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Part I: You have the right to an attorney: frivolous appeals, Anders & potential reforms in Indiana

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Andrew L. Teel
As originally appeared in the October 2019 issue of Res Gestae

 

Fifty years ago, the Indiana Supreme Court expressed a lament that just as easily could have originated from the desk of any number of overworked and underfunded public defenders.

 

This is one of those cases where the evidence in our opinion is overwhelming in support of the conviction. ... In our opinion a great deal of useless effort and work has been expended in this case where there was no real or substantial grounds for an appeal. It is regrettable that under the circumstances an appeal has to be made in every case, regardless of merit.1

 

The problem of frivolous criminal appeals has not improved in the last half-century. In 2018, the Indiana Court of Appeals received 1,797 criminal appeals, nearly twice the number of civil appeals during the same year.2 Nonetheless, the court reversed more civil cases; 166 civil cases were reversed, compared to only 126 criminal cases during the same time period.3 Can anything be done to address the issue of meritless criminal appeals,4 and perhaps more importantly, should anything be done?

 

One solution, announced by the United States Supreme Court in Anders v. California,5 is the so-called Anders brief. The Anders brief advises the appellate court that a defendant’s first appeal as of right presents no non-frivolous issues. An accompanying motion requests leave of court for appointed counsel to withdraw from the representation. This process, or a variation thereof, is used in the federal appellate system as well as in many states. However, the process is not without its detractors, and several states, including Indiana, have rejected the procedure.

 

This article looks at the Anders decision, Indiana’s rejection of this solution, and the approaches of other states to the issue. Finally, this article will advocate for a structural change to the way Indiana handles appeals generally to reduce strain on both the judiciary and the bar.

 

I. Anders v. California

 

I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him … . He wishes to file a brief in this matter on his own behalf.6

 

This letter was the extent of the appellate filings by appointed counsel for Charles Robert Anders following his conviction for felony possession of marijuana. Anders would go on to lose that appeal after he was forced to represent himself pro se.7 His application for writ of habeas corpus, alleging that he was denied the right to counsel in his original appeal, fared no better in the California appellate system.8

 

The U.S. Supreme Court accepted Anders’ habeas petition, viewing it as a chance to address “a continuing line of cases … concerning discrimination against the indigent defendant on his first appeal.”9 Disapproving the perfunctory no-merit letter process used in California, the Court announced the process that is still utilized in federal courts:

 

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court – not counsel – then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.10

 

The Court viewed this process as beneficial to all involved: counsel would be shielded from claims of ineffective assistance; the court would be induced to more closely review the record on appeal; and the defendant would be assured “the same rights and opportunities on appeal – as nearly as is practicable – as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.”11

 

For the purposes of this article, it is noteworthy that neither the majority’s decision nor the sharp dissent from Justice Stewart12 suggest that Anders’ original counsel should have been compelled to proceed with a frivolous appeal. Anders did not make such a claim in his habeas petition; he argued instead that the court erred when it failed to appoint a second attorney after the first filed the no-merit letter.13 Justice Stewart, joined by two other justices, would have simply affirmed the constitutionality of the California no-merit letter process.14 The issue in Anders, then, was not whether appointed counsel should be relieved of the duty to file a frivolous appeal, but instead how counsel could achieve his escape.

 

II. Indiana’s rejection of Anders

 

Although Justice Stewart originally criticized the Anders procedure as “a single inflexible answer to the difficult problem of how to accord equal protection to indigent appellants in each of the 50 States,”15 later decisions of the Supreme Court have clarified that the procedure is “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may ... craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders.”16 Thus, the issue of whether, and how, to implement the Anders procedure was left to the individual states.

 

The Anders issue remained open in Indiana for more than four decades. In Packer v. State,17 the Indiana Court of Appeals appeared to expressly endorse the Anders procedure. Although the Anders issue was not directly before the court, the Court of Appeals felt compelled to “note our concern regarding the representation provided by Packer’s appellate counsel, a public defender.”18 The Vanderburgh County Public Defender advanced no argument on appeal, instead submitting a brief that repeatedly represented that counsel “is unable to construct a non-frivolous argument” for reversing the trial court.19 In the eyes of the Court of Appeals, counsel’s brief was a violation of Indiana Professional Conduct Rules 1.120 and 1.3.21 The Court of Appeals recognized that the brief was arguably consistent with Rule 3.3 requiring candor to the tribunal but instructed that the “better balance for counsel to strike” would be compliance with the Anders procedure.22

 

Seven years later, the Anders procedure was expressly rejected by our Supreme Court in Mosley v. State.23 Following a conviction on a single count of misdemeanor criminal trespass, Mosley’s appointed appellate counsel submitted a brief containing a four-paragraph argument section that stated, in a conclusory manner, that “Mr. Mosley’s actions do not meet the requirements of Resisting Law Enforcement.”24 The Court of Appeals affirmed Mosley’s conviction.25 However, the Court of Appeals also stated that “[w]hen there are no meritorious arguments to be made, the better approach is to file a brief in accordance with our decision in Packer … .”26

 

Our Supreme Court took the extraordinary step of accepting the case on transfer to address only what it conceded was the “moot” issue of the Anders procedure.27 After reviewing the prior treatment of Anders by Indiana’s appellate courts,28 the Supreme Court expressly disapproved of Packer and held “that Anders withdrawals are impermissible in Indiana in any criminal appeal.”29 Several factors were identified in support of the Court’s rejection of Anders. First, the Court described the process as “cumbersome and inefficient,” noting that counsel would likely spend the same amount of time complying with the Anders procedure than if he had simply filed a brief.30 The Court was also concerned that the Anders procedure would shift the work of reviewing the record to the Court of Appeals, and that the appointment of successor counsel in the event that meritorious issues were found would increase the time and money spent on indigent appeals.31 Additionally, the Court questioned the fairness of the Anders procedure, noting that it would “flag[] the case as without merit, which invites perfunctory review by the court.”32 The Court argued that any ethical concerns could be resolved by the limited exception to the requirement of meritorious claims in criminal proceedings33 and that even where meritorious issues were not evident in the record “counsel may still be able to solicit a sentence revision or even a change in the law.”34

 

III. A response to Mosley

 

While the Mosley decision is undoubtedly well researched and written, and well within the mainstream views on the subject, this author would suggest that the enumerated grounds for rejecting Anders either don’t withstand factual and legal scrutiny or have been dealt with through alternative processes by other jurisdictions. As set forth below, the intervening 10 years have not resulted in a more efficient criminal appellate system, nor a system of more careful appellate review.

 

A. Efficiency

 

Many of the concerns identified in Mosley come down to the assertion that the Anders procedure is more time consuming and costlier than simply having appointed counsel file a potentially meritless brief. In the words of our Supreme Court, “[r]equiring counsel to submit an ordinary brief – no matter how frivolous counsel regards the claims to be – is quicker, simpler, and places fewer demands on the appellate courts.”35 However, statistical analysis does not bear this out. As stated in

a Florida State University Law Review article cited within Mosley:

 

Because Anders involves additional steps of review for the appellate court, some opinions emphasize that the procedure is too time-consuming for the court. The survey responses do not indicate that following the dictates of Anders is generally more time-consuming than the average criminal appeal. Forty-nine percent of the courts reported that Anders review takes less time than the average criminal appeal, while forty-four percent indicated that Anders cases take about the same time to review as the average criminal case. Only seven percent indicated that their Anders review takes more time than the average appeal.36

 

Therefore, at the time Mosley was decided, the Court had evidence that its efficiency arguments were statistically unsupported.

 

A review of recent appellate statistics from those states utilizing the Anders procedure further calls into question Mosley’s efficiency claims. As of Dec. 31, 2018, the average age of appeals in Indiana as judged from the time of the filing of appellant’s reply brief to decision was 1.8 months.37 In Arkansas,38 the median time from conference (or oral argument, if one is held) to majority opinion in 2017 was 14 days for all appeals.39 In Iowa,40 the average time from transfer to the Court of Appeals to the filing of an opinion in 2018 was less than two months.41 In Wisconsin,42 2018 statistics show that no-merit filings were resolved, on average, 82 days faster than the average case resolved via three-judge opinion.43 All of these states utilize some version of the Anders procedure, and yet all have been able to manage caseloads at least as efficiently as Indiana.

