Thursday, August 14, 2014
Ind. Courts - IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
IBA Appellate Roundtable with Justice Rucker and Chief Judge Vaidik
Justice Rucker and Chief Judge Vaidik were the featured guests at the annual Appellate Roundtable hosted by the Appellate Practice Section of the Indianapolis Bar Association yesterday afternoon. After playing this clip of a terrible (but short) Seventh Circuit oral argument, Justice Rucker briefly discussed brief writing and Chief Judge Vaidik discussed the importance of facts and storytelling (in briefs and oral argument). They then turned to audience questions on a wide variety of topics.
Brief Writing: Justice Rucker
Justice Rucker emphasized that brief writing is an art—not a science. What pleases one judge may not please another, although there are some inflexible rules, which include following the Appellate Rules. Those rules require when raising a claim about a jury instruction that counsel quote the jury instruction and the colloquy with the trial court.
Justice Rucker said underlining, bold, and CAPS should rarely be used for emphasis; rewrite the sentence if the point is not clear without it. He encouraged the use of headings and subheadings.
Finally, he stressed the importance of the Question Presented on transfer, providing some poor examples (which merely parrot the language of Appellate Rule 57(H)), then offered a good example that includes the substantive legal issue (paraphrased by me as follows): Is the decision of the Court of Appeals’ stating specific intent is not required for an attempted murder conviction in conflict with this Court’s opinion in Spradlin, which held specific intent is required.
Facts/Storytelling: Chief Judge Vaidik
Chief Judge Vaidik is a big fan of storytelling. She is currently reading Prof. Philip Meyer’s book. She encouraged the audience to present facts like a story; the best storyteller in a brief and oral argument is the most persuasive. Stories have universal themes of good and bad and include characters (they have names—personalize), characters have motives, and a story needs to be told from a point of view (creativity is encouraged here). Stories need to be consistent with the standard of review and include both good and bad facts—or the writer will lose credibility.
Some Questions and Answers
- E-Filing is Coming: The current target for e-filing of briefs is September 2015, although it could be later. Beginning this September the clerk’s office will scan briefs and records for the judges’ use on their computers or iPads. Chief Judge Vaidik’s current panel is using SharePoint. She remarked it is difficult to stay interested reading briefs on a computer.
- Supreme Court Conferences: Justice Rucker explained that before the Court’s weekly conference, each justice will have reviewed each case and voted to grant, discuss, or deny. If all five justices vote to deny, the case will not be discussed. Each case with at least one vote to grant or discuss will be discussed and voted on by all five justices at conference.
In cases that have not been assigned to a justice to author an opinion, non-routine motions at the Indiana Supreme Court are discussed by all the justices and voted on at conference. If the case has been assigned, the authoring justice will receive the motion and decide the course of action.
- Transfer From NFP Opinions: Justice Rucker acknowledged that the status of an opinion as not-for-publication is a factor that works against a grant of transfer. (Lawyers will therefore, wisely or unwisely, sometimes file a motion to publish with the Court of Appeals.) The justices prefer not to engage in error correction, although they sometimes do. Chief Judge Vaidik recited, with attribution, the ten to one odds of a transfer grant in an NFP versus FP opinion, which was previously posted on the ILB. Looking at all of 2013, the odds were not quite as dim for those with an NFP opinion at six to one.
- Standard of Review: Although the Appellate Rules require inclusion of the standard of review, lawyers should not go on and on about something not in dispute. As Chief Judge Vaidik explained, if she picks up a 39-page brief with a 3-page standard of review, she only has to read 36 pages.
- Oral Argument Preparation by the Judges/Justices: Justice Rucker explained that the Indiana Supreme Court is a “hot” bench, which has prepared for each argument. He reads all the briefs in the case, and in most civil cases a memo prepared by the administrator’s office. Sometimes his law clerks will also prepare a memo.
Chief Judge Vaidik explained that each Court of Appeals’ judge will have a three-ring binder prepared by the presumptive writing judge. The binder includes a bench brief with the key facts and issues and possibly some questions for the lawyers, copies of any key parts of the record, and copies of key cases or statutes. The three judges on the panel are unlikely to have discussed the case before the argument, except perhaps for a few minutes right before the argument begins.
- Exhibits at Oral Argument: Justice Rucker and Chief Judge Vaidik agreed that exhibits at oral argument can sometimes be helpful. They cited key statutory language or an insurance/contract provision as examples. As Chief Judge Vaidik explained, people/judges are better able to understand something if they hear it and see it at the same time. Exhibits should be limited to what judges must understand for the advocate to win. Every property dispute, for example, should include a map. They seldom find demonstrative exhibits helpful, including that “utility bucket” previously discussed here.
- Grandparent Visitation? Good Luck: In response to a question, Chief Judge Vaidik noted a pattern of limiting grandparent visitation, especially since this February opinion from the Indiana Supreme Court. She is a grandparent and has been dissenting quite a bit in some of these cases.
Posted by Marcia Oddi on August 14, 2014 12:58 PM
Posted to Schumm - Commentary