Appellate rule change will enable litigants to cite ‘persuasive’ memorandum opinions

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The Indiana Supreme Court is amending the appellate rules to allow litigants to cite to memorandum decisions for “persuasive value,” a change the Appellate Practice Section of the Indianapolis Bar Association has been advocating for since 2013.

In a Dec. 19 order, Cause No. 22S-MS-1, the Supreme Court amended Rule 65(D) of the Indiana Rules of Appellate Procedure, which covers opinions and memorandum decisions. The change applies to memorandum opinions issued Jan. 1, 2023, and later.

Under the current rule, memorandum decisions cannot be regarded as precedent and cannot be cited except to establish res judicata, collateral estoppel or the law of the case.

The amended rule says memorandum decisions “may be cited for persuasive value to any court by any litigant.” However, litigants have no duty to cite such a decision except to establish res judicata, collateral estoppel or the law of the case.

The language of the amendment is very similar to a change proposed by IndyBar’s Appellate Practice Section. In an amicus brief detailing the reasons for revising Rule 65, the section argued the revision would clear confusion and bring consistency to litigation.

Joel Schumm

“There’re some issues where the only cases on the issue, the best, most pertinent cases, are these memorandum decisions.” Joel Schumm, member of IndyBar’s appellate section, said. “To not let parties cite those seemed unusual with the modern reality that they’re so available to everybody.”

Since 2006, Indiana’s memorandum opinions have been publicly available both on the appellate court’s website and through online legal research databases, according to the amicus brief.

The Office of Judicial Administration reiterated the accessibility of the opinions when the rule amendment was proposed.

“The current rule reflects the traditional prohibition against citing unpublished decisions as precedent with certain narrow exceptions,” the OJA stated. “The traditional published/unpublished distinction is blurred by non-citable, non-precedential decisions readily available online through legal reporter services and courts’ own websites.”

Even so, when lawyers find a memorandum decision that provides helpful guidance to their arguments, they cannot cite to the unpublished opinion from the Indiana judiciary. That happened in the 2021 Court of Appeals of Indiana ruling in A.C. v. Indiana Dep’t of Child Servs., which inspired the appellate section’s amicus brief.

The Court of Appeals has admonished attorneys that it will strike any citations to memorandum decisions in a brief, the amicus brief asserted. Yet in its own opinions, the appellate court has continued to cite memorandum decisions.

Schumm is also a clinical professor at Indiana University Robert H. McKinney School of Law, where he supervises law students’ work on appeals as part of the Appellate Clinic, which he created at the law school. In addition, he has an active appellate practice representing indigent clients.

He pointed out that memorandum decisions are comprehensive like published opinions, citing precedent and explaining judicial reasoning. Not being able to highlight those decisions in court filings is like trying to advocate with “one arm tied behind your back,” he said, especially when the Court of Appeals issues several rulings that reach different conclusions on a particular area of the law.

“You’ve not been able to go to court with everything that should be available to you,” Schumm said. “So I think this allows you to be a better advocate and it gives the (Indiana) Supreme Court better information.”

As to what “persuasive value” means, Schumm described it as a term of art. The difference between precedent and persuasive, he said, is the court has to follow a precedential ruling but can decide if it wants to follow an opinion cited for being persuasive.

The rule change is causing some concern that the memorandum decisions issued after Jan. 1 will become shorter and less involved. Schumm acknowledged the worry. Appellate courts in some other states write very short not-for-publication opinions, but Schumm said he sees that as potentially troublesome for the parties in those cases.

“The Indiana Constitution guarantees an absolute right to one appeal and for decades that’s been a written decision that really goes through the issues,” Schumm said. “That’s really important to the litigants in a case to make them feel that they were treated fairly and that their issues were addressed.”

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