Monday, October 21, 2013
Ind. Courts - Friday was Fax Day at the Indiana Supreme Court: Expect Several New Cases on the Court’s Argument Calendar Soon
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
This October 11 post summarized transfer grants from the past quarter, mentioned that many had not yet been scheduled for oral argument, and concluded that “[i]t seems likely the Court will soon issue several orders in many of the remaining fifteen cases, scheduling arguments for December or early 2014.” Friday appears to have been fax day.
Here’s one of the faxes issued late Friday morning, setting argument in an Appellate Clinic case for 9:45 on Thursday, January 9, 2014. Other faxes were likely issued for dates in December and January in cases in which transfer was recently granted and some cases in which the Court is considering whether to grant transfer. These cases should appear on the Court’s calendar by the end of the week. I’ll have some analysis then, just as I did in this June 13 post after 20 cases were added to the calendar.
Finally, I have a few thoughts about the scheduling faxes. Unlike the Court of Appeals, which simply issues an order scheduling oral argument, the Supreme Court sending a fax is a nice way to allow counsel with a conflict an opportunity to reschedule. Some of the language in the fax, though, is a bit surprising. First, the fax begins, “Finding dates when all five Justices can be present is difficult . . . .” This seems to suggest the justices are usually not around and available, which is not the case. The Court’s calendar has long shown two or three arguments on nearly every Thursday except in the summer.
The reason counsel should not ask for a different argument date is not because the justices will not be around on any date other than the one selected. Rather, an Indiana Supreme Court oral argument is a big deal that should take precedence over just about anything else. I think most lawyers know that, whether it is stated in the fax or not.
More surprising, though, is this language: “The Court’s typical practice is to expect someone else from your firm or other co-counsel to argue if you have a conflict with the scheduled date.” If one lawyer at a firm has spent scores or hundreds of hours on an appeal or has a specialized practice in an area but is going to be on a long-planned vacation, the quoted language suggests the lawyer should send a junior associate or someone who does not regularly practice in that area (and may know nothing about the case) to argue. It hardly seems fair to bill a client for a bunch of extra hours while a new lawyer gets up to speed. Moreover, the Indiana Supreme Court should have the benefit of the best arguments from the most prepared and experienced counsel in a case, even if it means occasionally moving an argument back a week or two.
Posted by Marcia Oddi on October 21, 2013 09:09 AM
Posted to Schumm - Commentary