 

 

Nor does the statistical evidence from the Indiana Court of Appeals support the idea that the Anders procedure lengthens review times. In 2008, the last full year when the Anders/Packer procedure was theoretically available to Indiana attorneys, our Court of Appeals disposed of 1,554 criminal appeals, and the average age of cases pending was 1.1 months.44 In 2018, the Court of Appeals disposed of just 1,038 criminal appeals, and the average age of cases pending grew to 1.8 months.45 Whatever efficiency gains the Supreme Court had hoped for in deciding Mosley have failed to materialize.46

 

B. Perfunctory review

 

As the Court itself recognized in Mosley, the view that Anders cases receive short shrift from appellate courts is not universal.47 In fact, some courts have concluded that Anders is problematic because, by forcing the appellate court to review the record for non-frivolous issues, a defendant whose counsel files an Anders brief receives a more complete review than a defendant whose counsel identifies specific issues.48 Nevertheless, the idea that a court may react negatively to an appeal that has been deemed frivolous by defense counsel has obvious superficial merit.

 

However, much like the efficiency argument, the assertion of perfunctory review does not hold up under statistical scrutiny. A 2017 study of state criminal appeals showed that 91.2 percent of appeals in which an Anders brief was filed received a review on the merits.49 Where no Anders brief was filed, that number dropped to 90.2 percent.50 Cases featuring an Anders brief were nearly twice as likely to receive merits review than pro se appeals (52.9 percent) and as a whole were more likely to receive merits review than appeals involving drug possession, disorderly conduct and court-order violations (82.1 percent, 89.5 percent and 82.1 percent, respectively).51

 

Once again, Indiana statistics largely reflect the nationwide trend. In 2008, the Court of Appeals reversed the trial court in 12.6 percent of the criminal appeals decided.52 In 2018, that number dropped to 12.2 percent.53 If criminal appeals are receiving a more thorough review post-Mosley, it has not resulted in the Court of Appeals accepting more of the arguments contained therein. Rather, it has likely only made it more difficult for the court to separate the meritorious wheat from the judicially mandated chaff.

 

Upon further reflection, these numbers should not be surprising. Inherent in the Anders procedure is a requirement that the court conduct “a full examination of all the proceedings.”54 Counsel will also have conducted a “conscientious review” of the record and will have filed a “brief referring to anything in the record that might arguably support the appeal.”55 The record will have had two complete reviews by the time a ruling on the Anders brief is ripe, leaving the court well positioned to determine the case on its merits. This is certainly what the statistical evidence shows, and given the pride that our Court of Appeals takes in preparing written opinions in each case,56 there is little reason to believe that it would be any different in Indiana.

 

C. Professional Rule 3.1

 

The Court’s focus on Professional Rule 3.1 alone, respectfully, fails to recognize the difference between trial and appellate practice. Whereas trial practice necessarily calls upon counsel to seek the introduction of only that evidence which is helpful to his client and to characterize all evidence in such a manner as to assist his client’s claims of innocence, appellate practice is markedly different. The purpose of a factual recitation in an appellate brief is to provide the court with “a fair statement of the facts from attorneys on both sides, not an exaggerated, self-serving version of the facts or omission of crucial facts.”57 The legal argument should be “a discussion seeking to determine the legal premises properly applicable to the case.”58 Unlike trial practice, then, the entire purpose of an appeal is to provide a relatively unbiased view of a case to the court so that the proper legal conclusion can be reached.

 

Given the foregoing, the more applicable rule to appellate practice is Professional Rule 3.3, requiring candor toward the tribunal. Notably, this rule has no exception for criminal defense counsel.59 Indeed, Indiana attorneys have been disciplined for failing to disclose relevant authority in criminal appeals.60 Moreover, our appellate courts, including the Supreme Court, have consistently criticized criminal appellate counsel for incomplete and/or biased recitations of facts.61

 

It is difficult to reconcile the requirements of Rule 3.3 with Mosley’s requirement of an adversarial brief even where no non-frivolous argument exists. Competent counsel will have reviewed the record and thoroughly researched the legal issues. To draft a brief, then, counsel in an Anders-like situation will be forced to either: (1) risk violating Rule 3.3 by failing to raise the factual and legal barriers to their client’s claims; or (2) disclose the factual and legal reasons why their client’s claims are frivolous, thereby violating the mandates of Mosley by drafting what is essentially an Anders brief.

 

This tension has been highlighted by the drafters of the Restatement (Third) on the Law Governing Lawyers. Section 110 of the Restatement provides that “[a] lawyer may not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.”62 Comment f. discusses the application of the rule to criminal defense counsel:

 

A criminal-defense lawyer may take any step required or permitted by the constitutional guarantee of the effective assistance of counsel. With respect to propositions of law, a criminal-defense lawyer may make any nonfrivolous63 argument. Under decisions of the United States Supreme Court, a lawyer representing a convicted person on appeal may be required to file a so-called Anders brief in the event the lawyer concludes that there is no nonfrivolous ground on which the appeal can be maintained.64

 

While Indiana does not follow this Restatement section, it is nonetheless noteworthy in that it recognizes the ethical dilemma that appointed criminal appellate counsel can face and expressly endorses Anders as the remedy.

 

D. Fallback arguments

 

Conceding that there are cases where there is “no colorable argument of trial court error,” Mosley directs counsel in such cases to “solicit a sentence revision or even a change in the law.”65 First, an argument to change the law is not always available. Take, for instance, a case where all legal questions have already been determined on appeal, the case is remanded for sentencing, and then that sentence is subsequently appealed. In such a case, the legal questions are res judicata and cannot be relitigated.66 Short of arguing for the abolition of claim and issue preclusion, a Sisyphean task to be sure, there can be no claim for even a change in the law.

 

Nor is a sentencing appeal the benign procedure envisioned by the Mosley court. The primary method for challenging a criminal sentence in Indiana is to invoke Indiana Appellate Rule 7(B).67 This involves an argument to the court that the sentence imposed is inappropriate given the nature of the offense and the character of the defendant.68 The question under Rule 7(B) is not whether a different sentence is more appropriate, but whether the sentence imposed is inappropriate.69

 

This path is not without risk. The same year it decided Mosley, the Supreme Court also issued its opinion in McCollough v. State.70 In that case, the Supreme Court held that “the appellate review and revise authority derived from Article 4 of the Indiana Constitution likewise includes the power to either reduce or increase a criminal sentence on appeal.”71 Thus, in situations where a sentencing appeal would be likewise frivolous, counsel following the dictates of Mosley risks exposing his client to an increased sentence.

 

A less risky,72 if equally unlikely to succeed, option for appealing a sentence can be found in Article 1, Section 16 of the Indiana Constitution. That Section provides, in relevant part, that “[a]ll penalties shall be proportioned to the nature of the offense.”73 While a constitutional challenge generally cannot be used to appeal a specific sentence within the appropriate statutory range,74 the Proportionality Clause can be used to challenge the criminal statute under which the charge is brought where the statute provides for a penalty that is “not graduated and proportioned to the nature of the offense.”75 There has been limited success pursuing appeals under the Proportionality Clause,76 but a defendant pursuing this line of argument must overcome “a heavy burden to show that the statute is unconstitutional.”77

 

In a philosophical sense, then, Mosley is correct that a sentencing challenge is a potential argument that can be advanced in most criminal appeals. However, it is also true that appeals where the sentence is the only appealable issue are often the hardest to reconcile with the mandates of Mosley. In nearly every sentencing appeal following a guilty plea, appellate counsel will have to overcome her client’s waiver of his right to appeal.78 While these waivers are not universally enforceable,79 they will often invalidate an appeal before it even begins. To make matters worse, some defendants agree to a definite sentence in their plea agreement. In those cases, the agreement is a “binding contract” barring a sentencing appeal.80 Some defendants are simply unrepentant recidivists, for whom a Rule 7(B) argument will almost certainly fail.81 In still other cases, a constitutional challenge will be directly contrary to established law.82 In each of these cases, and in countless more scenarios, the theory of Mosley runs headlong into the reality of the criminal justice system.

 

Editor’s Note: Read Part II, the conclusion of “You Have the Right to an Attorney: Frivolous Appeals, Anders and Potential Reforms in Indiana,” in next month’s magazine.

 

1. Cline v. State, 253 Ind. 264, 269, 252 N.E.2d 793, 796 (1969).

2. Court of Appeals of Indiana 2018 Annual Report, p. 1; https://www.in.gov/judiciary/appeals/files/2018-coa-annual-report.pdf.

3. Id., p. 2.

4. This article does not mean to suggest that meritless criminal appeals are the only explanation for the disparity in appellate outcomes. Civil appeals are inherently self-selecting, as clients will often be dissuaded from filing questionable appeals due to economic considerations. In addition, the standards of review are often far less deferential to the trial court in civil cases, particularly in the area of summary judgment. See Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (noting the de novo standard of review for questions of law).

5. 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967).

