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Friday, May 09, 2014

Ind. Courts - Some Highlights of Yesterday’s “Insider’s Guide to Indiana Appellate Practice” & Today’s CLE with Justice Rush: E-Filing is Coming and Much More

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

This morning I attend an Indiana Public Defender Council CLE that included Justice Rush as a speaker, and yesterday I attended the “Insider’s Guide” CLE sponsored by the ISBA Appellate Practice Section, which included an impressive line-up of clerks, staff attorneys, and administrators from the appellate clerk’s office, Court of Appeals, and Supreme Court. Maggie Smith was a terrific host of the fast-paced event that covered a lot of ground with previously submitted questions and several audience questions.

Note: The summary below does not include verbatim replications of answers and at times may include my own additional thoughts or, at the very end, editorial comments.

E-filing of briefs

Both CLEs included some discussion of a new appellate case management system connected to Odyssey, which is expected later this year. The electronic filing of briefs should soon follow. The clerk’s office will have the technical capability in 2015, when a pilot project is likely for the e-filing of briefs in cases from certain trial courts or a specific subcategory of cases. E-filing for all appellate cases (with likely exceptions for pro se cases, etc.) can be expected in 2016 or 2017, at the latest. The system will function in many ways like PACER, so uploading a brief will simultaneously serve all counsel of record.

Justice Rush’s comments

In addition to e-filing on the horizon, Justice Rush said to expect rule changes shortening the timeline for preparing transcripts. The deadline is presently 90 days, which contributes significantly to the time it takes for an appeal.

In response to a question about things not to do at oral argument, Justice Rush’s list included avoiding/dodging the questions, beginning the argument by reciting the facts (the justices have read the briefs), chewing gum, and scrolling through an iPad at the podium.

Justice Rush has read the entire trial record in every case in which she authored the court’s opinion.

Justice Rush likes textual headings in briefs and uses them in her opinions (unlike the justice she replaced, who followed the somewhat cryptic U.S. Supreme Court approach of Roman numerals and letters with no text). She cautioned against excessive footnote use and does not include many in her opinions.

Insider’s Guide

Filing. For those filing documents in person at the Statehouse, the Clerk’s office peak hours are early in the morning, over the lunch hour, end of the day. To avoid a line, try 10:00 to 11:30 and 2:00 to 3:30. And, as I was told when filing something today, Friday morning is less busy than Friday afternoon.

If documents are not taken to the Clerk’s office before 4:30, they may be deposited in the Rotunda box at the second floor east (Market St.) entrance to the Statehouse.

Appellate motions or briefs may be also be filed by depositing them in the U.S. Mail, “postage prepaid, properly addressed to the Clerk.” App. R. 23(A)(2). The appellate rules differ from the Trial Rules, which require “in order for a filing by mail to be deemed to have occurred on the date of mailing, that the mailing is ‘by registered, certified or express mail.” Marlett v. State, 878 N.E.2d 860, 864 (Ind. Ct. App. 2007) (quoting Ind. Trial Rule 5(F)(3)). The Clerk will generally filemark a document as filed on the date of the postmark. Therefore, if counsel deposits a document in the mail too late in the day to receive a postmark for the day that it is due, additional action is required. Counsel should tender a separate attorney’s affidavit, stating the time and location where the brief was placed in the U.S. Mail and served on opposing counsel. Kevin S. Smith, Filing by Mail – Do You Really Need to Drive to the State House?, The Appellate Advocate 5-6 (Winter 2006) (citing Carrasco v. Grubb, No. 53A01-0410-CV-453 (Ind. Aug. 12, 2005) (order)).

Defects. When documents are not filed in person and do not conform with the rules, the Clerk’s office will issue a notice of defect for a variety of problems (lack of page numbers, wrong color cover, faulty certificate of service, etc.). The document will be marked received instead of filed. The sole exception is the Notice of Appeal, which will always be filed-marked, even if it is late, fails to include necessary information, or is otherwise defective. The Court of Appeals’ staff attorneys will review Notices of Appeals, and the court may dismiss an appeal when one is defective. Opposing counsel will often file a motion to dismiss raising the issue. What remains unanswered is whether dismissal will occur for relatively minor problems with a timely Notice of Appeals, such as the failure to include one or more of the items required by Appellate Rule 9.

