes out and there is constantly a story in there about judges just going at each other.    
CHIEF JUDGE VAIDIK:  But they’re elected judges as well.  
IL STAFF:  So is that the difference?   
CHIEF JUDGE VAIDIK:  Elected judges on the appellate bench, at least, and there are party politics and it gets nasty sometimes.  We don’t have that, at least on the appellate level.     

CHIEF JUDGE MOBERLY:  We are intentionally collegial in the federal bench here and all of the judges in the building get together.  Justice Rush has joined us before for lunch once a month and one of us hosts the other judges in the building. Actually yesterday we invited Dean Austen Parrish from the Maurer School to join us. But we have a holiday luncheon together. We do a lot of things together intentionally to just strengthen the relationships between us because that’s really valuable. I’ve been on an elected bench for a very long time (Moberly was a Marion Superior judge) and it is difficult when there are competing pressures outside your job. For some people I think it strains their relationships and that’s really unfortunate.    

CHIEF JUSTICE RUSH:  Being a judge can be isolating, I mean it’s nice, so you have to – There’s just five of us on my court, we’d better get along –   

CHIEF JUSTICE RUSH:  – and we do.  

CHIEF JUSTICE RUSH:  Well, the five of us, we get together, we spend every Thursday together.  We sit around the table and we discuss case after case after case, so I think we are very aware of collegiality and we’re aware of civility with regard to starting with us, the bench.  We have litigants come in, we’ve got our questions ready and they may be tough questions, but we go to great extremes not to get personal or to put down because I remember when I was a lawyer and then a trial court judge, you look to your appellate bench. You want that example, but I don’t know if it’s necessarily (because of)  the merit selection.  I mean I was elected on the trial court bench. I started off in the ‘90s with a mentor judge and some of my really good friends were judges because you used to be friends with the lawyers all the time. You’ve got to kind of pull that back because you’re a judge and probably several times a week we’d pick up the phone with each other.  My class of new judges in 1998, we’re still close to this day, so I really count dozens and dozens and dozens of trial court judges as very good friends because of that experience and you need it, you need to have that.  When you’ve got an issue that you want to be able to pull through or an administrative matter, you want to be able to pick up the phone.  I’ve probably talked to six trial court judges on different issues this week, administrative matters, this week.    

JUDGE WENTWORTH:  I think they’re similar, collegiality and civility, and I think that we are the consummate professionals, I mean the bench is just stunningly professional in Indiana and so much more so than – Well, should I name him?  (7th Circuit Court of Appeals Judge Richard) Posner.
IL STAFF:  We’ve all read it.  
JUDGE WENTWORTH:  Yes, exactly.  The thing that strikes me about the way some people – That’s the collegiality and thank heaven that everyone here, the court, the other appellate courts, have included me because I am a one-judge court. I have no colleagues that are anything like me. I’m a different type of a court, and yet I’ve needed to have people to talk to and understand how do you do things to understand if I’m doing them the same way. It is isolating, especially in a one-judge court. But like today there’s a brown-bag I’m intending to go to with the Court of Appeals and it’s wonderful to be able to have that collegiality, even though my position is isolating.  The other side is civility and civility for a judge is we are seen by the public by the written word, other things as well, our public personas and that, but the written word.  So having been on the other side of the bench I know how sensitive folks are about what we write and how we write.  The very small, little adjectives or adverbs we choose to make part of our opinions sometimes can be very hurtful, so I’m very aware of that.  I don’t probably always call (parties or attorneys) out as much as I should. Nonetheless, I think that I am very aware and I think that most of us that do writing are very aware of treating the people, the litigants and the attorneys that come before us, with great civility to be an example. One of the people who was a mentor from afar is Sue Shields, she was extremely –   
CHIEF JUDGE VAIDIK:  Absolutely.  
JUDGE WENTWORTH:  – concerned with civility and wrote very eloquently on it. I’ve quoted her on occasion in that regard, so I think that the bench is very supportive of both of those qualities.

ILSTAFF:  You bring up a point, skip around in our pattern a little bit here, opinions and writing opinions.  As you know, in the “Indiana Lawyer Daily” we write about all of the opinions issued by the appellate courts, so we are reading quite a bit of those and every so often it will kind of take you back a bit that somebody is a little harsh, not all that often, but either —
 ILSTAFF:  Not Posner-level harshness, necessarily.  Well, we are reading those, too.  But  either calling out the trial judge or one of their fellow appellate judges a little bit. I’m just curious, is that something that just as a judge you have to be thick-skinned and learn to take it or is that something that you all are aware of?  It sounds like from what you’ve just said you are aware of that and knowing that it affects civility try to keep that from happening, even though it slips in from time to time.     