6. Id. at 742.

7. Id. at 740.

8. Id. at 741.

9. Id.

10. Id. at 744.

11. Id. at 745.

12. Justice Stewart called the majority’s procedural requirements “quixotic” and necessarily arising from a belief “that lawyers appointed to represent indigents are so likely to be lacking in diligence, competence, or professional honesty.” Id. at 746.

13. Id. at 740.

14. Id. at 747.

15. Id.

16. Smith v. Robbins, 528 U.S. 259, 276, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000).

17. 777 N.E.2d 733, 736 (Ind. Ct. App. 2002), disapproved of by Mosley v. State, 908 N.E.2d 599 (Ind. 2009).

18. Id. at 735-36.

19. Id. at 736.

20. “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

21. “A lawyer shall act with reasonable diligence and promptness in representing a client.”

22. Packer, 777 N.E.2d at 737.

23. 908 N.E.2d 599 (Ind. 2009).

24. Id. at 602.

25. Id.

26. Id.

27. Id. at 603-04.

28. See, e.g., Cline, supra; Dixon v. State, 284 N.E.2d 102, 152 Ind. App. 430 (1972); Simmons v. State, 310 N.E.2d 872, 262 Ind. 30 (1974); Powell v. State, 374 N.E.2d 495, 268 Ind. 134 (1978); Boone v. State, 449 N.E.2d 1077 (Ind. 1983); Music v. State, 489 N.E.2d 949 (Ind. 1986); Packer, supra.

29. Mosley, 908 N.E.2d at 607.

30. Id.

31. Id.

32. Id. at 608.

33. “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.” Ind. Prof. Conduct Rule 3.1.

34. Mosley, 908 N.E.2d at 608.

35. Id.

36. Martha C. Warner, “Anders in the Fifty States: Some Appellants’ Equal Protection is More Than Others,” 23 Fla. St. U. L. Rev. 625, 656 (1996) (emphasis added).

37. Court of Appeals of Indiana 2018 Annual Report, p. 2; https://www.in.gov/judiciary/appeals/files/2018-coa-annual-report.pdf.

38. Ark. Sup. Ct. R. 4-3.

39. Administrative Office of the Courts Annual Report 2018, p. 9; https://www.arcourts.gov/sites/default/files/annualreport2018_0.pdf.

40. Iowa R. Civ. P. 6.1005.

41. https://www.iowacourts.gov/iowa-courts/court-of-appeals/caseload-statistics.

42. Wis. Stat. §809.32.

43. https://www.wicourts.gov/ca/DisplayDocument.pdf?content=pdf&seqNo=239772.

44. Court of Appeals of Indiana 2008 Annual Report, p. 3; https://www.in.gov/judiciary/appeals/files/2008report.pdf.

45. Court of Appeals of Indiana 2018 Annual Report, p. 2; https://www.in.gov/judiciary/appeals/files/2018-coa-annual-report.pdf.

46. One explanation posited for the decrease in appellate efficiency post-2008 is the decision in Creech v. State, 887 N.E.2d 73 (Ind. 2008), a case that held that defendants could waive the right to appeal their sentence as part of their plea agreement. Post-Creech, many purely sentencing appeals were removed from the appellate docket, and those appeals generally took less judicial time to resolve. However, this author would suggest that Creech does not account entirely for the efficiency numbers, since it was decided on May 21, 2008, and therefore some of the efficiency losses should appear in the 2008 statistics.

47. Mosley, 908 N.E.2d at 608.

48. People v. Wende, 25 Cal. 3d 436, 442, 600 P.2d 1071, 1075 (1979), disapproved of by In re Sade C., 13 Cal. 4th 952, 920 P.2d 716 (1996).

49. Michael Heise, Nancy J. King and Nicole Heise, “State Criminal Appeals Revealed,” 70 Vanderbilt Law Review 1939, 1955-56 (2017).

50. Id.

51. Id.

52. Court of Appeals of Indiana 2008 Annual Report, p. 3; https://www.in.gov/judiciary/appeals/files/2008report.pdf.

53. Court of Appeals of Indiana 2018 Annual Report, p. 2; https://www.in.gov/judiciary/appeals/files/2018-coa-annual-report.pdf.

54. Anders, 386 U.S. at 744.

55. Id.

56. As stated by Chief Judge Nancy Vaidik in the preface to the Court of Appeals’ 2017 Annual Report:

As I talk to chief judges across the nation, I am amazed at the number of appellate courts in other states that merely issue orders summarily affirming lower court decisions, without benefit of explanation. The Court of Appeals of Indiana, on the other hand, writes full opinions in every case, providing a thorough explanation of the reasoning behind our decision. Just as importantly, we work conscientiously to ensure our opinions are of consistently high quality.

Court of Appeals of Indiana 2017 Annual Report; https://www.in.gov/judiciary/appeals/files/2017-coa-annual-report.pdf.

57. Cooper v. State, 261 Ind. 659, 661, 309 N.E.2d 807, 808 (1974).

58. In re Thonert, 733 N.E.2d 932, 934 (Ind. 2000).

59. Ind. Prof. Conduct R. 3.3, cmt. 7.

60. In re Thonert, 733 N.E.2d at 934.

61. See, e.g., Ashbaugh v. State, 272 Ind. 557, 564, 400 N.E.2d 767, 772 (1980); Cooper, supra.

62. Restatement (Third) of the Law Governing Lawyers §110(1) (2000).

63. For the purposes of this Restatement section, “a frivolous position is one that a lawyer of ordinary competence would recognize as so lacking in merit that there is no substantial possibility that the tribunal would accept it.” Id., cmt. d. Thus, appointed counsel cannot simply make any argument with some scintilla of hope but rather is forced to select only those issues with a “substantial possibility” of success.

64. Id., cmt. f.

65. Mosley, 908 N.E.2d at 608.

66. See, e.g., DeWeese v. State, 156 Ind. App. 277, 296 N.E.2d 128 (1973).

67. See Anglemeyer v. State, 868 N.E.2d 482 (Ind. 2007).

68. Id. at 494.

69. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

70. 900 N.E.2d 745.

71. Id. at 750.

72. Because a proportionality argument does not invoke Article 4 of the Indiana Constitution, it likely does not expose a criminal defendant to the risk of a sentence enhancement under McCollough.

73. Ind. Const. Art. 1, §16.

74. See, e.g., Newton v. State, 456 N.E.2d 736, 745 (Ind. Ct. App. 1983) (“Where the sentence is within the statute governing the offense charged, it cannot be challenged as being too severe.”).

75. Hevenor v. State, 784 N.E.2d 937, 939 (Ind. Ct. App. 2003).

76. E.g., Connor v. State, 626 N.E.2d 803 (Ind. 1993).

77. Brown v. State, 856 N.E.2d 739, 741 (Ind. Ct. App. 2006).

78. Creech, supra.

79. Crider v. State, 984 N.E.2d 618 (Ind. 2013).

80. Badger v. State, 637 N.E.2d 800, 803 (Ind. 1994).

81. Howard v. State, 873 N.E.2d 685 (Ind. Ct. App. 2007).

82. Johnson v. State, 103 N.E.3d 704 (Ind. Ct. App. 2018).

Andrew L. Teel is a law clerk to the Hon. Holly A. Brady, United States District Court for the Northern District of Indiana. Prior to his clerkship, Andrew represented indigent criminal defendants on appeal in both state and federal courts. Contact Andrew at Andrew_Teel@innd.uscourts.gov.

 

 

Andrew L. Teel

Law Clerk to the

Hon. Holly A. Brady

U.S. District Court for the

Northern District of Indiana

Andrew_Teel@innd.uscourts.gov

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Ethics Curbstone: Using independent contractor legal assistants to facilitate client communications

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Donald R. Lundberg and Caitlin S. Schroeder

As originally appeared in the October 2019 issue of Res Gestae

 

We commented in our July/August 2019 column on the amendment to Rule of Professional Conduct Guideline 9.1 concerning the use of nonlawyer assistants. “2018: An Overview of Lawyer Regulation,” Vol. 63, No. 1 Res Gestae at 19. Since that amendment, some confusion has surfaced about what the amendment does and does not accomplish.

 

For context, refer to our column discussing the old version of this guideline, which was prompted by a Supreme Court lawyer discipline decision. “Supreme Court Drops Paralegal Bombshell,” Vol. 61, No. 5 Res Gestae 20 (December 2017) (Guideline 9.1 was violated when lawyer used services of nonlawyer assistant as independent contractor).

 

On July 3, 2019, the Supreme Court published an order, effective immediately, making the following changes in Guideline 9.1:

 

A non-lawyer assistant shall perform services only under the direct supervision of a lawyer authorized to practice in the State of Indiana. Independent non-lawyer assistants are prohibited from establishing a direct relationship with a client to provide legal services. A lawyer is responsible for all of the professional actions of a non-lawyer assistant performing services at the lawyer’s direction and should take reasonable measures to iensure that the non-lawyer assistant’s conduct is consistent with the lawyer’s obligations under the Rules of Professional Conduct.