Extensions of time. Lawyers who request additional time to file their briefs can generally expect an initial extension of 30 days. A second request for thirty days could be shortened, although each case is different. Any third extension will require extraordinary circumstances. These are general rules, which do not apply to some categories of cases where extensions are either prohibited or require a stronger showing. Because the deadline for a reply brief is only fifteen days, lawyers should not expect a thirty day extension.

Discretionary interlocutory appeals are discussed each week by a rotating motions panel at the Court of Appeals. One of the staff attorneys who prepares memos for those cases discussed his approach to the cases. A recommendation to deny is likely when (1) one or more deadlines has been missed; (2) he cannot figure out what is going on with the case (the Court of Appeals will have only a motion—not a transcript or appendix—so it’s especially important that counsel explain the issue(s) clearly; and (3) the issue is especially fact sensitive. The limited record from some issues pursued on interlocutory appeal may present challenges to the reviewing court, which are easily avoided by denying the motion and waiting for an appeal after a trial or other final judgment.

The Supreme Court Administration office includes an administrator, deputy administrator, and four staff attorneys. One of those staff attorneys, Geoff Davis, explained that each spends about half of their time working on memos to the justices in civil appeals. Each has a specific focus beyond that, with Mr. Davis serving as the point person for original actions filed with the court. Other lawyers focus on death penalty cases, requests for records, and attorney discipline cases. The staff attorneys will attend pertinent parts of the Court’s weekly conference when cases are discussed; law clerks do not attend conference.

The Administrator’s office will issue a memo in every case assigned to a justice to author the opinion. That memo will include a short summary of the justices’ views from conference, which will be helpful to the clerk involving in drafting an opinion.

Why Have Rules if Lawyers Don’t Follow Them?

I think it’s a lawyer’s obligation to know and follow the appellate rules. Cases should not be dismissed unless the violation is extreme, and I have mixed views on footnotes slamming counsel, which are sometimes appropriate for recurring problems or persistent offenders. Two instances of seemingly routine rule flouting were discussed at Thursday’s CLE. Although I’m not a fan of either rule, I follow both and think others should — or, better yet, help to amend them.

Citing unpublished/memorandum Indiana opinions. Appellate Rule 65(D) is very clear: except in narrow circumstances (to establish res judicata, collateral estoppel, or law of the case), memorandum decisions “shall not be regarded as precedent and shall not be cited to any court . . . .” (emphasis added). A number of speakers suggested the citation of memorandum decisions happens with some regularity. No one condemned the practice, and one clerk mentioned it won’t get lawyers into trouble but should be done in a footnote. The clerk will read the unpublished opinion that lawyers cite — despite the lawyer’s complete disregard of the rule.

Appellate litigation should be a level field where everyone plays by the same rules. This rule seems outdated to me — but it’s still a rule. Lawyers should email their comments on the proposed changes by next Tuesday instead of ignoring the rule.

Failing to include all the trial court documents in an Appendix in a criminal appeal. Appellate Rule 50(B) unambiguously requires the inclusion of the entire Clerk’s record, i.e., every document filed in the trial court. This differs significantly from Rule 50(A), which requires inclusion of only relevant documents in civil appeals. Yet one law clerk mentioned that appendices in criminal cases routinely omit many documents.

The vast majority of my appeals come from the Marion County Public Defender Agency, which has a wonderful staff that prepares the appendix in conformance with Rule 50(B). In the few appeals where I have had to prepare the appendix, I have asked for relief from Rule 50(B) if the appendix would include hundreds of pages of irrelevant documents, such as an appeal of the revocation of probation in a case that went to jury trial (and had lots of document filings) years earlier. One of those motions, which was granted, is available here.

Will the Court of Appeals scold a lawyer in a footnote for violating the rule by omitting irrelevant documents? That would be hard to imagine when the lawyer has made their job easier--unless, of course, the lawyer’s view of what is relevant means the exclusion of an important/harmful document.

Attempts to change Rule 50(B) have failed, at least in part, because all the trial court documents may be important if federal habeas relief is eventually sought in a case. Fair enough, but habeas relief is pursued only in the death penalty cases (which are a rare event in recent years) and a small number of other criminal cases. Requiring hundreds of lawyers to include reams of irrelevant documents each year so they are available for later proceedings in maybe 1-2% of those cases seems like an enormous waste of a lot of people’s time, energy, paper, and money. Perhaps it’s time for the Court to reconsider the earlier decision not to amend the rule.

Or lawyers can just continue to ignore it — seemingly with impunity.

Posted by Marcia Oddi on May 9, 2014 03:34 PM
Posted to Indiana Courts | Schumm - Commentary