CHIEF JUDGE VAIDIK:  There’s no question about it, we know it.  I’ve been a trial court judge, I’ve been reversed by the Supreme Court and I will be reversed again by the Supreme Court and it’s always nice to do it.  I mean we don’t make our decision based on “I don’t want to reverse somebody.” That’s not the reason we do it, but we do it in a respectful way and in a way that’s a teaching way so that it’s a teaching point so people don’t do this again, all right, so that it’s not only for that particular trial court judge but other people as well to say, “This is the new norm, this is what we’ll be doing in the future.” It’s important to be respectful to trial court judges when you’re reversing them and also to appellate court judges.  And on the other hand, too, you know, this is tough work. Trial court work is very, very tough work, and these trial court judges are making decisions in a nanosecond sometimes, evidentiary decisions. When they do well and when they have good, thoughtful opinions and when they go that extra mile, I always try to let people know in my opinion that this court did an excellent job and I think that’s important as well.  
CHIEF JUSTICE RUSH:  We have five sets of eyes on everything, so there are times that you don’t realize that maybe you’ve got that and, lo and behold, after I read an opinion I circulate it to the four chambers and I’ll get a note from maybe Justice (Robert) Rucker or somebody that, “You may want to change a couple of those words in this paragraph.” I thought, “He’s just a consummate gentleman that I work with.” So we pull each other in.  Sometimes when you write, the words take on new meaning or people pick up on a certain thing, so it’s nice, different from being a trial court judge that I’ve got four people and we work on each other’s opinions or we rephrase or “You may want to look at this,” and it’s very helpful.    
ILSTAFF:  Everybody’s got an editor, huh?  


JUDGE WENTWORTH:  There is a time when we have to be honest, though, and if somebody really crosses a line somewhere, I would hope that we would be honest about that and speak out, but we save it for only the – and that’s so rare.    
JUDGE WENTWORTH:  It’s very rare because everybody takes their job so seriously and, as you say, they make decisions in a nanosecond.  I don’t have anything coming to me from a trial court anymore now that the inheritance tax is gone, but I do see things from agencies. They have ALJs and hearing officers and they do their job to the best of their ability and have to make snap decisions sometimes. Then I have the luxury of looking over their shoulder.  
IL STAFF:  I do have a question that kind of plays on that.  You’ve talked about maybe editing yourself a little bit professionally in your opinions. When you’re out in the public do you find you’re having to kind of censor what you say because you’re a judge?  


CHIEF JUSTICE RUSH:  Anything you say people hear it times 10. I have a dry sense of humor, you know. You just have to watch it because you say, you know, “I saw somebody…,”  and you’ll tease them and they’re like, “Oh, can you believe that?”  So, yes, I think you do, you do censor.  I think it’s expected. I think you have to be an example on that and you have to realize that even from the bench. Let’s say you ask a question. My kids have come in and watched hearings and they go, “Oh, Mom, you’re so mean” and I go, “I’m just asking a tough question,” you know.  “This is a question I’ve looked at.” So you need to be cognizant of the fact that people are listening and listening, like you’re all listening, like if I would go off the ranch a little today, I would hear it.    

JUDGE WENTWORTH:  Maybe that’s why so many of us teach because teaching’s a different venue. You don’t really tell your opinions but you get to verbalize more on each side of a question and talk more freely because it’s an educational setting. But anything else we are in a microscope.   
CHIEFJUSTICE RUSH:  But I do think we need to be approachable. I do think we need to be candid. I think we need to be open and transparent, so I mean that’s the flipside of that.  I think there’s a trust level that comes with those types of factors, so you’re sort of balancing those out.     

CHIEF JUDGE MOBERLY:  My husband and I, because he’s a lawyer also, we don’t have a lot of friendships with people who aren’t lawyers because we just don’t meet people who aren’t lawyers. So we have a core group of four other lawyer couples and we are probably unvarnished, or I am unvarnished about my work environment before and now with this core group. They’re all lawyers who also are fairly well known and are also unvarnished and it doesn’t go anywhere, because it’s nice to talk to somebody other than your husband sometimes about things. But outside of that, you know, I wouldn’t criticize a judge. There are a lot of things like that that I wouldn’t consider doing, but I can’t say those words have never passed my lips. I would be disingenuous if I said that.
JUDGE WENTWORTH:  We are human.    
ILSTAFF:  But even issues, do you have to worry about giving an opinion on an issue because it may come before your court?
CHIEF JUDGE VAIDIK:  It may come before the court and so absolutely.

CHIEF JUDGE VAIDIK:  It’s not only that we can’t do that, we can’t do it because of the ethics.  The ethical call, we can’t talk about things that might come before our court. There’s a lot of issues that can come before the court.

IL STAFF:  I’m going to kind of switch tracks here a little bit and, Judge Moberly, I’d like to pick up on what you said – career paths are not linear. I was wondering with each of you at what point did you decide you wanted to be a judge?    