 

This amendment addresses the issue raised by Matter of Bernacchi, 83 N.E.3d 700 (Ind. 2017), and Matter of Stern, 11 N.E.3d 917 (Ind. 2014), by eliminating a nonlawyer assistant’s employment status (employee versus independent contractor) as a relevant consideration and focusing on reasonable lawyer supervision of the nonlawyer assistant’s work. There is nothing particularly remarkable about that. Independent of Guideline 9.1, lawyers have always had an obligation to reasonably supervise nonlawyer assistants, regardless of their employment status. Under Rule 5.3(b), “With respect to a nonlawyer employed or retained by or associated with a lawyer, a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Lawyers must provide reasonable supervision to nonlawyer assistants regardless of whether they are employees or independent contractors. For more discussion about supervision of subordinate lawyers and nonlawyer assistants, see Lundberg, “Managerial and Supervisory Responsibility for Avoiding Conflicts of Interest,” Vol. 57, No. 8 Res Gestae 32 (April 2014).

 

Confusion seems to have been engendered by the new language prohibiting independent nonlawyer assistants “from establishing a direct relationship with a client to provide legal services.” Some have read this as implying that a nonlawyer assistant is prohibited from communicating with a lawyer’s clients. That is not what the amendment says or what the Court intended. The plain meaning of this language is that an independent nonlawyer assistant cannot have a “direct” relationship with a client to provide legal services. This language is about the nature of the relationship, not how communications occur. In other words, the relationship between a nonlawyer assistant and a client must be under the auspices of a lawyer’s work for a client and the lawyer’s supervision over the nonlawyer assistant’s work for the client. If a nonlawyer assistant were to provide legal services directly to a client without the supervision of a lawyer, it would constitute the unauthorized practice of law.

 

Understanding what this language does not mean is informed by an understanding of what nonlawyer assistants (both employees and independent contractors) may and may not do in Indiana. A lawyer may delegate to a nonlawyer assistant any task normally performed by the lawyer, unless otherwise prohibited. Guideline 9.2. Exceptions to Guideline 9.2 include: a lawyer may not delegate to a nonlawyer assistant “(a) responsibility for establishing an attorney-client relationship; (b) responsibility for establishing the amount of a fee to be charged for a legal service; or (c) responsibility for a legal opinion rendered to a client.” Guideline 9.3. Therefore, this amendment does not prohibit direct communications between a nonlawyer assistant and the supervising lawyer’s client.

 

Not only is using nonlawyer assistants to facilitate client communications permissible, clients can benefit from the resulting convenience and cost savings. Nonlawyer assistants are generally more available than their supervising lawyers to take client telephone calls, field client emails, and provide responsive information that does not warrant the personal attention of a lawyer. Further, clients can save because these tasks are handled by a timekeeper whose billing rate is lower than the supervising lawyer’s.

There may be reasons lawyers might be required to treat nonlawyer assistants as employees under some circumstances and not under other circumstances, but these reasons are an issue of employment law, not ethics, and are outside the scope of this column.

 

The amendment to Guideline 9.1 was meant to benefit lawyers and clients by authorizing the use of nonlawyer assistants regardless of employment classification, as long as they are properly supervised. In our view, nothing in the language of amended Guideline 9.1 lessens a lawyer’s ability to use the services of a properly supervised independent contractor nonlawyer assistant as a communication intermediary between lawyer and client.

 

 

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Recent Decisions: Appellate civil case law update

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Maggie L. Smith

As originally appeared in the October 2019 issue of Res Gestae

 

In July, the Indiana Supreme Court issued no civil opinions and granted transfer in no civil cases. The Indiana Court of Appeals issued 12 published civil opinions. The full texts of these opinions are available via Casemaker.

 

COURT OF APPEALS OPINIONS

 

In case of first impression involving farming equipment, Court of Appeals holds that, although separately purchased from combine, corn head is integral part of harvesting equipment and economic loss doctrine bars tort damages

 

When harvesting corn crops, farmers must use the combination of a “corn head” attached to the front of a combine; without the corn head, a combine cannot harvest crops. Prior to the beginning of the 2015 harvest season, a farm decided to trade in its existing combine and corn head and purchase updated models. The farm purchased the combine in January and the corn head in August, just before the harvest season started. Both products were manufactured by the same manufacturer, and both products were sold by the same seller.

 

During the harvest season, the combine caught fire and destroyed both the combine and the corn head. The farm’s insurer paid for the property damage, and then the insurer sued the seller and manufacturer in a product-liability and breach-of-implied-warranty action, seeking to recover that payment.

 

Because the only damage involved was economic loss (not personal injury), the seller and manufacturer asserted the economic loss doctrine, arguing that the proper remedy was based in contract, not tort. The insurer argued that the corn head should be considered “other property,” separate from the combine, and therefore the economic loss doctrine did not apply.

 

In a matter of first impression in Indiana regarding farm equipment, the court in Indiana Farm Bureau v. CNH Industrial America, LLC, __ N.E.3d __, 2019 WL 3310364 (Ind. Ct. App. 2019) (Kirsch, J.),1 explained that “the question is what product was purchased by the Farm.” Reviewing Indiana case law, the court concluded the proper inquiry focuses on whether all the components were “an integral part” of the transaction.

 

In concluding that the product “purchased by the Farm was a functioning Combine and the Corn Head was intended to be part of that bargained-for product,” the court explained that even though the combine and corn head were purchased several months apart, both pieces of equipment were purchased “for the stated purpose of harvesting corn” and the evidence established that a combine “is worthless for harvesting corn without a Corn Head.” Thus, the corn head and combine were “‘an integral part’ of the harvesting equipment purchased by the Farm” and any losses were from “disappointed commercial expectation of properly functioning farm equipment,” not tort.

 

The court also held the lawsuit could not proceed because the seller had disclaimed all implied warranties. The insurer argued the word “merchantability” must be included in any disclaimer, but the court noted the statute allows implied warranties to be excluded “by expressions like ‘as is,’ ‘with all faults,’ or other language that in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

 

In case of first impression, Court of Appeals holds medical malpractice plaintiff is not required to accept provider’s offer of settlement

 

Plaintiff brought a medical malpractice action against a provider. Provider thereafter offered to settle the matter for the full amount for which he was responsible under the Medical Malpractice Act ($250,000) so that Plaintiff could then proceed against the Patient’s Compensation Fund. This settlement offer was rejected by Plaintiff because it came with 13 conditions and because Plaintiff believed he was entitled to two statutory caps and, therefore, two payments of $250,000. Provider asked to be dismissed from the case because Plaintiff was required to accept his offer to settle for the statutory cap of $250,000 and forego a jury trial.

 

A unanimous Court of Appeals in Wallen v. Hossler, 130 N.E.3d 138 (Ind. Ct. App. 2019) (Najam, J.), disagreed. The statute at issue, Indiana Code Section 34-18-15-3, provides: “If a health care provider or its insurer has agreed to settle its liability on a claim by payment of its policy limits of two hundred fifty thousand dollars ($250,000), and the claimant is demanding an amount in excess of that amount, the following procedure must be followed … .”

 

The court held the statute only applies to “a plaintiff, who has in fact settled with a defendant health care provider.” The court found the provider’s argument “would have us define ‘agreed to settle’ to mean ‘offered to settle.’ … An offer is not an agreement. A settlement agreement requires at least two parties.” The court continued: “… a plaintiff is always entitled to reject a defendant health care provider’s settlement offer and proceed to trial to determine his total damages, including damages to be paid by the Fund. … In other words, a settlement cannot be compelled.”

 

The court also addressed whether one or two statutory caps applied and rejected Plaintiff’s argument that two acts of malpractice existed, “a misdiagnosis and, separately, a failure to diagnose.” The court found all claims arise from the provider’s misinterpretation of a CT scan and, therefore, Plaintiff was only entitled to recover one statutory cap.

 

Court of Appeals holds state law negligence claims under Wrongful Death Act are preempted by federal statute authorizing Medicare program

 

An estate brought a wrongful death action against the deceased’s Medicare insurer, claiming the insurer negligently denied coverage that contributed to the patient’s death. In Snyder v. Prompt Medical Transportation, Inc., 2019 WL 3331337 (Ind. Ct. App. 2019) (Baker, J.), a unanimous Court of Appeals held this state law negligence claims were preempted.

 

The court explained that the Medicare statutes contain an express preemption clause and, consequently, “state standards are preempted when they implicate ‘conduct that was governed by federal Medicare standards.’ … Put another way, ‘as long as a federal standard exists regarding the conduct at issue,’ state law must yield.”

