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Monday, November 26, 2012

Ind. Courts - Use of Notices of Additional Authority

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Notices of Additional Authority: Is there really no deadline?

According to Appellate Rule 48: “When pertinent and significant authorities come to the attention of a party after the party’s brief or Petition has been filed, or after oral argument but before decision, a party may promptly file with the Clerk a notice of those authorities setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, with a parenthetical or a single sentence explaining the authority.”

The rule does not specify a deadline.

Last Wednesday’s Court of Appeals’ oral argument in Brewington v. State began with an not-all-that-uncommon scenario. One of the attorneys (a deputy attorney general) had filed a notice of additional authority one week earlier (November 14) and served opposing counsel by mail, which apparently didn’t arrive until two days before the oral argument. The oral argument began with this exchange:

APPELLANT’S COUNSEL: As a preliminary matter, we have filed a motion objecting to the additional citations filed by the State. We didn’t receive them until Monday. We believe they do not conform to the appellate rules of procedure. We have not had a chance to review them, let alone analyze them. It is my understanding that counsel for the State will rely upon those. So, we are at a disadvantage and we think this is an unfair attempt to circumvent the rules. We would like to have some direction from the Court on that point.

JUDGE BAKER: In that regard, sir, we will have an opportunity to discuss your objection and their submission at a later moment, at which time we will make a declaration. It is the case that we have to be mindful of whatever the status of the law, whomever gives it to us, whether it be you or the Attorney General or one of my colleagues. So--

APPELLANT’S COUNSEL: That’s true, your Honor. But we actually asked for an extended brief and we were denied because there were so many issues raised. And here, he is asking for eleven cases to be cited. They are not new cases. Some of them go back to the 90s. So--

JUDGE BAKER: We are prepared to hear your argument.

JUDGE RILEY: And we haven’t read them probably yet either, because of the late filing.

When is Additional Authority Appropriate?: Bolstering a Claim, not Raising a New Claim

A Notice of Additional Authority simply supplements an argument with an additional case or other authority that supports an argument already briefed. In Chupp v. State, 830 N.E.2d 119, 126 (Ind. Ct. App. 2005), the court of appeals made clear that Rule 48 cannot be used to
allow a party who failed to present an issue in his appellant’s brief to bypass the general rule that un-raised issues may not be presented for the first time in a reply brief by filing a citation to additional authority. Instead, as we read the Rule, where a party has properly presented an issue, he may supplement his brief by providing citations to additional authority to support the argument previously raised.
It’s unclear what was included in the notice in Brewington. The late addition of fourteen new cases, especially some decided well over a decade earlier, makes one wonder why the cases were not included in the party’s brief.

Timing

Rule 48 places no limitation on the timing of additional authority. Common sense, professional courtesy, and effective advocacy do. Ideally, counsel will file additional authority shortly after the new authority is issued by a court or discovered by counsel. Diligent appellate counsel will check the websites of the Indiana Supreme Court and Court of Appeals daily for new published opinions that may be relevant to pending cases.

If a case is set for oral argument, as in Brewington, counsel may discover one or more additional cases while preparing for oral argument. Oral arguments are usually scheduled a month or so in advance, so counsel should be able to file a notice well in advance of the argument. (The order setting the Brewington argument was issued three full months before the argument, on August 21.) As highlighted above, if the notice is not filed until a few days before the argument, opposing counsel and the judges may not have an opportunity to review the cases before the argument.

A notice filed the day before an oral argument or, worse yet, the morning of oral argument may not reach the judges before the argument, and the judges and opposing counsel may be understandably frustrated with the late filing. For example, in a 2009 “Appeals on Wheels” argument, an attorney served opposing counsel with a notice immediately before the argument. The notice had been Rotunda filed the previous evening. A member of that panel chastised the late filing because Indiana courts do not practice law by ambush. Because the Brewington notice was filed a week in advance, it did not provoke the same reaction.

Although the appellate rules generally provide for service by first-class mail or personal delivery, counsel filing a time-sensitive motion is certainly free to send a courtesy copy via email as well.

Content of the Notice

A Notice of Additional Authority cannot drone on and on about the importance of a case or other cited authority. Rather, after citing the authority, Rule 48 specifically limits the notice to “a parenthetical or single sentence explaining the authority.” There are certainly creative ways to use punctuation and other devices to craft a lengthy sentence, but it should still be one sentence.

The notice must also include “a reference either to the page of the brief or to a point argued orally to which the citations pertain.” A brief might be twenty pages or longer. It is important to let the court know precisely where and how the additional authority fits.

Posted by Marcia Oddi on November 26, 2012 04:26 PM
Posted to A teaching moment | Indiana Courts