Editor's note: This story has been edited for clarity on the pilot program.
Judges in four Indiana counties soon will have some help with complex motions thanks to a bill passed by the Indiana Legislature.
House Enrolled Act 1047 creates a court motion clerk pilot program that will be used in Owen, St. Joseph, Tippecanoe and Vanderburgh counties and begin sometime this fall. The program will give judges in those counties access to what will start as a 10-member pool consisting of senior judges and third-year law students from Indiana University’s Robert H. McKinney and Maurer schools of law, Notre Dame Law School and Valparaiso University Law School, Indiana Supreme Court spokeswoman Kathryn Dolan said. A judge can call upon the members to assist with researching and drafting orders on complex motions when a judge may not have the time to handle the task. The number of pool members could grow depending on need.
The pilot program will be administered by the Indiana Judicial Center and will run for two years. At the end of that time, the Judicial Center must send a report to the Interim Study Committee on Courts and the Judiciary. The report must include the number of petitions for help, the costs associated with the program, the expected costs of expanding it statewide and other recommendations for making the program run smoothly, according to the bill.
Indiana Supreme Court Senior Judge Brent Dickson and Director of Trial Court Services Tom Carusillo will work to fill the pool with senior judges, with the judges letting them know if they are interested, Dolan said. Senior judges could work on site or remotely, but that hasn’t been determined yet. Law students will participate through an externship program at their schools and will be on site in the counties they are needed. Judges asking for assistance will have the ability to ask for a senior judge or law student.
Rep. Thomas Washburne, R-Evansville, authored the bill. He said it was based on his experience as a lawyer. During his first job as a federal law clerk for a U.S. District Court judge, he learned how much work it can take to draft orders on complex motions, and he wanted to give Indiana state judges some assistance.
“I don’t know how state court judges handle it,” Washburne said. “They get complex motions in addition to their routine run of criminal work and family law. Sometimes they have to bring that work home.”
That can mean either falling behind on work or doing a rushed job, which he said is not the fault of the judges.
He said he had a conversation with former Indiana Supreme Court Chief Justice Randall Shepard who suggested maybe senior judges could help, and Washburne thought of utilizing law students. The bill had been introduced for a couple of sessions before being approved in the Legislature this year.
Washburne said he’s not trying to abdicate the duties of a judge, but to make their lives easier by giving them assistance when they need it. He said not only could this help judges, but could also help lawyers who practice in state courts by giving them more complete opinions.
“It’s often frustrating when you receive a response to a motion to dismiss or a motion for summary judgment and you think you wrote a really good brief, you get it back basically stamped by the judge and you wonder, ‘Did the judge even consider this?’” he said. “This way you’ll know exactly where you stand and not have to wonder about the result.”
Tippecanoe Circuit Judge Tom Busch is excited about the possibilities the clerk pilot program could provide.
“I have had a few cases that would have really benefitted from this,” he said. “One that involved several billions of dollars of damages claimed from fraudulent sales of bonds during the course of the financial crisis and on either side were big banks. I had to learn a lot in a short period of time and the assistance of a law clerk or another competent legal professional assisting me would have been a great benefit. I got some students from IU McKinney working on the subject to help me, but having a formal system to provide help would be great.”
Busch said it’s not common he would need that kind of help, estimating he’s had this type of case perhaps a dozen times in his 14 years on the bench. But he sees a wide variety of cases and sometimes handling them effectively, learning what the law is and handing down a fair decision can be tough.
“The more complex a case is, the more complex the educational process is, and a lot of times you have to deliver a decision on short notice, which means more of a risk of an incomplete decision. This (program) reduces that risk,” he said.
Busch said he saw “no downside” to the program and said this may be the only way he gets a law clerk.
“I don’t think I’m ever going to convince the county council to give me a law clerk,” he said.
Vanderburgh Superior Judge Les Shively also is looking forward to participating in the pilot program.
“I have a pretty heavy docket and it can be hard to find the time to do the necessary research,” Shively said. “This is something that will help keep cases moving in a more timely fashion.”
He agreed with Washburne that this will also help the quality of opinions coming out of courts.
“We can explain the reasoning of the court, better cite rules and citations, and help litigants understand the reasoning behind the rulings. If later there is a challenge at the appellate level, it will make those rulings a lot easier to do as well.”
Shively said he could see judges using the program in a lot of cases from complex divorce cases to property cases to temporary restraining orders where the court is required to make findings.
“Once my colleagues know it’s out there, they’ll take advantage of it,” Shively said.•