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Vol. 58, No. 9

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The Journal of the Indiana State Bar Association

RES GESTÆ May 2015

Vol. 58, No. 9




PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015











Donald R. Lundberg, Indianapolis

ISBA Probate, Trust & Real Property Section

Maggie L. Smith and Abigail T. Rom, Indianapolis

Jack Kenney, Indianapolis

Amy R. Wheatley and Larry R. Church, New Albany

F E AT U R E S 46 A CONVERSATION EDITOR Susan J. Ferrer sferrer@inbar.org GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino vmorretino@inbar.org ADVERTISING Chauncey L. Lipscomb magazine-advertising@inbar.org WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey wpc@inbar.org









23 ESSAY CONTEST 27 MARCH AGAINST HUNGER 29 FIT TO PRACTICE Cover photo by Vincent Morretino of the Indiana bar admission ceremony conducted May 19 in the Indiana Roof Ballroom in downtown Indianapolis

Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. © 2015 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.



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Favorite Problem: Problem: The not mine mine. Theone one that that is is not

Unless I am hired to solve

Unless, I am hired to solve someone else’s problem someone else’s problem INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax http://www.inbar.org

Next Favorite Problem: Next Theone oneaccompanied accompanied by aa solution The solution.

OFFICERS President Jeff R. Hawkins, Sullivan President-Elect Carol M. Adinamis, Westfield Vice President Mitchell R. Heppenheimer, South Bend Secretary Michael S. Dalrymple, Indianapolis Treasurer O. Adedoyin Gomih, Merrillville Counsel to the Ted A. Waggoner, Rochester President

Least Problem: Least Favorite Favorite Problem: The Theone onethat that II must must solve. solve

BOARD OF GOVERNORS 1st District 2nd District 3rd District 4th District 5th District 6th District 7th District 8th District 9th District 10th District 11th District 11th District 11th District At-Large District At-Large District Past President House of Delegates

Scott E. Yahne, Munster Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame Martin E. Seifert, Fort Wayne Candace D. Armstrong, Brook Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Wilford A. Hahn, Huntington Tonya J. Bond, Indianapolis Terry W. Tolliver, Indianapolis Andrew Z. Soshnick, Indianapolis Rafael A. Sanchez, Indianapolis Sonia C. Das, Indianapolis James Dimos, Indianapolis Andi M. Metzel, Indianapolis, Chair House of Delegates Hon. Thomas J. Felts, Fort Wayne, Chair-Elect Young Lawyers Matthew J. Light, Indianapolis, Section Chair

STAFF Executive Director Thomas A. Pyrz • tpyrz@inbar.org Administrative Assistant Barbara M. Whaley • bwhaley@inbar.org Associate Executive Director Susan T. Jacobs • sjacobs@inbar.org Administrative Assistant Julie A. Gott • jgott@inbar.org Director of Communications Susan J. Ferrer • sferrer@inbar.org Director of Public Relations & Social Media Carissa D. Long • clong@inbar.org Graphic Designer & Photographer Vincent Morretino • vmorretino@inbar.org Legislative Counsel Paje E. Felts • pfelts@inbar.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • mwilliams@inbar.org Administrative Assistant Barbara L. Mann • bmann@inbar.org Local & Specialty Bar Liaison Catheryne E. Pully • cpully@inbar.org Administrative Assistant Kimberly D. Latimore • klatimore@inbar.org Director of CLE Christina L. Fisher • cfisher@inbar.org Assistant to Director of CLE Kassandra Adams • kadams@inbar.org Section & Committee Liaison Melanie Zoeller • mzoeller@inbar.org Director of Meetings & Events Ashley W. Higgins • ahiggins@inbar.org Membership Records & Technology Coordinator Kevin M. Mohl • kmohl@inbar.org Bookkeeper & Convention Registrar Sherry Allan • sallan@inbar.org Receptionist Chauncey L. Lipscomb • clipscomb@inbar.org

Problems? Become part of the solution!


