Attorney Adam Sedia, representing the mother against Ball State University, countered the offensive by enlisting the Lake County Bar Association’s family law and juvenile section to submit its own amicus curiae brief. The section used the opportunity to make the argument that withholding the transcript punishes the child rather than the parent responsible for the unpaid tuition.
The unanimous Indiana Supreme Court found for the school in the 2015 case, Ball State University v. Jennifer Irons; in Re the Marriage of Jennifer Irons and Scott Irons, 45S03-1503-DR-134. Even though he did not get the win, Sedia did get an idea for establishing an amicus committee at the bar association and creating a process for attorneys to request friend-of-the-court briefs.
Now president of the Lake County Bar Association, Sedia followed through and announced the new committee in June. He sees the group as helping to fulfill the association’s mission by giving a voice in consequential cases to the attorneys and judges in northwest Indiana.
“I want to make this organization, in addition to fostering civility and community service, into a real advocacy group for the profession,” Sedia, an associate at Hoeppner Wagner & Evans LLP in Merrillville, said.
Debra Lynch Dubovich, family law partner at Levy & Dubovich in Merrillville, serves on the amicus committee along with Kevin Steele, a civil litigator at Burke Costanza & Carberry LLP in Valparaiso, and Mark Bates, a criminal lawyer with a solo practice in Schererville.
Neither Sedia nor any of the committee members are expecting a flood of requests for briefs. Still, Dubovich said the new guidelines that explain how to ask for the amicus help will eliminate the dance for approval. Attorneys now have a procedure for soliciting a brief, and the bar association has a procedure for deciding whether to grant the request.
Previously, lawyers wanting a brief had to shuffle between governing bodies at the bar association.
Dubovich recalled the 2010 Indiana Supreme Court case In Re the Paternity of N.L.P.; R.P. v. L.S. n/k/a/ L.B., 45S03-0904-JV-133, where the trial judge had reduced the guardian ad litem fee. The parents had requested the GAL and signed a contract that set the bill rate. But the judge’s decision, Dubovich said, “(turned) contract law on its head” and if it was upheld could have impacted agreements well beyond guardians ad litem.
The family law section felt strongly about the issues and had a consensus on the position the bar association should take. Yet to get approval, the section had to figure out who to ask then had to keep presenting its arguments to different association officials who deferred a decision until getting input from others.
In the meantime, Dubovich noted, the clock was ticking on the appellate deadline.
The new guidelines make the amicus committee the gatekeeper with the power to nix a request outright or pass it along to the executive committee, which has the final say. Then the executive members must report their decision to the entire board of directors.
Of an issue the committee would approve, Dubovich said, “It’s got to be something significant that is going to affect all the members.” A brief will only be filed, she continued, if the association lawyers are speaking in a unified voice.
Reading, writing and rousing
Finding consensus issues will be the main concern for the committee. Steele explained the intent is to write briefs on subjects that are important to the bar as a whole rather than to take sides in a dispute and give a voice to only some of the association members. Precedent-setting cases that could impact local rules or how all attorneys do their job will likely attract the committee’s attention.
Once the committee gets approval, it will then have to write the brief and that, as Steele noted, will be a considerable undertaking. Either the committee will collaborate on the writing or the chore will be handled by a single committee member or another attorney. All the work will be volunteer with no one getting paid to pen or review the final draft.
Sedia is not expecting any briefs from the bar association to sway a court to establish precedent. Yet, he does anticipate the briefs could show the bench how its ruling will ripple beyond the parties involved in the case.
“I don’t think it makes or breaks the case,” Sedia said of an amicus brief, “but I think it’s nice to have the extra pages and extra views.”
At Valparaiso University Law School, David Cleveland, associate dean for academic affairs, echoed that point. He said well-done briefs bring something to the court’s attention that is not highlighted in the briefs filed by the opposing sides.
Just repeating one of the parties’ arguments will make the court feel its time is being wasted. Worse, having typographical errors or submitting the brief in the wrong format will cause the court to question the quality of the argument being made.
Good briefs typically show a geographic, industry or field of practice consensus, Cleveland said. And the documents that really impress the courts are those written by normally non-allied groups who have few common interests.
As an example, he pointed to Morse v. Frederick, 551 U.S. 393 (2007), which was dubbed the “Bong Hits 4 Jesus” case. The brief filed by the American Civil Liberties Union and several Christian organizations was particularly notable because opposing groups were coming together to make the same argument in support of First Amendment rights.
Bates said that for the attorneys arguing the case, an amicus brief can offer an intangible benefit. One time when he was trying to convince the Indiana Supreme Court to hear his interlocutory appeal arguments in a death penalty case, he asked the Promise of Justice Initiative to submit an amicus brief.
The justices ultimately denied his appeal, but having the support from an outside group did give him an emotional boost. Especially in Indiana, where amicus briefs are not filed often, Bates said, these missives do resonate.
“I hope somebody will think of us if they have a situation they think will affect the local bar, judges and the practice of law throughout the state,” he said.•