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Friday, January 04, 2013

Ind. Courts - "Skadden attorneys may face sanctions for failing to cite Wigod in TPP case"

Recall this March 11, 2012 ILB entry, headed "7th Circuit gives Chicago homeowner OK to sue lender over HAMP denial." The focus was a March 7, 2012 7th Circuit opinion by Judge Hamilton, Lori Wigod v. Wells Fargo Bank. From the Chicago Tribune story: "The ruling is likely to send shivers through the banking industry, which up until now has largely been shielded from HAMP-related lawsuits."

This afternoon I received a copy of an email originating with the National Housing Law Project, forwarded by IU McKinney Law Professor Florence Wagman Roisman to faculty members, and enclosing a copy of Jan. 2, 2013 ruling by Judge Matthew F. Kennelly, ND Ill., Eastern Div., in the case of Thul v. OneWest Bank. Prof. Roisman's message: "This should be of interest to all with regard to professional responsibility." From the opinion:

This argument flies in the face of a recent and controlling Seventh Circuit decision that OneWest did not bother to address or even mention until after the Thuls cited it in their response to the motion to dismiss: Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012). The Seventh Circuit squarely rejected in Wigod the argument that OneWest makes here. Id. at 561-65. The same discussion in Wigod also dooms OneWest’s argument that there is no sufficiently unambiguous promise to give rise to a viable promissory estoppel claim. The Seventh Circuit also rejected in Wigod the defendant’s argument, likewise repeated by OneWest in its motion to dismiss, that a plaintiff may not pursue a promissory estoppel claim where a claim for breach of a written contract claim has also been alleged. Id. at 566 n.8.

The attorneys who submitted OneWest’s opening brief, John Beisner and Jessica Miller of the Washington, D.C. office of Skadden, Arps, Slate, Meagher & Flom, LLP, and Andrew Fuchs of the Chicago office of that firm, ought to have brought Wigod to the Court’s attention in their opening brief. Their failure to do so almost certainly ran afoul of their obligation of candor under ABA Model Rule of Professional Conduct 3.3(a)(2) and the corresponding District of Columbia (D.C. RPC 3.3(a)(3)) and Illinois rules (Ill. RPC 3.3(a)(2)), and it likely amounted to conduct sanctionable under Federal Rule of Civil Procedure 11(b)(2) and 28 U.S.C. § 1927. The Court will address this point further at the end of this decision. * * *

For the reasons stated above, the Court denies defendant’s motion to dismiss [docket no. 29]. The Court also directs each of the attorneys who submitted the motion to dismiss and supporting briefs, John Beisner, Jessica Miller, and Andrew Fuchs of the law firm of Skadden, Arps, Slate, Meagher & Flom, LLP, to show cause in writing, by no later than January 10, 2013, why they should not be sanctioned in one or more of the following ways: (a) payment of plaintiffs’ reasonable attorney’s fees and expenses caused by advancing arguments contrary to the Seventh Circuit’s Wigod decision without bringing that case to the Court’s attention; (b) revocation of the pro hac vice status of Mr. Beisner and Ms. Miller; (c) a written and/or oral reprimand; (d) any other sanction that may be appropriate. The ruling date of January 3, 2013 is vacated. The case is set for a status hearing in open court on January 17, 2013 at 9:30 a.m. Mr. Beisner, Ms. Miller, and Mr. Fuchs are all directed to appear in person.

Prof. Joel Schumm, who forwarded the information to the ILB, recalls that Indiana had what appears to be a somewhat similar case, albeit with a different outcome - see this June 22, 2010 ILB entry headed "Supreme Court agrees with hearing officer that attorney who cited vacated opinion did not engage in professional misconduct."