n a story attributed to Abraham Lincoln’s circuit riding days, the judge reportedly asked Lincoln one afternoon if he had heard Abe make the opposite argument in another case that morning. The future president reportedly answered something like, “Yes, your honor, but I was wrong this morning.” Law schools train students to argue both sides of an issue and propose alternative solutions to complex problems. This problemsolving skill distinguishes lawyers from many other professions because law schools train us to maintain objectivity and practice creativity when everyone else believes the sky is falling. I often introduce estate-planning clients to my services initially by saying that I am a professional pessimist whose job is to conceive the worst possible future, plan to make it better, and hope that none of the terrible things happen. I also tell people that I rank my preference of problems as illustrated in the diagram above. These days, the bench and bar face problem proliferation within that least favorite category – the problems that we must solve. Here are a few of those frustrating quandaries: • How can law schools afford to offer premium legal education to a contracting law student market? • How can small or impoverished communities access justice and conduct essential transactional business if young lawyers

perceive that they cannot afford to live and work within those communities? • If young lawyers do not live and work within a small or impoverished community, who will run for prosecutor and judge or seek appointments to defend people accused of crimes? • If wholly unregulated, Internet-based legal service providers can brazenly market an increasingly broad array of legal services without fear of prosecution for the unauthorized practice of law, how can anyone but the most skilled trial lawyers pay mortgages, student loans and bar association dues? • How can we advocate legitimately for equal rights and access to justice for disabled, underrepresented and disenfranchised people if we do not represent and enfranchise the same kinds of disadvantaged members of our own profession? • What law practice skills should we teach new lawyers today so that their law practices will remain relevant and sustainable in the next decade? (continued on p. 7)

PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS jeffh@hawkinslaw.com 2014-2015 RES GESTÆ • MAY 2015


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PRESIDENT’S PERSPECTIVE continued from page 5

The Indiana State Bar Association, the Indiana Supreme Court and Indiana’s accredited law schools are tackling many of these questions in the upcoming Indiana Legal Education Conclave at the I.U. Robert H. McKinney School of Law June 26-27. Indiana Chief Justice Loretta Rush and I are asking a carefully selected crosssection of bench, bar and academic representatives to engage some of these questions intensively during the two-day program and recommend next steps toward solutions. I encourage all lawyers, judges and educators to stay tuned for the conclave report and get ready to work on solutions when it emerges later this year. There are plenty of problems for all of us to tackle, but I think the 11,000+ members of our ISBA can solve many of the biggest problems. I invite all ISBA members to share ownership of the problems and solutions. I also welcome those lawyers, judges and educators who are not ISBA members to join the ISBA and become part of the solution.

ISBA’s Annual Day of Service hank you for making the 2014 Annual Day of Service a huge success! Nearly 150 judges, attorneys, law students, staff and family members volunteered, which meant we doubled, if not tripled, participation from 2013. It’s now time to Save the Date for the 2015 Annual Day of Service, so mark your calendars!


WHEN: Saturday, Sept. 19 WHO: Attorneys and judges from local bar associations throughout the state of Indiana, along with their families and staff


• Do our bar exams measure skills that paying clients will want or need in the next decade? • Should we regulate lawyers more strictly than unregulated nonlawyers that provide competing services with impunity (e.g., court e-filing, will and trust drafting, business entity incorporation and organization, divorce and family law advice and representation, etc.)? • What is the practice of law (e.g., court e-filing, will and trust drafting, business entity incorporation and organization, divorce and family law advice and representation, etc.)? • What will be the practice of law 10 years from now? • Which of us can afford to practice law 10 years from now?

WHAT: Attorneys and judges from across the state will come together in their respective counties to engage in hands-on community service. From cleaning up local neighborhoods to volunteering at local shelters, attorneys and judges will have the opportunity to work together to make their communities better. Activities may include volunteering at a local soup kitchen or homeless shelter; providing painting or cleanup services for local neighborhoods in need; or assisting the Red Cross, Salvation Army or Habitat for Humanity.