CHIEF JUDGE MOBERLY:  For me I always thought it was a job that was unattainable because I just wasn’t from an Indianapolis family and hadn’t been deeply involved in politics. I just didn’t see that it was attainable but it was always something I wanted to do, and I’ll tell you kind of a funny story.  It’s probably not broadly interesting. But when I was practicing law a good friend of mine, I’d sent her to a lawyer because she needed a divorce and she erroneously later reported to me that this lawyer was going to run for judge, a female lawyer. And I thought, “Uhm, well, if she can do it, I can do it, she’s no better known” or, you know, whatever. So I set about very intentionally doing it and getting involved in politics and going through a program called “The Lugar Series” which mentors young women, or mid-career women, really, to be on appointed or elected positions. I went through that and met women who really helped me through the process and educated me and introduced me to people. So I kind of tell people in a way this is all built on a lie because this woman wasn’t ever running for judge. It was just sort of a misunderstanding, but it launched my judicial career and I feel so lucky because of it. But I didn’t know where the handles were on the pot, you know, where do you grab this project if I want to be a judge? It’s also hard, it was for me and I don’t know if as young women it was for you all or not, to express ambition publicly, to have the boldness to say “I want to be a judge,” you know. I thought people would look at me and go, “Are ya kidding me?” you know, “What is it about you that you think you’re so special?”  I just didn’t have that kind of, I don’t know, maybe it was self-confidence, so it took a while for me to develop that, I think.  You all probably knew from when you were born.  
CHIEF JUDGE VAIDIK:  Oh, no, no.  I started out as a litigator and I was in a courtroom every day. I really respected the judges that were before me. I thought I could never do this, and then the longer that I was in the courtroom and the more that I did this I thought, “You know, I can do this.” I decided one day when I was in front of a judge that I didn’t think had a great demeanor, I decided that I would run against him and the rest is history.  My client who was sitting next to me at the table during this, I said, “You know, I think I might run against him” and he says, “I’m going to be your campaign chairman” and he became my campaign chairman through the victory. Then when I was on the trial court bench I had no idea that I’d ever think about being an appellate court judge, and then there was a fellow trial court judge, Sandy Brook, (who also became a Court of Appeals judge.)  We were prosecutors in different counties but prosecutors at the same time, city attorneys at the same time, and trial court judges at the same time. We started, I can’t believe we did this, once every three months we met. He was from South Bend, I was from Valparaiso, we’d meet in LaPorte County and we’d talk about what we wanted to do in the future. We decided that we wanted to both be on the Court of Appeals and we then investigated how it is that we could do this. We’d meet together every three months to talk about what steps were we taking to get on to this bench and what was needed.
Sandy was first.  He had far more information and far more connections than I ever had, and so we were on the same panel of three (up for) the Court of Appeals when he was appointed.  In fact, when we went to the governor’s office and were interviewed the governor asked me, “Well, you know, why should you be chosen?” and I said, “No, it’s not my turn, it’s Sandy Brook’s turn.” And then the governor was so impressed by that, I think that’s how I ultimately got on the bench.   

CHIEF JUDGE MOBERLY:  Okay, did you know there was going to be another opening when you said that?   
CHIEF JUDGE VAIDIK:  No, I did not.  No, there always is another opening, there’s always another opening. We were a team to get together on the Court of Appeals bench.     

IL STAFF:  That’s a great story.   

CHIEF  JUSTICE RUSH:  I hadn’t thought about it. I was a litigator like Nancy and spent most of my days in courtrooms, bench trials, jury trials in state court and federal court.  While I had a civil-related practice, I did a lot of pro bono with children. I worked with women at the women’s shelter with regard to domestic violence issues and it was actually the pro bono work that got a group that came to me and said, “Would you consider running for” – “We have some challenges in our juvenile court right now.” I remember thinking, “Well, I don’t know that area, I’ve just done it some, I’ve taken some court-appointed assignments,” but I took it. Robyn and I have talked about this, I mean that’s the beauty of our profession. You can take your skill-set and apply it in different areas of the law. And I like what you said because I think we can live our life in chapters. I mean I was a litigator attorney for a period of time, I was a trial court judge, now I’m done, I’m sticking where I am. And you can do that. But I didn’t say, “I want to be a judge” or I didn’t think about it. It was the same thing with regard to the appellate bench. I mean it was just sort of a couple of events happened in 2012. There had been three openings in my court (Indiana Supreme Court), this was the third opening. I hadn’t applied for the other ones and I thought I should apply. I mean it just came, “I should apply.”  There were different events with regard to that particular time, I had talked to Robyn and some other people, but you really –   
CHIEF JUDGE MOBERLY:  And the women judges made a call-out to you, don’t you think?  
CHIEF JUSTICE RUSH:  Yeah, yeah, yeah, but I think what you do if you’re thinking about being a judge, you’ve really got to mind your Ps and Qs from Day 1 because what I didn’t realize was how public the process was …  I mean the people and the vetting, it’s just so public. You really kind of think, “Well, what do I have?”  You know, I was looking at my kids thinking, “What have you done on this for that?” So I think some of it is timing, you know, if you’re the right person at that time.  Do I think there are not very qualified people throughout the state?  We all know that there’re very qualified people.  We know that we were at the right place probably at the right time and we are aware of it.  But what I would tell young attorneys, they’ll say, “I want to be a judge some day.” I say “Get a broad base, don’t just make law your life. Get involved in bar associations. Get involved with the community. Read other things. Get your knowledge base as large as you can because the kind of issues that come into the court, you know, there’s straight-up cases but a lot of cases we get aren’t straight-up cases and sort of you bring all of that to the table when you’re a judge.”  But each one of those chapters were great. I love those chapters.  I don’t think I’d be where I was today if I hadn’t practiced, if I hadn’t had the years on the trial court bench and seeing what it was like. I don’t think I’d be where I was today if I had to raise 10 million dollars, I mean if we were elected, if it wasn’t merit selection.  I have spent a lot of time with other justices around the country and when I see what’s going on. We’ve got a good system here in Indiana.  Same thing Nancy said, you know, first time I ever met the governor was my interview with him.  I did not feel I was politically connected, and it was quite the interview.  He asked me questions and I asked him questions, but I think we have a good, solid selection process on our appellate bench that you don’t have your judges out there raising tens of millions of dollars in order to get selected and that a juvenile court judge from Tippecanoe County could end up, you know, being on the Indiana Supreme Court. That’s something.     