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions | Indiana Courts

Ind. Courts - More on: Judicial Qualifications Commission Files Misconduct Charges Against St. Joseph Probate Court Judge Peter J. Nemeth

Updating this ILB entry from Aug. 14, 2012, referencing disciplinary charges filed that day against then-St. Joseph Probate Court Judge Peter J. Nemeth, the South Bend Tribune, in a story today by Madeline Buckley, reports:

The Indiana Supreme Court accepted an agreement Dec. 14 between Nemeth and the Indiana Commission on Judicial Qualifications that Nemeth would be sanctioned with the private reprimand, according to court documents.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - More reactions from attorneys on the Court's 3-phase pilot project

Here is a response from another Central Indiana practitioner:

I hate the idea of a video transcript. First, I can read the transcript much more quickly then I can watch an entire trial. Secondly, when I review the transcript citations relied upon by opposing counsel, if I use a hard copy/digital copy, I can flip right to a page. I would guess appeals using a video record will have to cite to a timer position and that will take longer to locate. Third, if I want to cite to more then one or two lines of testimony, I will have to sit there and take dictation. With a digital version, all I have to do is copy and paste.

As acknowledged by another commenter, use of a video transcript means more time. I do not know that I will be able to afford to do appeals for the public defender at the very low rate I am currently being paid if I also have to play transcriptionist for video records - my head spins when thinking about working to organize a video record for a week long trial. Also, as a sole practitioner with low overhead, I am currently able to provide appellate services at a much lower cost then the big firms and there is certainly a need for my type of service. I will now have to raise the cost of doing an appeal and I do not know how many individuals will be able to afford that cost. I certainly am going to have to stop doing appellate pro bono work because of the additional time. Quite honestly, I cannot help but think that whoever came-up with this idea is not an appellate practitioner.

Now having said that, I also do trial work and as a trial attorney, it would be great to have a recording of that day's testimony to prepare for the following day, closing arguments, directed verdicts, etc.

As regards electronic filing, I say it is high time that our filing system move into the 21st century both at the trial court and appellate levels. And, just as importantly, that the cost of accessing electronically filed documents be reasonable. The cost to view online dockets, etc. in Marion County is ridiculous.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - More on "Price of justice for David Camm: $3.3 million and rising fast"

Re my post yesterday, a reader writes:

Very interesting indeed, but I think the State is still just seeking LWOP--not the death penalty.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - Some reactions from attorneys on the Court's 3-phase pilot project

The ILB yesterday asked for attorney comments on the Court's 3-phrase pilot project to speed-up and modernize the appellate process. Here are some responses.

From an appellate defense attorney:

Regarding the audio/visual recording being the official record as opposed to a paper transcript:

This would impact my practice in a number of positive ways. Many appellate attorneys, including myself, do not live or work in the counties in which they handle appeals. So getting the paper transcript is often difficult. It has been my experience that one of three things happens.

First, I am sent the original transcript through the mail (which is expensive), and then I file it with the Court of Appeals when I file my brief. I have recently been told that the Appellate Clerk's office disfavors attorneys filing the original transcript, so many trial court clerks are now refusing to send me the original transcript.

Second, the trial court clerk mails the original transcript to the Appellate Clerk, and then I travel to the Appellate Clerk's office to pick it up. This is very problematic because the entire process can take 10, 15, sometimes even 20 days. All that time reduces the amount of my 30-day window I have to draft the brief.

Third, the court reporter sends me an electronic copy of the transcript. I prefer this option best because I then have an electronic copy of the transcript that I can highlight, attach electronic sticky notes to, etc., and that I can reference later when drafting my reply brief. But the major downside is that I cannot view the exhibits.

A visual recording of the proceedings would really improve the efficiency of my practice because it would eliminate the time I lose in obtaining either the original transcript or a copy, and it would provide me with an electronic copy that I can reference later. Also, if the exhibits are viewable on the recording, I can see those easily without having to obtain the original transcript.

It would also make our appellate courts even more efficient in administering justice because it would not take 90 days for preparation of the paper transcript. Recently I asked a court reporter to send me an audio recording of a hearing in one of my cases. I received the audio file by email in less than a day.