WHERE: Your local communities! District liaisons will work with local bars to coordinate efforts in every county for the Annual Day of Service. WHY: The focus of the Annual Day of Service is hands-on community service, with the goal to inspire attorneys to get their hands dirty in helping build and clean up their local parks, adopting streets, building homes; unifying members of state, local and specialty bar associations; and highlighting the “good works” of the legal community as a whole. The goal is to make this event bigger and bigger every year. The ISBA Service Committee helped local bar associations coordinate 11 projects involving 11 counties, including Allen, Lake, LaPorte, Marion, Morgan, Newton/Jasper/Benton, St. Joseph, Steuben and Vanderburgh counties, which almost doubled involvement from 2013. Add your county to the list and get involved today! For more information or to add your county & event to the Annual Day of Service project list, you may contact Jaime Oss, Annual Day of Service director, at joss@hmkattorneys.com or Catheryne Pully at the State Bar, cpully@inbar.org.



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By Bill Brooks

A willingness to work together is Evansville’s story



little more than three hours southwest of the state capital, Indiana’s third-largest city hugs the Ohio River. It’s a place one of its biggest boosters calls “incredibly boring – and incredibly stable – for the last 30 to 40 years.” So why is Evansville preparing to host a new medical school associated with Indiana University and three other schools? And build a new convention hotel? And how has Evansville pulled off creative reuses of some of its oldest buildings? And how is it building protected bike lanes? The answers to those questions were revealed to members of the State Bar’s Leadership Development Academy March 12-13 when they visited this dynamic Indiana city. Despite a near-constant drizzle, the Pocket City’s vibrancy showed through. “We don’t just talk about it. We get things done,” said Lynn Miller-Pease, executive director of Leadership Evansville, when she took part in a panel discussion involving five community activists.

Evansville’s challenges are great, Miller-Pease said, “but I don’t know of anyplace else where people are so willing to work with each other.” Miller-Pease used a term both familiar and near & dear to each academy class: servant leadership. She said that for nearly four decades her organization has worked to help people discover what their assets are. “And after 38 years, what do you do with all those servant leaders?” The answer, she said, was a community-wide visioning process in partnership with city government and community organizations – finding the right path to get the work done. “We did not start with ‘what’s the problem?’” Miller-Pease said. “We started with ‘what’s positive, what’s possible? “We turned the question around: ‘What can we do next? How can we use these talented people to help us get there?’” Joshua Armstrong, director of Downtown Alliance, said Evansville’s relatively small size works in its favor. “This is a com-

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munity where an individual can get together with two or three others and make a difference,” he said. Other panelists contributing to the stimulating session were Anne McKim, executive director of the Arts Council of Southwestern Indiana; Kelley Coures, executive director of the city’s Department of Metropolitan Development; and Scott Wylie, director of the Vanderburgh Community Foundation. Wylie encouraged the lawyers to not only become philanthropists, whether through time or money, but also to encourage their clients to consider philanthropy. He said people may want to give back, but they don’t know how. “When we are [giving back] with our time and talent,” he said, “we’re sending credible messages of community and philanthropy.” In a separate session, Evansville Mayor Lloyd Winnecke – a former television news reporter and anchorman – described a leadership style that seemed to mesh with the message from the earlier panel. “I ask for help,” Winnecke said, describing the community-wide effort known as “VOICE.” He said the effort involved 32 extremely well-attended community meetings that sought to identify key areas for Evansville’s future. “We had people getting engaged at very high levels,” he said. “We had great ideas, but the real key was reaching out. We got a lot of people involved.” After a rolling tour of some of the downtown’s targeted buildings and areas, the LDA class landed at the headquarters of Berry Plastics, an Evansville success story of global significance. Founded in 1967 by three men with one injection molding machine, Berry Plastics is now a company with $5 billion in annual revenue employing 16,000 people at almost 100 manufacturing sites around the world – including the

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large facility near downtown Evansville. Berry Plastics produces 35,000 different products for more than 13,000 different customers.

property counsel; and Cathy Nestrick, deputy general counsel and orchestrator of the LDA’s visit to Berry Plastics.