 

Here, a court necessarily would have to analyze the Medicare rules as to coverage against the estate’s state law negligence claims, and thus “a court would have to apply a state law standard of care to a coverage determination governed by federal law. … [T]he Estate’s complaint could theoretically allow Humana to be found negligent even if it fully complied with all federal laws and regulations. Under these circumstances, we can only conclude that the Estate’s claims, which sound in state law that must be applied with respect to Medicare Part C, are preempted pursuant to Part C’s express preemption provision.”

 

The plaintiff also sued the patient’s medical providers for medical malpractice. The providers moved for summary judgment. Attempting to create a genuine issue of fact to defeat summary judgment, the plaintiff submitted an affidavit from an expert as to causation. When the providers thereafter deposed the expert, his testimony changed, and he “opined implicitly” and “explicitly” that the providers’ conduct did not cause the patient’s death.

 

The court explained: “Where an affiant’s deposition and affidavit are in conflict, ‘the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.’”

 

Here, Plaintiff did not provide any evidence that its expert’s deposition testimony was mistaken, and therefore the expert’s later deposition testimony governed the causation inquiry rather than his initial affidavit. The court therefore affirmed the grant of summary judgment to the providers.

 

ADDITIONAL COURT OF APPEALS DECISIONS

 

• “Considering the nuances of all of the Indiana cases in this area [whether claim falls within scope of Medical Malpractice Act] together with our supreme court’s recent direction in Cox, we believe that the current test under Trial Rule 12(B)(1) as to whether the Medical Malpractice Act applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship. It is further important to realize that, under Cox, such conduct may include otherwise tortious or abusive conduct.” Martinez v. Oaklawn Psychiatric Center, Inc., 128 N.E.3d 549 (Ind. Ct. App. 2019) (Mathias, J.).

• In civil forfeiture case involving property seized from home of defendant convicted of dealing in marijuana, “we conclude that no genuine issues of material fact existed regarding the $22,907, Dell laptop, and Nikon camera found in the safe and that summary judgment in favor of [prosecutor] was appropriately granted as to that property. We conclude that a genuine issue of fact was left to be resolved regarding the truck and reverse and remand for further proceedings. We also conclude that [prosecutor] failed to make a prima facie case regarding the Toshiba laptop and the rifle, and, therefore, we remand for entry of summary judgment in favor of [defendants] as to those two items.” Coulter v. Caviness, 128 N.E.3d 541 (Ind. Ct. App. 2019) (Riley, J.).

 

1. The author was involved in this appeal.

 

Maggie L. Smith is a 1996 magna cum laude graduate of the University of Arizona School of Law and was a visiting third-year student at the Indiana University Maurer School of Law. Following graduation from law school, she clerked for the Indiana Supreme Court, Hon. Brent E. Dickson, and served as an adjunct law professor. Maggie is a member with Frost Brown Todd LLC and practices in the area of appellate litigation. She is active in the Indiana appellate bar and serves as a frequent commentator and lecturer on appellate issues. Maggie can be reached at mlsmith@fbtlaw.com.

 

 

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Criminal Justice Notes: Invalid waiver of jury, other holdings

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Prof. Joel M. Schumm

As originally appeared in the October 2019 issue of Res Gestae

 

In July the Indiana Supreme Court decided one case, which offers important guidance to trial judges regarding jury trial requests in misdemeanor cases. The Court of Appeals decided several cases, including ones addressing waiver of counsel, double jeopardy, competency for community corrections revocation hearings, and defense counsel advisements regarding deportation.

 

Invalid waiver of jury in misdemeanor case

 

The Sixth Amendment and Article 1, Section 13 of the Indiana Constitution guarantee criminal defendants the right to a jury trial. But Indiana Criminal Procedure Rule 22 outlines a procedure for demanding a jury trial in misdemeanor cases; it provides in part:

 

A defendant charged with a misdemeanor may demand trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

 

Ind. Crim. R. 22. Defendants forfeit the right

 

when the record does not contain a timely request for a jury trial and establishes that the defendant: (1) was advised of the right to a jury trial; (2) had at least fifteen days advance notice of the trial date; (3) was advised of the need to file a written demand for a jury trial at least ten days before the first scheduled trial date and that failure to do so will result in waiver of the right; and (4) understood the advisements.

 

Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019).

 

The defendant in Dadouch was provided with two different written advisement forms, but neither advised that he “had to file a demand for a jury trial within ten days before the first scheduled trial date or that his failure to file a demand within that period would result in the waiver of his right.” Id. at 805. The first form also failed to advise him that the demand had to be in writing, and the transcript of the initial hearing included no mention of Criminal Rule 22 or the right to a jury trial. Id. Finding no valid waiver of the right to a jury trial, the Indiana Supreme Court reversed. Id.

 

The Court concluded by noting the Criminal Benchbook provides an advisement dialogue that would have insured the requirements of Criminal Rule 22 were met. Id. It further urged trial judges to use an accurate written advisement of rights form, and “[t]he very best practice in these cases is to use both a written advisement of rights form together with the dialogue to insure that a reversal does not occur.” Id.

 

COURT OF APPEALS CASES

 

Denial of request for counsel long after defendant requested self-representation

 

Criminal defendants have the right to represent themselves at trial. Faretta v. California, 422 U.S. 806, 835 (1975) (concluding that defendants “must be free personally to decide whether in his particular case counsel is to his advantage”). Trial courts must be meticulous in securing a waiver of the right to counsel. See generally Wirthlin v. State, 99 N.E.3d 699, 704 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1060 (Ind. 2018) (citing cases referencing the “serious and weighty responsibility ... to determine whether there was an intelligent and competent waiver” and noting that judges “must investigate as long and as thoroughly as the circumstances of the case before him demand”).

 

Davis v. State, No. 19A-CR-631, 2019 WL 3437003 (Ind. Ct. App. July 31, 2019), involves the less common scenario of a defendant seeking to change from self-representation to counsel-representation. Trial courts are given discretion in weighing five factors. Id. at *3 (citing Koehler v. State, 499 N.E.2d 196, 199 (Ind. 1986)).

 

In Davis, the self-represented defendant asked that counsel be appointed during his bench trial, more than one year after affirming that he wanted to represent himself. The Court of Appeals noted that granting the request would likely have required a lengthy continuance for counsel to become familiar with the case and caused inconvenience to the victim who had flown from out of state to testify. Id. at *3. Moreover, the trial court had fully advised the defendant of the dangers and disadvantages of waiving counsel and told him he could request counsel by “a letter or a motion.” Id. The Court of Appeals found no abuse of discretion in denying the request for counsel, “given the tardiness of Davis’ request and the trial court’s previous warnings about self-representation ... .” Id.1

 

No double jeopardy violation

 

Two convictions for the same conduct violate Indiana’s Double Jeopardy Clause if there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999). A “reasonable possibility” is more than a logical possibility, requiring a “practical assessment of whether the [fact-finder] may have latched on to exactly the same facts for both convictions.” Smith v. State, 129 N.E.3d 266, 269 (Ind. Ct. App. 2019). This assessment generally considers “the charging information, jury instructions, and arguments of counsel.” Id.

 

In Smith, the Court of Appeals found that separate and distinct facts supported convictions for attempted aggravated battery and criminal recklessness. Id. at 270. The court relied heavily on the State’s closing argument, which identified two separate incidents of shooting in recounting the evidence for each conviction. Id.

 

Defendants must be competent for community corrections revocation hearing

 

In Luster v. State, No. 19A-CR-129, 2019 WL 3070205, at *3 (Ind. Ct. App. July 15, 2019), the Court of Appeals made clear that a defendant’s “due process right to be competent at a probation revocation hearing” also applies in a community corrections revocation hearing. After the trial court sua sponte appointed two medical experts to assess competency, it “declined to consider the experts’ reports, which substantiated the court’s original concern.” Id. This due process violation required “remand with instructions for the trial court to consider the competency evaluations and make a determination of the defendant’s competency to understand and participate in the proceedings. Id.2

 

Counsel not ineffective in failing to advise of deportation risk

 

Pedro Rayo Zagal came to the United States from Mexico when he was seven years old, and he pleaded guilty to possession of cocaine several years later as a young adult. Zagal v. State, No. 19A-PC-694, 2019 WL 3309983, at *1 (Ind. Ct. App. July 24, 2019). The plea agreement included an advisement that he understood he “may be deported as a result” of the plea, and he acknowledged at the guilty plea hearing that he was fluent in English and understood the plea. Id.

