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Friday, May 09, 2014

Ind. Courts - Ending the Taboo on Citing Memorandum Decisions

This ILB is repeating this post from April 21 (plus appending a comment of my own); the deadline for comments is Tuesday, May 13th.

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

You have likely heard of or even played a board game called Taboo. Working in teams, players “take turns describing a word or phrase on a drawn card to their partner without using five common additional words or phrases also on the card.” Points are scored when the word is guessed, but players “lose for saying one of the off limits words or phrases.”

The current version of Appellate Rule 65(D) shares some parallels with the popular board game. Lawyers can cite to any Indiana Supreme Court opinion and to about 25% of Indiana Court of Appeals’ decisional law — but the remaining 75% of that court's jurisprudence, found in not-for-publication (NFP) memorandum decisions, is taboo. Except under very narrow circumstances*, those NFP decisions “shall not be cited to any court . . . .”

Those opinions, though, are easily accessible on Lexis, Westlaw, and CaseMaker — and often provide helpful analysis when considering an issue. As previously discussed on this blog, the legal significance of some of those opinions are difficult to distinguish from published opinions.

Each year when researching and writing on an issue of Indiana law, some of my first-year legal writing students express puzzlement and disbelief about the limitation, which I explain as a relic of an era when memorandum decisions were not posted on the internet or available on Westlaw or Lexis.

That era ended several years ago, and the rule should be amended to reflect the modern reality. With your help, it can. As explained on the Indianapolis Bar Association’s website:

The Rules Committee of the Indiana Supreme Court has proposed changing this rule to allow citation of memorandum (non-for-publication) decisions as persuasive precedent. The proposed rule makes clear: “A party or attorney has no duty to cite a memorandum decision.” The new rule would not create additional work for lawyers. In many cases, lawyers will find and continue to rely on ample binding (published) authority. In cases without helpful controlling precedent, under the new rule, lawyers need not resort to other jurisdictions to find support, but instead may rely on relevant memorandum (not-for-publication) decisions within Indiana as persuasive precedent.

A Task Force of the Indianapolis Bar Association Appellate Practice Section crafted this proposal, which the executive committees of the Appellate Practice, Criminal Justice, and Litigation sections each respectively supported. The proposal was ultimately approved for submission to the Rules Committee by the IndyBar Board of Directors at its December 2013 meeting.

You are encouraged to share your comments on the proposed rule. Feedback is essential to the Rules Committee and ultimately the Indiana Supreme Court justices in deciding whether to adopt a proposed rule or to make changes to the proposal. Without it, this rule will not be approved.

Comments can be short or lengthy. Consider beginning with an introduction of yourself (including years in practice and practice areas(s)) before explaining your experience with the current rule and your reasons for supporting the change. You may wish to identify any specific instances where you have encountered and been unable to cite helpful memorandum decisions. Alternatively, a concise statement of your support for the rule will be valued.

Comments must be sent no later than May 13, 2014 and be addressed to:


Lilia G. Judson
Executive Director
Indiana Supreme Court
Division of State Court Administration
30 South Meridian Street
Suite 500
Indianapolis, IN 46204

*The exceptions are “to establish res judicata, collateral estopped, or law of the case.


Separate and apart from Prof. Schumm's remarks above, one additional thing I would suggest relates to the reasons for publication set out in Appellate Rule 65. Opinions And Memorandum Decisions:

A. Criteria for Publication. * * * A Court of Appeals opinion shall be published if the case:

(1) establishes, modifies, or clarifies a rule of law;

(2) criticizes existing law; or

(3) involves a legal or factual issue of unique interest or substantial public importance.

Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

Currently no explanation is provided by the panel as to why an opinion has been categorized as For Publication, or not. Citing the specific reason an opinion has been categorized For Publication at the top of the opinion, such as "For publication, per Appellate Rule 65(A)(3)" could, I believe, prove very useful to everyone.

Posted by Marcia Oddi on May 9, 2014 09:45 AM
Posted to Schumm - Commentary