The tour included Berry’s own in-house division of “creative types,” Blue Clover Studios. The class wandered through a model grocery, a hair salon and a house – all stocked with a seemingly endless array of Berry products holding such goods as coffee, mayonnaise, marinade, anti-freeze, aspirin and chicken. The model garage even housed a real, though non-working, Mini Cooper. (Fun fact: Berry Plastics produces 80 percent of the McDonald’s cups worldwide.)

That discussion included successes and failures in overseas ventures, decisions on what and when to patent, the challenges of consumer safety (much of Berry’s business involves medicines), and issues of environmental responsibility (one of Berry’s latest creations is a thermoplastic cup that is 100-percent recyclable, now being used by both Dunkin’ Donuts and 7-Eleven).

Next up was a discussion involving Chairman and CEO Jonathan Rich; Executive Vice President Jeff Thompson, who formerly served as in-house counsel; Adam Borgman, senior intellectual

The difference between winning companies and the others, Thompson said, “is people and how effectively they work together.” He described the Berry family as “classic Midwest culture: nice folks who enjoy working with each other. But peel the onion back one layer, and

they’re people who are incredibly competitive. “You take a group of people who went to the University of Evansville, to the University of Southern Indiana, to Purdue and Rose-Hulman – and they beat Harvard every day, if you have a culture that allows them to succeed.” Berry’s involvement in the community is deep, but Rich said the firm’s commitment wasn’t entirely selfless. With Berry needing to attract talent from all over the world to come to Evansville, he said, “We do it because it’s in our best interest to do it.” Any LDA session wouldn’t be complete without a face-to-face with a member of the Indiana Supreme Court. That role was filled (continued on page 11)



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EVANSVILLE continued from page 9 this session by Justice Mark Massa, who spoke about the honor and responsibility of being an attorney and the role the rule of law plays in allowing a free society to function. No matter what field of law is involved, he told the class members, “you’ll be protecting the Rule of Law that holds it all together.” Massa also spoke to the importance of honesty. “Be ever mindful of the oath you have taken,” he said. “In a world of obfuscation and spin, who will tell the truth if not lawyers?” He pointed out that, on any committee or task force, the lawyers can be easily identified. “They’re the most focused, most able to stick to the task.” Relevancy, he said, is what lawyers bring to everything – by knowing what matters. Massa was joined by his colleague, Justice Steven David, a founding LDA Committee member who has attended every session this year.

the first session in January 2012. The learned chief justice told Class 1 that he “remains very teachable, even to this day.” Tolliver told the packed courtroom in Evansville that the lecture series named for Shepard would bring influential speakers to the Evansville community to present on topics such as the rule of law, professionalism and leadership. “Think of how many issues, whether personal, professional or political, could be resolved simply based upon a willingness to listen to the other side and ‘be teachable,’” Tolliver remarked. Standing in a handsomely restored courtroom dedicated in his honor by the EBA, Shepard spoke about the wonderful heritage of Evansville attorneys, a list that includes John Marshall Harlan, the U.S. Supreme Court justice who cast the lone dissent in Plessy v. Ferguson. Harlan was a Kentuckian,

Shepard noted, but he practiced law in Evansville and married an Evansville girl. Evansville lawyers, he added, led the charge to ensure that “even the worst people are entitled to a fair trial, even those the community is against.” Those lawyers, Shepard said, “inspire us to do great things,” adding praise for the Leadership Development Academy. “The Indiana State Bar Association has taken responsibility to ‘build’ more lawyers for [our] communities – and it is the Leadership Development Academy that really matters.” Bill Brooks is a media consultant and freelance writer in Indianapolis, Ind.

The LDA session began with a program in the long-dormant Old Courthouse, a historic edifice that Evansville has struggled for decades to find a suitable reuse. But it was alive with activity this one evening, when the Evansville Bar Association (EBA) co-hosted with LDA a reception for former Chief Justice of Indiana Randall T. Shepard, a native of Evansville. The former chief justice accepted a check for $32,609.42 on behalf of the Evansville Bar Foundation. This presentation was the proud finale of the class project that the LDA inaugural class began three years ago. The funds will be used by the Evansville Bar Foundation to create and endow a leadership lecture series in Shepard’s name. In presenting the check, LDA inaugural class member and now LDA Committee member Terry Tolliver recalled when then Chief Justice Shepard spoke to his class during RES GESTÆ • MAY 2015


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Achievement award nominations sought Nominations due Aug. 10


he following awards will be presented at the State Bar’s Annual Meeting in French Lick in October. For more information and/or nomination forms, contact the ISBA at 317/639-5465 or 800/266-2581. Nomination forms are also available as downloadable PDF files at the ISBA website, www.inbar.org.