 

A decade later, he sought post-conviction relief on the ground that his trial counsel had not advised him of the immigration consequences of his plea. He testified that he did not understand the language until he later spoke to an immigration lawyer, who told him he could not become a U.S. citizen and may be deported if the Deferred Action for Childhood Arrivals (DACA) program ended. Id. at *2.

 

The Court of Appeals affirmed the denial of post-conviction relief. It quoted the following passage from a recent Indiana Supreme Court case:

 

At the very least, counsel need only read the form to his client or stand by patiently while the client reads the unmarked form to satisfy Padilla’s mandate. See Padilla [v. Kentucky], 559 U.S. [356, 369 (2010)] (acknowledging immigration law’s complexity and explaining that when the law is unclear on whether a client faces deportation, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences”). Reading the form puts the client on notice that a guilty plea amounts to a criminal conviction that might have immigration consequences and the client should consult an attorney.

 

Id. at *3 (quoting Bobadilla v. State, 117 N.E.3d 1272, 1283 (Ind. 2019)). Even if trial counsel did not provide a separate advisement, Rayo Zagal was advised of the possibility of deportation at his initial hearing, which the Court of Appeals held is “all that is required.” Id.3

 

 

 

1. The Court of Appeals also observed the defendant “effectively defended against the charges pro se,” specifically noting his impeachment of the victim on cross-examination and not guilty verdicts on two of the three counts. Id. The five Koehler factors, though, are forward-looking, including “the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” Id.

2. The Court of Appeals made clear its decision was grounded in constitutional due process and not Indiana Code Section 35-36-3-1(a), which applies only to pretrial determinations of competency. Id. at *2 n.2. Thus, one might question whether the statutory requirement of two or three disinterested psychiatrists, psychologists or physicians applies in probation and community correction revocation hearings (although appointment of such professionals and their neutral evaluation surely goes a long way in ensuring due process).

3. A petition to transfer is pending; it urges the Indiana Supreme Court to consider the importance of “special circumstances” in cases where a defendant “later learns, after entering a plea of guilty to a deportable offense, that he was not fully and adequately advised by trial counsel.” Pet. to Trans. at 16.

 

Joel M. Schumm, jmschumm@iupui.edu, is Clinical Professor of Law at I.U. McKinney School of Law in Indianapolis.

 

 

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Indiana University’s storied past

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Austen L. Parrish

As originally appeared in the October 2019 issue of Res Gestae

 

Indiana University celebrates its bicentennial this year, and the excitement is building on the Bloomington campus. Although the Maurer School of Law is a few years younger – we were founded in 1842 – we are joining the festivities with a yearlong list of events that honor our past and look toward the future.

 

Modeled after the state’s program, the I.U. Historical Marker Program notes significant people, places, events and organizations that have had an extraordinary impact on the university, state, nation and world. Two of the law school’s significant milestones are being honored with historical markers in the coming year.

 

Justice Juanita Kidd Stout, JD ’48, LLM ’54, LLD ’66, is being recognized for her impact on the legal profession and her pathbreaking firsts as an African American woman. After establishing her own practice and being appointed to the district attorney’s office, in 1959 she received an interim appointment to the Philadelphia Municipal Court. Two months later, she was elected to that position and became the first African American woman in the United States to win election (or to be appointed) to a court of record. She followed that up by being the first black woman to be elected to the Court of Common Pleas. In 1988, Stout was appointed to the Pennsylvania Supreme Court – the first black woman in the nation to serve on a state supreme court.

 

During her long, pioneering career, Justice Stout received numerous awards and tributes, including the naming of the main criminal courthouse in Philadelphia in her honor in 2012, the first state building in Pennsylvania to be named after a woman. As a reflection of her life’s significance, her papers are held at the Library of Congress.

 

The second historical marker commemorates two of the law school’s legendary professors in connection with a landmark First Amendment case that began in Bloomington in front of Bryan Hall and ended up in front of the U.S. Supreme Court.

 

In response to the National Guard’s killing of four students demonstrating against the Vietnam War at Kent State University on May 4, 1970, a group of anti-war protesters gathered at Bryan Hall on May 13, demanding to see President Joseph L. Sutton. Student Greg Hess shouted, “We’ll take the f— street later,” resulting in his arrest for violating the state’s disorderly conduct statute. Represented by Prof. F. Thomas Schornhorst, Hess was convicted, and the Indiana Supreme Court upheld the conviction. Believing a First Amendment issue was at stake, Schornhorst and colleague Prof. Patrick L. Baude appealed to the U.S. Supreme Court. In 1973, the Court overturned Hess’ conviction, finding the arrest to have been an unconstitutional infringement of his First Amendment rights. Hess v. Indiana remains an important case for its protection of speech that does not incite immediate unlawful action.

 

Law school alumni are playing an important part in the bicentennial celebrations. In late October we will welcome alumni board members to campus for a one-day summit at which they will not only connect with one another but also have the opportunity to meet and support our current students. The summit kicks off a weekend of alumni-related activities, including a reunion of all current and former alumni board members – more than 200 in all – and reunions for the classes of 1959, 1969, 1994 and 2009.

 

One of the highlights of this year’s alumni weekend will be the presentation of the school’s Distinguished Service Award, given annually to alumni who have distinguished themselves in service to their communities and the school in ways far exceeding traditional business, professional and civic duties. This year’s honorees – Donald R. Lundberg, Susan C. Lynch, James G. Parker and Marisol Sanchez – will be recognized at a luncheon attended by the entire first-year JD class. The award presentation is part of the law school’s innovative Legal Profession course, which introduces students to professionalism and the varied ways that graduates carve out a successful career.

 

Next summer, we will welcome our Global Advisory Board to campus as part of the university’s bicentennial celebration. This board builds partnerships and advances the school’s mission in 10 countries around the world.

 

The law school is also celebrating Indiana University’s bicentennial in partnership with other schools and departments across campus. For instance, a new undergraduate major in international law and institutions, which is a collaboration between the law school and the Hamilton Lugar School of Global & International Studies, will be formally launched this fall with a visit from Michael D. Kirby, a former justice of the High Court of Australia. The new MS degree in law and cybersecurity, offered in collaboration with the School of Informatics, Computing & Engineering and the Kelley School of Business, has quickly become the largest of our dual-degree programs. And we plan to join with other schools in commemoration of the centennial of the Nineteenth Amendment’s ratification.

 

Law school faculty, too, are being recognized for their achievements during this bicentennial year. Three of them – Jeannine A. Bell, Mark D. Janis and Leandra Lederman – were elected to the American Law Institute in the past year, bringing to 16 the number of faculty who are members of this prestigious organization. Prof. Lederman was selected to deliver the university’s annual Tracy M. Sonneborn Lecture, which honors the late eminent scientist and exemplary teacher. This summer, Prof. Susan H. Williams was awarded the Australian National University Zines Prize for her essay on constitutional law in Burma (Myanmar). And Prof. Luis Fuentes-Rohwer’s recent article in Harvard Law Review was cited by U.S. Supreme Court Justice Elena Kagan in her dissenting opinion in Rucho v. Common Cause, the Court’s latest word on gerrymandering. Fuentes-Rohwer and Prof. Christiana Ochoa were recently named Herman B Wells Professors. Members of our faculty are recognized nationally and internationally for their research and scholarship: Prof. Brian J. Broughman just returned from the University of Pennsylvania School of Law; Prof. Lederman returned from a Fulbright fellowship in Luxembourg; Prof. Deborah A. Widiss returned from a Fulbright fellowship in Australia; Prof. H. Timothy Lovelace is visiting at the University of Virginia School of Law; and Prof. Gina-Gail S. Fletcher is visiting this semester at Duke Law School.

 

Our students continue to make important contributions. Beyond Bloomington, our students had the opportunity to participate in a unique program this past summer that exposed them to many facets of rural and small-city practice. The Rural Justice Initiative paired five students with judges in Orange, Putnam, Vigo, Washington and White counties, assisting them with research, drafting motions and opinions, and learning about courtroom practice and procedure. The program is the brainchild of Indiana Chief Justice Loretta H. Rush and Judge Edward W. Najam Jr. of the Indiana Court of Appeals. Another example is our Federal Habeas Project, where students under the supervision of Prof. Michael K. Ausbrook ’93 have successfully argued cases before the Indiana Supreme Court and the U.S. Court of Appeals for the Seventh Circuit.

 

The school’s many other achievements in its nearly 200-year history are much too numerous to list here. Fortunately, they are being chronicled in a new book to be released this fall. Indiana University Maurer School of Law: The First 175 Years tells the fascinating story of the individuals who built, strengthened and sustained the law school from our modest beginnings to our present-day place as one of the nation’s best public law schools. Its authors are two people with vast institutional knowledge: Linda K. Fariss, director of the Jerome Hall Law Library emerita, and Keith A. Buckley, the current director. This handsome, illustrated book will be available in November.

