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Thursday, December 13, 2012
Ind. Courts - Responses to: A New Unwritten Policy on Late Brief Filings at the Indiana Court of Appeals?
The ILB has received several responses to Prof. Schumm's post from earlier today.
A Marion County judge writes:
Re: late filing on briefs:Westfield Attorney Jill Acklin writes:
There are many cites in our Indiana case histories that demonstrate our state prefers to address matters on the merits rather than on technicalities. Nearly all of our trial rules have annotations wherein our courts have said, essentially, merit matters over minutes. I concur in that. The only trial rule where that is not the case is T.R. 56 which sets a hard and firm deadline on the filing of a response to a motion for summary judgment. That hard rule, and the accompanying caselaw, in my opinion, can, and has, lead to unjust results. The trial rules, deadlines, etc are there for the purpose of “just, speedy, and inexpensive determination of every action”.
Moreover, they are “intended to discourage battles over the form of pleadings, …and prevent parties from losing a claim or defense because of a technical defect … A court is not bound to blindly follow these rules.” - Civil Trial Rule Handbook, 2010 Edition, Rule 1.
I think that unwritten allowance you cite follows the Indiana tradition of judging each case on its own facts and the merits. Everyone always wants everyone to play by the rules, but no one is perfect and mistakes do happen. The merits and justice of a litigant’s case, however, should not be ignored due only to a blown deadline. The lawyer who consistently flirts with this allowance; however, does so at his own peril. And the Courts are empowered and entrusted to draw that line on a case by case basis with the opportunity for review if necessary. The rule serves a purpose, but justice probably deserves a little more leeway.
I had a case (01 A 02 - 1106 - CR – 00554) where the Supreme Court accepted the Appellee's "Petition to Transfer" that was filed one day late. The reason given for the late filing was that the Appellee overlooked the "leap day" this year and filed the Petition on March 1, not February 29. There was a Motion made by the Appellee to ask the Indiana Supreme Court to accept the late Petition which was granted over objection by me. So, it seems that in some situations, the Supreme Court will allow extensions as well, despite Appellate Rule 57's instruction that there are no extensions.Karen Neiswinger, an Indianapolis attorney, writes:
Even for those situations in which no extension of time may be granted per the Trial or Appellate Rules, the proper relief is to file a motion for leave to file a belated brief. This motion sounds in equity, and therefore, the usual grounds for equitable relief must be shown. This is very appropriate for the reasons stated by the Marion County Judge whose remarks you published. Also, there is no deadline for the Court of Appeals or Supreme Court to issue an opinion, so a few additional days makes no difference, other than to the party who loses because of a miscalculation of a due date, computer or copier malfunction, or just because the lawyer got so far behind that the deadline couldn't be met. Cases should be decided on their merits, and the law should be flexible, not rigid, if substantial justice is the goal.The ILB may append additional responses to Prof. Schumm's observations.
Posted by Marcia Oddi on December 13, 2012 11:28 AM
Posted to Indiana Courts