JUDGE WENTWORTH:  And then there’s me that spent 13 years not practicing law and I got to be a judge. I was working in an accounting firm.  It’s amazing that I’m a judge but it’s even more amazing that I am an attorney because at 15 I told my parents I wanted to be a lawyer and they patted me on the head and said, “You’ll be a teacher or a nurse.” And I went and got a teaching degree and was an English major, started my own business, got married and had two children, and never lost the bug to want to be a lawyer. Then I became enamored of tax planning in my business, so I went back intentionally to law school to become a federal tax attorney.  Hardly ever practiced in the federal area, but my first job was clerking for my predecessor. I could not have been a trial court judge, maybe if I had started that direction early on I could’ve, but my 20-year history of practice was in state taxation, so there was only one position I ever would’ve chosen. And I never thought it would be available because Judge (Thomas) Fisher is only not even a decade older than I am and I thought, “Well, gosh, he’s going to live out his” – Well, he retired early.  He called me and said, “I need one of my former clerks to write something in the newspaper, I’m going to retire,” and so I got together with some other folks and we wrote something up from his former clerks. Then they would say, “Are you going to put your hat in the ring?” and I thought, “Gosh, could I?” I had just lost my best friend to a brain disease, she had just died. I had no intention of doing anything to disrupt my life, but when one of my friends called and said, “Well, so-and-so is going to try to get at that” and I didn’t think that that person would make a very good judge and I thought “Well, I will never forgive myself if I don’t just put my hat in the ring.” I did and I was successful. I’m surprised, like the rest, that it happened. I remember sitting outside the Supreme Court conference room waiting for my interview and all the bloggers sit around and it’s the most frightening thing. And then the chief justice of the Supreme Court, who’s always been my boss because he was chief justice when I started practicing, so horribly terrifying and I’m sitting out there –   
CHIEF JUSTICE RUSH:  I don’t know if I’ll have that same impact.     

JUDGE WENTWORTH:  And so I’m sitting outside and I’m first, first interview, and I just had to tell myself what I had learned in an accounting firm and that was “lead from the front.” I went in there and I just wouldn’t let myself think nervous thoughts. I just said, “I’m going to be myself and smile” and was successful.
IL STAFF:  Good advice.
JUDGE WENTWORTH:  And I had never, ever met the governor either. I am not a political person, but it was a wonderful experience all the way around.   
CHIEF JUDGE VAIDIK:  Yeah, going back to the beginning of talking about the difference and how women have advanced, and we have made so many great strides, I’m thinking back as I’m listening to your story, the first woman lawyer I ever saw was when I was 20 years old and that was Mary Harper and she’s still on the bench. That was the first woman lawyer I ever saw personally upfront.
CHIEF JUDGE MOBERLY:  Well, that was a good one to see.  
CHIEF JUDGE VAIDIK:  And that was a great one to see and she was my mentor for years and years.   

CHIEF JUSTICE RUSH:  Mine was Sarah Evans Barker, (she) was the first judge, I mean I had a case in front of her and she was something.

CHIEF JUDGE MOBERLY:  Oh, so you knew her beforehand?   
CHIEF JUSTICE RUSH:  I knew her.   

CHIEF JUDGE MOBERLY:  I thought she had just reached out to you as –     

CHIEF JUSTICE RUSH:  She doesn’t remember me.  I think I lost, I’m pretty sure I lost the case, but she impressed me.  I don’t think I had the same impact.    

CHIEF JUDGE VAIDIK:  The first woman judge in Indiana, state court judge, was Sue Shields.
JUDGE WENTWORTH:  Sue Shields.  She was on the Court of Appeals when I was a clerk.  
CHIEF  JUDGE VAIDIK:  Yeah, the first woman judge in state court.   

JUDGE WENTWORTH:  She was great.     

CHIEF JUSTICE RUSH:  She’s still doing mediation, she’s still a whale of a good mediator.    

CHIEF JUDGE VAIDIK:  And she’s still doing mediation and has made a tremendous impact, but in a short period of time –  

CHIEF  JUDGE VAIDIK:  – here we are going from never seeing women lawyers, let alone women judges, and the four of us are sitting around the table, it’s amazing.
CHIEF  JUSTICE RUSH:  I think what Marty said was really good. I mean when you go into those interviews you have to – and I remember I had a moot court coach in law school that said, “Speak in your own voice.” For women, “Speak in your own voice, don’t try to be somebody else, don’t try to act like you’re somebody else.” So when you go into those interviews and tell people, as you get people to apply in the future, just be yourself. I mean just be yourself. I mean if you try to speak like you’re somebody else or take on a persona that’s not your own whether you’re trying a case or acting as a judge, it doesn’t feel right.    

IL STAFF:  I’m curious since you’ve been in your leadership roles on the courts and various courts for a while now, is there a particular task or duty that, good or bad, that you were surprised fell to you?     

JUDGE WENTWORTH:  Budget, I never knew I had to be a politician, and every two years you’ve got to trek over and ask for money from the Legislature, which means you have to hobnob with these people who are elected. I didn’t realize that I had to do that and it was very frightening. I remember the “lead from the front” advice I gave myself.  It’s very enjoyable, though, because I like people, so I just attack that like I do everything that I have to do in public. I just am personal with each person I talk to, and I try to do my homework first. I always like to have my research done and my homework, and then I go and I’m friendly and try to be informative through that, but it was frightening and I didn’t realize I was going to have to be political at all.    
CHIEF JUDGE VAIDIK:  I would say we’re a collegial court, we build consensus, and I’m used to building consensus with groups of three on our decisions, so two of us would meet and we’d work together to try to have one opinion. Now all of a sudden it’s 15 and we’re administering the court collegially, sharing power, and we need consensus. I didn’t realize the amount of time that it would take to go to my colleagues to build consensus, and we have so many issues right now.  Our administrator’s going to be retiring in September, Steve Lancaster, who’s been there for 25 years, so we have to hire a new administrator.  Electronic technology is coming so rapidly right now and you know, you’re (Rush) the push here.  You know, we have three electronic projects going right now and everyone needs to decide on what we’re doing, how we’re going to handle this, and in some sense it’s being pushed by the Supreme Court, case management’s coming in January 5th … So it takes a lot of consensus-building and I didn’t realize that it took that much time to do it.    