 

The Maurer School of Law and Indiana University share a storied past. The university’s bicentennial ties both schools together in what promises to be a memorable year of celebration and reflection.

 

Austen L. Parrish is dean and James H. Rudy Professor of Law at the Indiana University Maurer School of Law. Opinions expressed are those of the author. Contact Dean Parrish at austparr@indiana.edu.

 

 

 

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Leveling up skills equals huge ROI

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Tara Puckey

As originally appeared in the October 2019 issue of Res Gestae

 

The necessary skills needed for jobs in every industry are evolving at a rapid pace. While attorneys are familiar with continuing education in the legal field, it may be surprising that some of the “workplace basics” need consistent refreshing as well.

 

As it stands today, the half-life of a learned skill is just five years, which means that most of what you learned 10 years ago is obsolete, and half of what you learned five years ago is irrelevant. If we’re talking about skills based in technology, those numbers are even lower. In turn, jobs sit empty in almost every field. A study from the National Federation of Independent Businesses said that 45 percent of small businesses were unable to find qualified applicants and 66 percent of jobs are vacant for more than 12 weeks.

 

Even more telling, employers are finding that the lack of skills isn’t even tied directly to the technical aspects of job performance. A LinkedIn survey showed that 57 percent of employers feel their employees need more development in soft skills than hard skills. Findings by the Stanford Research Institute International and the Carnegie Mellon Foundation determined that 75 percent of long-term job success depends on soft skills mastery and only 25 percent on technical skills.

 

Pair all that with the fact that the average time spent at a job is now just 4.2 years, and all sides of the workforce – employers and employees – are realizing that it does more for the organization’s bottom line to level up employee skills than to hire. Current staff are already familiar with the basics and are engrained in the culture, cutting the learning curve and building on a foundation of people who have a truly vested interest in the success of the organization and those around them.

 

So how do employers work to level up the skills of current employees? It all starts with building a culture focused on learning and growth, one that truly demonstrates through action and not just lip service.

 

Time: Encouraging employees (that’s key) and providing them with time dedicated to learning are quick and easy ways to show you’re committed to helping them grow. Build in time for free webinars; support requests for time off to attend professional development activities; and work to create networking opportunities that benefit you and your staff.

 

Money: Budget, budget, budget. Early on, set aside funds for employee training so it’s harder to ignore when weighing expenses midyear. Don’t forget to fund association or professional memberships, and be proactive in sharing the benefits with employees (and yourself).

 

Caution: Don’t assume you know the best way for others to learn. Studies show that information doesn’t stick if people aren’t able to learn based on their own unique styles. Also, don’t forget tenured employees – everyone needs the opportunity to learn, and in-house training can benefit all.

 

Plan: If you’re not putting new skills to use or creating space for employees to share what they’ve learned, you’re missing out. Bring back new skills and tools and put them into practice, and find a way to share your new knowledge with others, too.

 

Once a culture of learning exists, be sure to cover the skills’ “bases” completely. From legal and technical training to essential skills like communication, leadership, critical thinking, listening, adaptability, organization, teamwork and punctuality, a well-rounded employee who is consistently learning more is earning more for the organization. A collaborative study from Boston College, Harvard University and the University of Michigan found that soft-skills training boosts productivity and retention by 12 percent and delivers a 250 percent return on investment. Those are numbers we simply can’t ignore.

 

So, get it done – build a culture, make a plan and get to learning. The best gift you can give yourself, your employees and, ultimately, your practice is leveling up technical and soft skills with timely training that encourages continued growth.

 

From AI and technology, to leveling up job skills, to building working relationships and creating environments that focus on employees’ mental wellness, an upcoming Law Practice Management series from ISBA will educate participants on what shifts in the business landscape mean for their firms, their workforce and the future of the legal profession. The “Drivers of Change” series is a four-part mix of live and on-demand courses designed to explore the internal and external factors that are transforming the legal workplace.

 

Tara Puckey, Indiana State Bar Association Law Practice Management Consultant, practiceCoach@inbar.org

 

 

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President's Perspective: Using our influence for good!

Posted By Indiana State Bar Association, Friday, November 8, 2019

By Leslie Craig Henderzahs

As originally appeared in the October 2019 issue of Res Gestae

 

Lawyers are people of influence, leaders, who should and do use their influence to help others.

Merriam-Webster reports “influence” first referred to a celestial fluid believed to flow from the stars. As the fluid reached earth, it supposedly affected the actions of the planets’ inhabitants, especially humans. Today, it is defined as the power to change or affect someone or something.

 

What is a person of influence? Does it require certain education, strength, title, achievement, expertise or talent? Not necessarily.

 

An influencer is one who has an impact on others and is regarded as being knowledgeable and trustworthy – someone who gives good advice and shapes opinion. Dianna Booher, Forbes WomensMedia writer, reports, “Sometimes a child’s innocent question can influence a head of state to change a policy. The results of a college student’s research study may change the health habits of a nation. A poignant novel or movie scene may spark a national movement. In each of these cases, the result is the final measure of influence – not the rank of the idea’s originator.”

 

Perhaps many of you, like me, can recall the person(s) of influence in your life who steered you to law school or helped you land your first legal job. I started as a law clerk to the Hon. J. Patrick Endsley, magistrate judge of the Southern District of Indiana. There, he and his staff encouraged me to interact and engage with other law clerks, judges and attorneys. Today, I continue to work and maintain relationships with those I met in law school and at the court more than 30 years ago. That law school and court network paved the way to an interview with my current firm, Church Church Hittle + Antrim, where I have practiced since 1992. John C. Maxwell’s “knows the way, goes the way, and shows the way” leadership style followed by my colleagues at CCH+A, which encourages service to our communities and professional organizations, has influenced me greatly, and I recommend it to you. I immediately became involved in the bar and have enjoyed the relationships, camaraderie and business derived from the ISBA. Now, I have the honor of serving you as president because an individual or individuals presented me with the opportunity. It was the kind acts of lawyers, my partners, family and others – persons of influence in my life – who placed me in this position, which I am deeply honored to fulfill.

 

In the coming year, as a focused theme of the “President’s Perspective,” this page will acknowledge and celebrate lawyers who are influencing – helping – others. The celebration is not the kind with confetti, party favors and parades but the recognition and acknowledgement of the good work performed in our communities to improve the quality of life and judicial process for our members and fellow citizens. This page will also continue to report on trends, developments and issues in the legal industry that are certain to present challenges and progress and growth. Additionally, this page will celebrate the humanity of the practice of law and highlight the endeavors and selfless efforts by Association members and staff to promote the interests of clients, the public and the rule of law.

 

What’s ahead for the ISBA? How will our work influence and help others?

 

On the coattails of excellent leadership by those who have come before, the ISBA will continue its mission of improving the administration of justice and promoting the public understanding of the legal system. It will continue its vision of acting as the independent voice of the legal profession to advocate on behalf of our members, their clients and the public interest. More specifically, you will see continued efforts in the following areas:

 

Health insurance: Todd Spurgeon, the Association’s immediate past president, has worked tirelessly to understand complicated health insurance vehicles and concepts to provide affordable health insurance to our members. Although implementation has been slightly delayed by rulings from courts outside of Indiana, including the 10th Circuit, Todd remains steadfast in his efforts as we navigate and improve the intricate structure necessary to deliver this valuable member benefit. Our goal is to have something finalized by the end of this calendar year.

 

Foundation for strategic plan: Internally, we will be focused on laying the groundwork for the years ahead. We plan to begin work on our strategic plan, which should culminate in November 2020, just after my term ends. In the meantime, we will rigorously prepare and continue to hone the way staff and volunteers work together so that we are positioned for maximum success once a plan is adopted. As Abe Lincoln said, “If I had eight hours to chop down a tree, I’d spend six sharpening my axe.”

 

Partnerships in the legal community: Beyond the strategic plan, we will work diligently to further develop partnerships with those in the legal community – including the courts, law schools and county bar associations. For example, we are actively involved in the Coalition for Court Access, helping to make justice available to all, and we’re working to help the courts deal with the crush of those self-representing. We also plan to do more programming around the state, targeting communities that don’t have a robust metro bar in their locale.

 

Bar exam passage rates continue to be a concern to the ISBA, the American Bar Association and all those involved in the legal community. The Indiana Courts website at www.in.gov/judiciary/ ace/2526.htm reports the overall pass rate in February was 50 percent with first-time takers passing at a rate of 68 percent. In July, statistics improved – the overall pass rate was 62 percent, and for first-time takers, the pass rate was 74 percent. The ISBA is working with other stakeholders to address this concern.

