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Every day, appellate decisions are waiting online, right at our fingertips. Want to be on top of your game? Read them — every day. It can be entertaining, even fun, and it takes just a few minutes. Make it part of your routine.
You’ll thank me.
Why?
Soon enough you will find a plum you can use. I have, regularly. Even unpublished decisions are guides. You also get a feel for what the appellate courts are trying to emphasize. The published opinions lead the way.
All of this gives you a remarkable advantage if you take the time to read these decisions, enhancing both responsiveness and effectiveness. Ignore at your own peril.
Example: More than 20 years ago, in a post‑divorce dispute, I read a case published online the same day I was hired. It was right on point. I immediately sent a copy to opposing counsel with a cover letter. We settled the case to my client’s advantage in a week. Months later, reading them every day as I do, I saw the Indiana Supreme Court had reversed. That didn’t change our outcome; the parties had agreed to move on.
Even unpublished decisions are guides
In Indiana, the issue of using unpublished appellate opinions — often called Not‑for‑Publication (NFP) or memorandum decisions — for argument rather than citation has evolved under Indiana Appellate Rule 65(D) and corresponding interpretations. Before 2023, we were strictly prohibited from citing unpublished opinions for any reason other than establishing res judicata, collateral estoppel or law of the case. Now, a memorandum decision issued on or after Jan. 1, 2023, may be cited to any court for its persuasive value only. In practical terms, that means the reasoning in NFP decisions can now be brought to the court’s attention when published authority is thin, even if the decision does not bind the court.
How clarity won an appeal
If we can agree that daily reading informs what courts value, then it follows that writing well tells them why your case deserves it.
I was privileged to work with a man—a law student at 65—who had been a preacher for 40 years before law school. His writing was impeccable. The last appellate work I did, more than 15 years ago, was an ineffective‑assistance case in a criminal matter. Conventional wisdom says not to file this in your initial appeal. We did, because it was clearly a winner.
This man knew how to talk to people — he had, his entire life — and understood persuasion, our basic art. Normally, briefs will recite the facts and then argue the law, weaving the two together. That is fine, and of course it’s the usual path.
Editing my first draft, he turned it on its ear. Rather than follow standard format, the final draft contained paragraphs that began this way:
“The judge knew …”
“The prosecutor knew …”
“The judge heard …”
“The prosecutor saw …”
It was incredibly effective. The judgment was reversed in short order. The best part was that the client was never retried.
Closing thought
I once told a recent law grad, who reminds me every time I see him, to make the practice of law “his hobby.”
In that vein, don’t be afraid to speak your mind and try untested techniques. Boredom is the bane of those who read your briefs. Put something new in them. Let your prose pull the coattails of the reader. Say what you want, which is usually simple. Start out that way.
Sure, the legal issues are important, but one of the best first lines with any judge — or in closing with a jury — is “Here’s what I want today,” quoting the famous trial lawyer Gerry Spence.
Judges often look up when they hear this, because you are communicating directly.
Clarity wins.•
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Graham is a criminal and family lawyer in Bloomington. Opinions expressed are those of the author.
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