As for the third phase of the pilot project, which involves having the parties submit documents electronically, this also would greatly improve the efficiency of my practice. It is expensive to copy and bind the required number of briefs (usually 13-14) in each case.

Also, for the reasons set forth above, a paper transcript is cumbersome. After I have prepared my initial brief, I never know whether I will need to review the transcript again to prepare my reply brief. So with a paper transcript, I must either create my own electronic copy (by scanning each page), make my own paper copy, or request an electronic copy from the court reporter (which I don't always get).

One final thing, Marcia. When the Court is considering all of this, I think it is important for them to also consider the electronic form they wish for these documents to be sent in. I have court reporters all the time send me transcripts generated by WordPerfect. If I open them in Word, the page numbers are almost always wrong, which makes the transcript unusable to me. So I have had to purchase a copy of WordPerfect. It would seem this could be easily remedied by requiring court reporters and the parties to submit the documents in PDF format, which can be opened on any computer or mobile device.

ILB: I certainly second the Word vs. WordPerfect point. Re the PDFs, I think it is also important that the documents submitted not be scanned documents which can't be digitally manipulated. Even the Supreme Court still does this, as with its two orders on use of exhibits in oral arguments filed this week.

Another Indiana attorney writes:

I don't have a personal story, but can share one told by [deleted] when he spoke to the Fulton County Bar Association last August. He had a trial in New Jersey as I recall, a several week murder trial, and daily they got the video DVD of the days proceedings about 20 minutes after court adjourned. That was the record for appeals, and for counsel. He claimed he loved it.
This from an Indianapolis attorney who does many criminal appeals:
I’m both excited and concerned about the pilot projects. The current deadline of ninety days to prepare a transcript is ridiculously long, especially when many transcripts are quite short. In so-called expedited appeals under Appellate Rule 21(A), a ruling from the Court of Appeals within six months of the filing of the notice of appeal is nearly impossible if three months is spent preparing a transcript. Anything that shortens that ninety-day period (with the availability of extensions for lengthy trials, of course) is a big step in the right direction.

The availability of video transcripts from courtrooms across the state would overall be a positive development. Trial lawyers would be able to incorporate testimony excerpts into closing argument or perhaps even cross-examination. Appellate lawyer would be able to secure the record within minutes, which would ideal especially when seeking an emergency stay or appealing something especially time-sensitive, like a contempt finding or denial of bail. Finally, I imagine the Judicial Qualifications Commission would appreciate the opportunity to review the demeanor of judges on the bench in evaluating complaints.

My concern, though, is the significant increase of time it takes to review a video transcript versus a paper transcript. I was recently assigned one of the Marion County Criminal 6 video transcripts. I could read a transcript of a two and a half-day trial in a few hours. Watching the video will take two and a half days, and citing to the record is more difficult. If I want to quote something, I need to watch it several times to come up with the precise verbatim quotation, which I could have far more easily copied and pasted from a conventional transcript.

Time usually means money. A video transcript may save the cost of preparing a transcript, but it considerably increases the amount of lawyer time involved. If an appellate public defender making only $60/hour spends an extra fifteen hours dealing with the transcript, the county will pay $900 in additional lawyer time, which may well be less than the cost of a traditional transcript. But the costs continue throughout the appeal. (Some counties pay a flat rate per case to appellate lawyers, which would probably need to be adjusted upward.) The Attorney General’s Office would not be able to process the same high volume of appeals with the same number of lawyers if required to watch a video transcript of every case. I suspect the Court of Appeals might also find it difficult to keep pace without additional staff if every transcript was a video. For a company or individual pursuing a civil appeal, the cost will be considerably higher because lawyer time is billed at a much higher rate.

Some sort of change in this realm is inevitable and even desirable, and the three pilot projects should provide plenty of feedback as those changes are discussed in the future.

ILB: Although this is a pilot project, I have some concerns about public access to the record (and court imposed limitations on use) now, and in the future.

