Tuesday, May 13, 2014
Ind. Courts - Ending the Taboo on Citing Memorandum Decisions: the deadline for comments is today - Tuesday, May 13th.
Updating this post from May 9th, today is the deadline for comments on whether Appellate Rule 65(D) should be amended to allow citation of memorandum (non-for-publication) decisions as persuasive precedent. From the post:
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.The ILB has written much on this topic over the years. In looking back over the posts, I have selected and recommend to readers this long post from Oct. 27, 2008, as being particularly useful on this issue. Here are two samples:
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
Indiana Supreme Court
Division of State Court Administration
30 South Meridian Street
Indianapolis, IN 46204
- I was struck by this statement by Scott E. Gant: "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it." From the abstract to Gant's article in the Boston College Law Review: This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.
- At the end of the post I list examples of some Indiana Court of Appeals opinions which have cited or relied on NFP opinions, despite Rule 65(D).
Posted by Marcia Oddi on May 13, 2014 09:47 AM
Posted to Indiana Courts