 

Legislative issues: The State Bar constantly monitors legislative activity at the Statehouse and developments therein that affect our members, their clients and the public at large as we carefully navigate the evolution of important legislation.

 

Finally, we are expecting increased efforts by nonlawyers to sell massproduced legal services that traditionally require a law license. These services can affect the rights, property and lives of Indiana residents. There is no question we are reluctant to leave such work to nonlawyers or unregulated entities online, and we will continue to be watchful for such attempts.

 

With all these projects, plus those of our various sections and committees, rest assured there is a place for you in the ISBA. Join us in working with judges, lawyers, paralegals and partners to influence our profession and help others enjoy justice in Indiana.

 

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Investing in tech is a necessity

Posted By Indiana State Bar Association, Monday, October 21, 2019

By Tara Puckey

As originally appeared in the September 2019 issue of Res Gestae

 

Tech is present in every corner of the workplace – from human resources and finance to management and administration and everything in between. Smart businesses, large and small, are investing in technology because they understand it gives them an advantage over the competition – and innovation is inevitable.

 

The rapid pace of innovation, though, is a tricky one with which to wrestle, especially for small law practices that don’t always have the necessary resources to keep up with the latest in AI, chatbots or the IoT (Internet of Things – think controlling your lights with your smartphone). One of the biggest hurdles? Budget.

 

In 2017, Deloitte Insights found the average investment in technology across all industries was 3.28 percent. That number is only on the rise – especially in small businesses – as leaders move from a lean, stay-the-course outlook on finances to a growth mentality that shifts funds to invest in meaningful aspects of their business. A 2019 Capterra survey of small and midsize businesses indicates that most are doubling down on efforts in four key areas: finance and accounting, cloud computing, data security and digital marketing.

 

Digital marketing: This doesn’t have to be an all-out media blitz a la “Mad Men,” unless you’re ready for all that, but you do need to be out there for the world to find. Close to 90 percent of all consumers research businesses online before purchasing goods or services, so don’t think for a second that most aren’t checking you out long before walking in the door. Because of that, think of your practice’s website as the first and best place to invest as you boost your tech dollars.

 

Data security: With all the talk about General Data Protection Regulation (GDPR), data security is more mainstream than ever before. The same government rules and regulations on privacy and data protection apply to small, neighborhood businesses and giant corporations alike, meaning every business of every level is investing – or should be – in data security. Getting caught without it isn’t cheap: Cyberattacks can cost small businesses between $84,000 and $148,000 per incident, and 60 percent are belly up within six months of a breach. Have a professional check your data security and invest in making sure things stay buttoned up.

 

Cloud computing: Gone are the days where companies invest in custom built computing infrastructure. With low-maintenance, pay-as-you-go Software as a Service (SaaS), small businesses can get access to high-tech software and hefty storage like never before. And ease of access makes shifting “work anywhere” changes within the workplace much easier to navigate. Investigate how cloud computing can drive business value for your practice, create new opportunities to thrive, and give you access to the technology you need at a more affordable cost.

 

Finance and accounting: Put away the abacus and move into better business practices. Research shows that more than 53 percent of small and midsize businesses are budgeting for technology tools to beef up their accounting practices, a hallmark of highly successful businesses. From digital finance teams to receipt tracking and categorizing apps, tech not only boosts efficiency but can keep you out of trouble when it comes to having and maintaining a clean set of books. If you can only invest in one aspect of technology this budget cycle, start here.

 

While new investment in tech can be overwhelming, half the battle is simply having a basic understanding of what’s coming next, how it is positioned to change both the legal field and the business of your practice, and whether the tentative spread on positive/negative adoption is for you and your team. Learning about tech, investing in tech, it’s all necessary to maintain the successful business foundation that supports your legal product. Don’t sell that – or yourself – short by shying away from innovation in technology.

 

After all, as Stewart Brand said, “Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.”

 

From AI and technology, to leveling up job skills, to building working relationships and creating environments that focus on employees’ mental wellness, an upcoming Law Practice Management series from ISBA will educate participants on what shifts in the business landscape mean for their firms, their workforce and the future of the legal profession. The “Drivers of Change” series is a four-part mix of live and on-demand courses designed to explore the internal and external factors that are transforming the legal workplace.

 

Tara Puckey, Indiana State Bar Association Law Practice Management Consultant, practiceCoach@inbar.org

 

 

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President’s Perspective: That was fast

Posted By Indiana State Bar Association, Monday, October 21, 2019

By Todd Spurgeon

As originally appeared in the September 2019 issue of Res Gestae

 

Well, here it is.

 

This is my last “President’s Perspective.”

 

It’s just as bittersweet as I imagined it would be. A mere year is not enough time to accomplish a whole lot. There is still so much to be done, but alas my tenure is coming to a close. Those that have gone before me described what this ride would be like, but until you are in the seat, it is hard to comprehend fully what the experience will be.

 

In my first “Perspective,” I shared that I felt my goals were simple.

 

The ISBA will continue to serve as the independent voice of the Indiana legal profession; it will continue to work tirelessly to improve the administration of justice and promote public understanding of the legal system; and it will strive to be a champion of diversity in the profession. All the while, we will continue our work to do those things better, more effectively and even differently.

 

Essentially, I viewed my limited time in this role as a chance to continue to guide the Association through (or into) an era of change in our profession and to help the Association to continue to evolve to meet the needs and demands of our members, the public and the justice system. I would like to think we made progress along those lines. I would love to spend time here, sharing the great works that were accomplished this year by the ISBA from the legislature to the courthouse, but space simply doesn’t allow for that. Suffice it to say, your dedicated volunteer leaders, Executive Director Joe Skeel and the State Bar’s amazing staff are doing great work for you and on your behalf. They strive every day to make it easier for Hoosier lawyers to represent their clients and navigate the practice of law.

 

In this role, I have been blessed with the opportunity to travel across our state and across the country to meet with local, state and national bar leaders, lawyers, judges, legislators, members of Congress and our governor. I have seen that the ISBA is on the right track. I have also observed, as most of you have, that change – or maybe it is better described as evolution – is coming. This should come as no surprise as ours is a profession of constant change.

 

Some question the value of membership organizations such as ours. This past year has solidified the view (from 1922!) that with “the ever-growing complexity of the business and social problems with which lawyers as lawyers have to [address], the ever-growing volume and complexity of the law itself, and the new and intensive methods of doing business in law offices,” the ISBA is as important as ever.

From the bar exam to the delivery of legal services, from California to Utah to Arizona to our neighbor, Illinois, evolution is happening and likely at a more rapid pace than we’ve seen in the past. At this time, it is more important than ever that the collective voice of the legal profession be heard. The ISBA is uniquely positioned to make that happen. Frankly, whether we like it or not, we are faced with a couple of options. We can sit idly by and get run over by the change truck, or we can hop in and have a seat at the wheel or at least ride shotgun to have a voice as to the direction of that truck. The ISBA stands ready to help steer, just as it has since the late 1800s.

 

After all, some of the stated purposes of the ISBA are to “foster and advance the profession of law; to encourage and promote reforms in the law; to cultivate the science of jurisprudence; to secure the more efficient administration of justice; [and] to endorse and encourage reforms in legislation.” Advancing, reforming and cultivating – none of those suggest standing still, and the ISBA has focused on moving our profession forward.

 

This past year … actually the past three years have been the experience of a lifetime. I am a better person and a better lawyer for it. I think Indiana has the best legal community out there. I thought it before, and I’m even more confident now. I also know that under the outstanding leadership of your next president, Leslie Henderzahs, the ISBA will continue to position itself as a leader in our profession and an invaluable asset to our members.

 

 

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10 Leadership Insights from Adam Gwaltney

Posted By Indiana State Bar Association, Thursday, October 17, 2019

In today’s ISBA Annual Meeting session, “The Art of Delegation: How to Avoid Micro-Management and Get S@%! Done!” Adam Gwaltney of Ritman & Associates discussed strategies for being a knowledgeable leader who uses delegation to help teams succeed. Here are a few leadership tips he shared during the presentation:

  1. Be sure to show appreciation after the project is done.
  2. Good leaders are dependable. They show up on time and set good examples.
  3. Good leaders take initiative – action in the absence of orders.
  4. The military’s definition of tact: “Tact is being able to tell someone to go to Hell, and they look forward to the trip.”
  5. Look past potential leaders who can’t make a decision.
  6. Asking for help is healthy.
  7. Poor leaders overwork their staff.
  8. You must know your job before you can delegate work to someone else.
  9. Learn from each others’ success and failures, and allow others to learn from yours.
  10. Ask a person to help with something, but don’t tell them how to do it.

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