Additional comments welcome, now or as the projects progress.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Law - "Now THAT Is A Signing Statement!"

The ILB has had a number of entries on the use of signing statements by various Presidents (and Governors).

Jan. 2 President Obama issued a signing statement worthy of note, re "H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013,” according to this NY Times story yesterday by Charlie Savage, who has written much on the topic over the past few years.

Also yesterday, this post at The Volokh Conspiracy by John Elwood, headed "Now THAT Is A Signing Statement!"

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to General Law Related

Law - More on "Highlights From Pa. Gov. Corbett’s Suit Against the NCAA"

Updating this ILB entry from yesterday, National Journal has an analysis today by Naureen Khan, headed "Why is Pennsylvania's Governor Suing the NCAA?"

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)

For publication opinions today (1):

In State of Indiana v. Daniel E. Riley, a 7-page opinion, Chief Judge Robb writes:

The State appeals the trial court’s dismissal of Class B misdemeanor battery charges against Daniel Riley. The State raises one issue on appeal, which we restate as whether the trial court abused its discretion in granting Riley’s motion to dismiss. Concluding that the trial court did abuse its discretion, we reverse. * * *

While there may be several possible grounds for dismissal of an information, we can find no support for the proposition that Smoot [Audrey Smoot, an Indiana Gaming Agent] acting as affiant would be one of them. Nor has any other basis been alleged. While it may be more common to have a law enforcement officer or prosecutor affirm the information, it is not required by the plain language of the statute, nor by any case law that we can find or that the parties cite. * * *

Because the information was proper even with Smoot as an affiant, and because there appears to have been no other basis for the dismissal (other than possibly a mistaken belief that an unauthorized investigation would affect the information), the trial court abused its discretion in granting the dismissal.

NFP civil opinions today (1):

Rori Property Holdings, LLC, et al. v. McCullough Construction Company, Inc. (NFP)

NFP criminal opinions today (2):

Sherry K. Kohues v. State of Indiana (NFP)

Ricky J. Gellinger v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - Marion Superior Court Judicial Vacancy

Updating this ILB entry from Dec. 3rd, we are still waiting to learn of Governor's selection to fill Judge Moberly's vacancy on the Marion County Superior Court. The Vanderburgh Superior Court Judicial vacancy, created by Judge Kiely's election to the Circuit Court, also remains.

With all the news of Daniel's move to Purdue, some may be unaware that he is still Governor and has quite a bit more time to act. The Indiana Constitution:

Art. 4 Section 9. The official term of the Governor and Lieutenant
Governor shall commence on the second Monday of January, in the
year one thousand eight hundred and fifty-three; and on the same day
every fourth year thereafter.
That would be January 14th in 2013.

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts

Ind. Courts - Briefs in the Berry v. Crawford legislative fines case

IMHO, yesterday's oral argument in Berry v. Crawford is not to be missed. Watch it here. And the ILB is pleased to report that last evening I obtained the briefs in the case - here they are:

[More] See also Charles Wilson's AP story on yesterday's events. A quote:
The justices prodded both attorneys with questions throughout the hearing, asking repeatedly whether they believed there were any limits on the Legislature’s power over its members and how they thought the fines ought to be collected. The power to levy the fines wasn’t in dispute, but the degree to which the Legislature could go to collect them was.

Justice Loretta Rush asked Fisher if the House had the power to seize members’ cars or homes if they don’t follow the rules. “Is there any limit to the collective power?” she asked.

“No, I don’t think there is,” Fisher answered. He cited a case where another state’s Legislature seized a member’s house over an unpaid fine.

GiaQuinta said House leaders hadn’t followed due process in collecting the fines. He suggested that officials should have filed a lawsuit and asked a judge to garnish the legislators’ wages.

“How is that materially different from what happened here?” Justice Robert Rucker said. “The end is the same.”

Posted by Marcia Oddi on Friday, January 04, 2013
Posted to Indiana Courts