JUDGE WENTWORTH:  Nancy’s the quintessential cat herder, herding cats.    

CHIEF JUDGE MOBERLY:  The question was, you know, things that surprised us and I can’t say that there’s anything that surprised me about being chief judge because I knew I would be for quite awhile and so I was sort of in training for a long time. But the one thing that’s kind of been a challenge, and I know you (Rush) in particular do this even more than I do, is giving speeches, oh, my goodness.   
JUDGE WENTWORTH:  Oh, I love to do that.    
ILSTAFF:  You love to do that?    

JUDGE WENTWORTH:  I love them.   
CHIEF JUDGE MOBERLY:  Can you do mine?  When I was president –   
JUDGE WENTWORTH:  I can talk about tax or pro bono, but other than that –    

CHIEF JUDGE MOBERLY:  When I was president of the Indiana Judges Association, you speak at every robbing and every retirement and we’ve had a lot of retirements and investitures on my court and lots of other occasions to speak. If it’s on the topic it’s one thing, but when it is an occasion that is important to somebody, I just feel huge pressure to say something meaningful or memorable.     

CHIEF JUSTICE RUSH:  Of course, she had me speak at hers, yes, so you dumped that on me, right?   
CHIEF JUDGE MOBERLY:  And that was the wisest decision I’ve made on the bench.   
CHIEF JUSTICE RUSH:  I think the administrative, You look at the wheels of justice and you look at the engine, the administration of justice, you look at the trial court judges. We have 400 trial courts, you’ve got 500 judicial officers, the Supreme Court agencies have about almost 200 employees. We do attorney discipline, judicial discipline.  So we really have a big part in the administration of justice and it’s so important that that part be there for the opinions and the case writing and the rest to go out, but it’s a big enterprise. Nancy and I have a very good working relationship. I’ve called on her and different appellate judges regularly that have helped out with the administration, but I think that and then the amount of time we spend on attorney discipline as well, not having done that part before as a trial court judge. There’s a number of cases, but the administrative responsibilities for a justice are a lot.  I remember Justice Rucker saying probably he spent 40 percent of his time on administrative and that’s not uncommon.
ILSTAFF:  How much of your time as chief?    
CHIEF JUSTICE RUSH:  Oh, you know what, right now it’s about 80 percent administrative and 80 percent legal writing. [LAUGHTER]  I’ve got budget hearings, I mean with regard to financing, our budget’s about 145 million dollars.  We are looking at implementing some new technologies.  Sorry, Nancy.  When I came to the bench, I went to vote on my first case in 2012 and I hadn’t seen the – You know, the AS/400, the DOS-based green screen, that’s our technology.  I remember, “This can’t be right,” and so I went down to (Justice Brent) Dickson’s office and I called (former Justice Frank) Sullivan and they go, “Well, we’re trying to implement in the trial courts first,” so we are moving probably faster than –  
JUDGE WENTWORTH:  No, not fast enough, not fast enough.

CHIEF JUSTICE RUSH:  – technology, the efficiencies that can come.    
CHIEF JUDGE VAIDIK:  Well, it depends on the judge, I mean some of our judges are, you know, dinosaurs –

JUDGE WENTWORTH:  Well, we have to force people –  
CHIEF  JUDGE VAIDIK:  – and saying “Oh, my goodness, I don’t want to do this.”
JUDGE WENTWORTH:  The federal bench has been electronic for so long.  
CHIEF  JUSTICE RUSH:  Robyn sings their praises.   
JUDGE WENTWORTH:  And we can’t be the bumpkins that are lagging behind, we need to be – I had to unlearn track changes and write everything out because my clerks and no one in my office would do it.     

CHIEF JUSTICE RUSH:  And just taking cases home, the only way you can carry cases out of the Statehouse are in the cloth grocery bags.    

JUDGE WENTWORTH:  Exactly, exactly.    

CHIEF JUSTICE RUSH:  That north door there’s a wind issue and I’ve been stuck, literally stuck, with two grocery bags of transfer briefs going out the door.     

JUDGE WENTWORTH:  I have to pull them with wheel snow because –
CHIEF JUSTICE RUSH:  And I remember the head of the budget committee came by and goes, “What are you doing?”  I said “We need technology.”    
JUDGE WENTWORTH:  Technology, absolutely.    

CHIEF JUDGE VAIDIK:  There’s no question about it, it’s a good thing. This is all a good thing, it’s just a change and change is hard.
CHIEF JUDGE MOBERLY:  We can work from home as if we are at the office.  The interface in the federal government is so great. I mean it’s secure, but I can sit at home on my computer and it is just as fast as if I’m at the office. It is my desktop at the office. It is amazing and it’s fully electronic.
CHIEF JUSTICE RUSH:  Oh, Robyn bragging again about the federal system.
CHIEF JUDGE MOBERLY:  It is. It’s awesome.   
CHIEF JUSTICE RUSH:  I keep trying to get the state court judges out of the federal system, you keep taking them into the federal system.
 ILSTAFF:  2015’s the year it sounds like.

CHIEF JUDGE VAIDIK:  Yes, it is, it will be the year.    

CHIEF JUDGE MOBERLY:  There’s a lot of variables on that year.
CHIEF JUDGE VAIDIK:  Yes, yes.     

IL STAFF: I wanted to talk a little bit about caseloads.  I know that there’s a push this year in the Legislature (IL staff reporter Marilyn Odendahl) wrote a story about some counties seeking magistrates to help handle the caseloads.  I was just curious, is your opinion the caseloads are increasing in state courts or is it still an effort to ask some of these judges to relieve the overworked courts? What’s being done to deal with these caseloads?

CHIEF JUSTICE RUSH:  I was on the study commission this summer, Courts and the Judiciary, and I saw all the judges come. It’s an ongoing issue because it may not be just the volume, the number, but it’s the type of issues that come before the court.  When you see more and more specialty courts coming up and the time it takes, you look at implementing evidence-based decision-making, criminal code reform, the cases are much more intense than before and they are requiring more work by the judicial officers. So you’ll have some courts that have got a caseload as if it’s three judges dealing with it.  We met with the Strategic Planning Committee.  The court just talked about this two weeks ago with regard to caseloads and, really, we are going to update our weighted caseload system. We think that’s important to give the Legislature something tangible to look at with regard to making sure our caseloads keep up and going and it’s an issue that we need to take on as part of our administrative responsibilities.  We had worked with the Legislature to say that we’re going to look at that and we’re going to follow up because some of these judges, even if they’ve got a judicial officer, there’s nowhere to put the judicial officer.

And it’s not just about caseloads. I got a call from a trial court judge last month saying, “We’re out of paper, my county,” the crunch with county funding of the staff and the equipment, with the state court funding of the judges, or “I’ve got a drug court program and I have no funding for drug screens.” So the crunch with regard to a county saying, “You’ve got to cut back.” We don’t want to get to where Kentucky was where Kentucky closed their court system down one day a month for a while, but it’s tight. It’s very tight with regard to counties paying utilities, footing the bill for probation, footing the bill for indigent counsel, which are all important.  We have 450,000 people living in Indiana that English is their second language and this is mostly county funded, so with regard to the caseload it’s not just sometimes getting the judicial officers, it’s also finding the place for the judicial officer, making sure the judicial officer has the correct amount of staffing, but funding the trial courts so that justice can get out the door and we can maintain the system is a huge priority.  The ABA last year declared that it’s their No. 1 priority and for me as chief making sure that we have a well-funded, efficient judiciary so that we can have fair and open courts and accessible justice is huge.  So I listened to every one of those judges and I was thinking about all of the treks they’re going to have to make up here, all the work that they’re going to have to do with regard to making sure that … they can get their cases out the door because in the juvenile area we have implemented time standards and performance measures. We don’t want children staying, this is just an example, in foster care forever.  Well, what does that do? “Well, Judge, we want you to have a hearing every three months and we want you to do the paperwork and send it in to us showing that you’re having a hearing every three months,” so we require a lot of our trial court judges, so making sure we have enough judicial officers to get that done is a huge, huge issue.    

JUDGE WENTWORTH:  And I can only speak to a teeny piece of that with my hat on as Pro Bono Commission chair and that is there’s a crisis in pro se litigation and it’s clogging the trial courts. We’re trying to address it in so many ways.  The Supreme Court has several committees and organizations that are trying to directly affect it.  We get all the IOLTA funds that go toward volunteer attorneys, but we’re continually trying to improve volunteerism to help pro se so that people have representation, but it is slower and harder for trial court judges when it’s a pro se litigant.    

CHIEF JUSTICE RUSH:  We travel the state and we have district meetings where we meet with all the trial court judges, the five of us. I had my first go-round last year and we’re doing it again in a couple of months and we hear from all of the trial court judges, “What are your concerns, what” –     

JUDGE WENTWORTH:  That’s the first thing they say.     

CHIEF JUSTICE RUSH:  They talk about and they all attend, the Court of Appeals and Judge Wentworth as well, are invited to attend those district court meetings. They talk about the crunch, like, “We don’t have paper.” They’ll talk about what methamphetamines are doing in some of the rural communities, “It’s taking our resources, 70 percent of the people that appear before me are without an attorney.”  The amount of time it takes for a judge when you’ve got a pro se litigant trying to navigate the waters is hard, so keeping our ear to the ground and listening, and the relationship and trust that we build with the trial court is huge. We’re geared up, I think within a week we’re covering the state.  We do two or three meetings a day. We meet in the district and it’s like open-mic time where the judges talk to us.  We have required annual meetings and judicial trainings where we see them regularly, but this is just geared to “What are your issues?  Bring them to us so we can see what can be done.”

CHIEF JUDGE VAIDIK:  It’s not only going out to talk to the trial judges but it’s also going out to the community, I mean we’re the face of justice and it’s so important for us to get out into the community and meet people and meet people that we’re serving. We have an Appeal on Wheels program –    
JUDGE WENTWORTH:  It’s a fabulous program.

CHIEF JUDGE VAIDIK:  – which is has been very, very successful and good where we go out and do oral arguments throughout the communities just to reach outreach because we are the face of justice and it’s an important responsibility that we have.  Sorry I cut you off about pro bono.

IL STAFF:  No, I was just going to mention the pro bono problem has been around for a while. Are there any novel things that courts can do?    

CHIEF JUSTICE RUSH:  She’s the chair, she’s the chair of our pro bono.     

JUDGE WENTWORTH:  We’ve just instituted – The Supreme Court has adopted a new rule for mandatory reporting of pro bono activity and people will start counting their pro bono hours starting the first of the year in 2015. They’ll report it then the next year when they sign up to get their licensure.  It’s mandatory.  We’ve made it so that it’s not going to be punishable by anything because you can’t sign up and register for your license without filling in the box, so you’re going to have to put something in there. People think that was adopted to increase volunteerism and it will change the numbers that we’ve had in the past and it’ll probably be on the upper end.  Nonetheless, the reason for it is to have a baseline to measure from that’s more accurate. Then we can see whether our programs that we set up to assist low-income people with legal representation, whether those programs are making any inroads.  We can’t really measure how many people have unmet needs, it’s very difficult to do that.  We can measure how many lawyers are spending their time giving volunteer legal services, so we’re focusing on that end. 

The beauty of Indiana’s solution to things is it’s not a one-size-fits-all. We have other areas that we are doing. We have paid provider legal services organizations. We have charitable organizations that are doing things. We have special courts now, veterans courts, drug courts, things like that that find solutions to make sure that people move through, so we are addressing it in many ways.  We also have a new committee and I’m not going to remember the whole thing, it’s the Indiana — it’s ICEACLs, I-C-E-A-C-L-S, I don’t have a clue what that stands for.  The “I” is Indiana. Nonetheless, in other states that would be called an access to justice organization.  It’s sort of a sister organization at the moment that’s looking overall at our delivery system for legal services to the indigent, whereas the commission I’m chair of is more focused on getting the volunteerism of attorneys using the IOLTA funding throughout the state. We’ve got many ways of attacking it and that’s a wonderful way, I think, of trying to help because one solution isn’t going to solve everything.  Anybody else want to add?     

CHIEF JUSTICE RUSH:  I’ve been to the law schools this year and talked to them and they’ve provided – I mean some of the numbers are staggering, like Notre Dame law students did over 40,000 hours of pro bono, McKinney had close to 30, Bloomington, Valpo.  I think that’s important.  Leadership Development Academy picked Terre Haute, kind of a distressed area in Terre Haute, to have young lawyers go down and provide a day of services.  I went down there and 175 people showed up for free legal advice in that one day.  You know, the “Ask a Lawyer” that the bar association’s having, and there’s a lot of energy and I think kind of getting the culture starting in with different clinics and starting in law school with regard to young lawyers.  and plus getting lawyers to realize that you can take a case even if it’s outside of your comfort zone because, again, you’ve got that skill-set.  One of my first cases on the Supreme Court, I remember Mary Larimore from Ice Miller, she took a pro bono case, came all the way up, came all the way up, and she won.  It was a case that was out of her comfort zone, but when you ask Mary at the end of her career, “What do you remember?” she’s going to remember that case that went up.  So I think it’s a great question.  I think we always have to have an eye towards different ways, but I tell you, when you saw those 175 people show up in Terre Haute that day and those young lawyers down there, they’re like racehorses, you know, and I thought it was great.     

IL STAFF:  Well, the number that you mentioned, 70 percent, the judges said 70 percent of the people –

CHIEF JUSTICE RUSH:  If you throw out small claims, if you take out the small claims and have just the civil cases, I think the snapshot that we showed it was close to 40 percent of every case.     

ILSTAFF:  That’s still surprisingly high.  
CHIEF JUSTICE RUSH:  That’s divorces, that’s guardianship, that’s –     

JUDGE WENTWORTH:  Everything.  
CHIEF JUSTICE RUSH:  – civil litigation.    
CHIEF JUDGE MOBERLY:  Not all of it is indigent.
CHIEF JUDGE VAIDIK:  Right, right.  

CHIEF JUDGE MOBERLY:  There are a lot of people, I’ve observed in both courts I’ve been in, that there are people – It’s more accessible, the Supreme Court has made forms available online.  
CHIEF JUDGE MOBERLY:  So a lot of people choose to be pro se who could otherwise choose to hire an attorney and they, for their own personal reasons they’re free to do that –     

CHIEF JUSTICE RUSH:  That’s a good point, right.    
CHIEF JUDGE MOBERLY:  – choose to represent themselves.
CHIEF JUSTICE RUSH:  You’re seeing more and more of that.  
CHIEF JUDGE MOBERLY:  So taking a snapshot of pro se is real informative but it’s not equivalent to indigent pro se.     

JUDGE WENTWORTH:  Some people want to do it themselves, they do it themselves, and they don’t think that they should have to pay someone else to do it.    

CHIEF JUDGE VAIDIK:  And it’s not only on the trial court level. We just did our statistics for last year of pro se, 24 percent of our cases have a pro se litigant.   
CHIEF JUSTICE RUSH:  We have a lot on our court as well.

CHIEF JUDGE VAIDIK:  24 percent, that’s incredible.  
JUDGE WENTWORTH:  We have many pro se even in the Tax Court.  I would say that few of them are indigent.  
 IL STAFF:  For the Court of Appeals, though, is a lot of that driven by inmate appeals?   

CHIEF JUDGE VAIDIK:  There’s inmate appeals, there’s workforce development, unemployment compensation appeals, there’s a lot of divorce cases that are indigent appeals.
CHIEF JUDGE MOBERLY:  Civil litigation cases.   
CHIEF JUDGE VAIDIK:  Civil litigation.

IL STAFF:  There’s one more question that we just were curious about.  There’s been a debate on NFP versus for publication.  NFP you can’t cite, for publication you can, and there was recently a push by the IndyBar to have NFPs be citable and that was rejected.  I’m just curious if NFPs can’t be cited, why spend so much time … on an opinion that can’t be citable when in other states that write very short opinion, “Affirmed,” “Dismissed,” “Reversed. ” I’m just curious why spend so much time on opinions that aren’t citable.
JUDGE WENTWORTH:  Do you have not for pubs?
CHIEF JUDGE MOBERLY:  Everything’s published.
CHIEF JUDGE VAIDIK:  Yes, because every litigant matters and it’s important for us to let the litigants know why they lose and not lose. It has to do with perception of justice, but every time you write an opinion, there’re two reasons that you write an opinion at the appellate level. One is to resolve the dispute between the parties. The other is for future direction as to the law, all right, and so we want to make sure on all opinions that we resolve it and that each litigant knows why it is that they won or lost the case.  The second part of the job takes a lot of work, too.  How will this affect the law in the future?  And so if you think about 24 percent of our cases are brought by pro se litigants, I mean they’re not brought up to the – In many, many cases we can’t rely on the research, all right, and we’re not to do the research for people. So that second part of the job we do only in limited cases where we really triage our cases, so you have all of these cases here, all of these cases, and we have to decide triage, okay, what’s going to be for pub and what’s going to be not for pub. The ones that are for pub we do that extra bit of work to make sure that it speaks to future cases, but that doesn’t mean that we shouldn’t be working on those cases that are telling people why it is they won or lost.  We hope we never get to that point, and I think that’s part of the reason that my court has been so united against not making every decision for publication because if we do, then what we’re going to have to do on some of those cases are just say “Affirmed,” just like they do in other states, “Reversed,” and we don’t want to have to do that. We want to be able to give a decision to every single person and they know exactly why they won or lost.  Does that make sense?     

IL STAFF:  That makes sense.     

CHIEF JUDGE VAIDIK:  And our court is really very much united on not having every case for publication.

IL STAFF:  Is there something, some criteria, that puts a case over the bump to be for pub versus not for pub?  
CHIEF JUDGE VAIDIK:  We have a trial rule on it. If it’s a novel case, if it’s a new law, if it’s a first-impression case, if it’s something of public interest, there is a trial rule that we follow in terms of when it becomes for pub or not for publication. And really that’s a misnomer, everything is for publication, everything’s for publication.
JUDGE WENTWORTH:  That’s why it’s not called a memorandum decision, right?   
CHIEF JUDGE VAIDIK:  Whether it’s citable or not citable is really the question.   
IL STAFF:  So why do you think that a lot of attorneys want to be able to cite not-for-publication opinions?     

CHIEF JUDGE VAIDIK:  Frustration, because what they’re doing is they’re doing all of their research and they find what they think is the perfect case, and we might not have even thought of the issue that they’re bringing up in the future because we’re not looking at it for the future as much as we’re looking at it for resolving this dispute between the parties. And so they find the perfect case, which is a noncitable case, and say, “Oh, my goodness, we want to be able to use this and we’re not allowed to do that.” It’s not that they can’t cite the reasoning, all right, they just can’t say, “This is how you ruled in State v. Jones.”

JUDGE WENTWORTH:  They just can’t cite it.
CHIEF JUDGE VAIDIK:  They just can’t cite it.
IL STAFF:  Their case may end up being the for-publication case –     

 IL STAFF:  – with that reasoning in it.  
JUDGE WENTWORTH:  It’s a little different for me because I’m a special court of limited jurisdiction but with an exclusive voice of making a body of Indiana tax law, so I always – My opinion and my predecessor’s opinion is different. He did a lot of not-for-pub cases. I think I’ve done one. I might have a second one that I’m going to do because it was just not trans – I just can’t publish it to be cited because I’m going to resolve that case.  Like you said, it’s just not something that was well enough done that I want it to stand for this proposition and make precedent, but I truly believe everything already is published, so my job is to create a precedential case. So you’re going to see very few cases in my tenure that are not-for-pub because of that.  

Now, having said that, we’re going to be taking a look at the Tax Court structurally and everything else to see if we can’t do some things to help us be more nimble in getting cases decided. One of the things that we’ll be looking at, hopefully, is something that was supposed to be looked at in the last 28, 29 years but never was, which is our small claims.  We have a Small Claims Rule, and you’re a small claim in the Tax Court if you have a controversy of $5,000 of the 44 listed taxes of the Department of Revenue, or if it’s a controversy of the assessed value in property tax of $45,000 or less. Those are untenable, I mean who’s going to come?  We’ve had some small claims, but why would you want to do a small claim?  There’s no benefit.  If you win and it’s a small claim, all you get is your $190 back, that’s the only difference between that, and there’s no difference to me. I have to spend the time writing and it’s required of me to always write and always do findings of fact and conclusions as my charge.  So we’re going to look at that and see if we can’t streamline that, make it so that it’s more of a benefit to both litigants and to the Tax Court.  I don’t know, maybe it’ll not ever be used even if we make it more liberal, or it may open floodgates and all of a sudden we’re going to have a lot of people coming in.     

IL STAFF:  We will follow that with you, that’s interesting.   
JUDGE WENTWORTH:  So that’s just one of the things that we’re going to look at, but certainly that’s one of the things that we will do.
 IL STAFF:  Well, thank you all so much.

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