CIVILITY AWARDS Sponsored by the Litigation Section The ISBA Litigation Section’s Civility Awards recognize an attorney and judge for outstanding civility and professionalism in their dealings with fellow judges, attorneys, parties, witnesses and the public. Send your nominations to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at mzoeller@inbar.org.

GALE M. PHELPS AWARD Sponsored by the Family & Juvenile Law Section The Gale M. Phelps Award is named in memory of Gale M. Phelps, a former chair of the ISBA Family & Juvenile Law Section and one of the most active members of the section, who passed away JOHN ROBERT PANICO Mediator • Arbitrator • Fact Finder Statewide Dispute Resolution Services Employment • Labor • Civil Rights

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in 2003. Factors considered in the selection of the recipient reflect Gale’s contributions to the family law legal community and include: • Exceptional service to the profession: unsolicited mentoring to new attorneys, reaching out to other lawyers, and working with attorneys on an individualized basis; • Highest level of competence/ improving the profession: reviewing legislation and shaping family law policies, contributing to educational seminars, serving in leadership positions for legal and nonlegal organizations; • Raising the level of professionalism and civility in domestic relations matters: going beyond the client’s basic needs, maintaining respect for the court system and its participants; and • High moral character and ethical standards Send your nominations to: Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Maryann at mwilliams@inbar.org.

RABB EMISON AWARDS Sponsored by the Diversity Committee The Rabb Emison Awards, named for its first recipient in the individual category, recognize an individual and an organization that have demonstrated a commitment to promote diversity and/or equality in the legal profession and in the membership of the Indiana State Bar Association. Send your nominations to: Whitney Ruffin Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Whitney at wruffin@inbar.org.

OUTSTANDING JUDGE AWARD Sponsored by the Young Lawyers Section The ISBA Young Lawyers Section is accepting nominations for this year’s Outstanding Judge Award. The criteria for the award are as follows: 1. The nominee provides substantial education or mentoring to young lawyers. 2. The nominee fosters civility among those attorneys who practice before the bench. 3. The nominee epitomizes the core values of our profession – honesty, competence and respect for the judicial system. 4. The nominee has a recognized reputation for providing service to the local community. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 The names of those submitting nominations for consideration shall be kept confidential to avoid any appearance of impropriety. Only current judges are eligible for this award. For more information, contact Christina at cfisher@inbar.org.

WOMEN IN THE LAW RECOGNITION AWARD Sponsored by the Women in the Law Committee State Bar members are invited to nominate an attorney for the Women in the Law Recognition Award, which is presented to an individual who has assisted in the advancement of women in the legal profession, served as a role model or mentor or has influenced women to pursue a career in law or for contributions to the legal profession as a whole or to a particular 2015


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area of practice. The nominee must be an attorney licensed in the state. Those making nominations are encouraged to submit letters of support. Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

who have rendered outstanding service to their communities in any of the following areas: • promoting a better understanding of our Constitution and the Bill of Rights; • encouraging greater respect for the law and the courts; • stimulating a deeper sense of responsibility so that citizens

recognize their duties as well as their rights; • contributing to the effective functioning of our institutions of government; • fostering a better understanding and appreciation of the rule of law. (continued on page 14)

For more information, contact Melanie at mzoeller@inbar.org.

TRAILBLAZER/ABRIENDO CAMINOS AWARD Sponsored by the Latino Affairs Committee The Latino Affairs Committee’s Trailblazer/Abriendo Caminos Award recognizes the outstanding achievements, commitment and leadership of a lawyer who has paved the way for the advancement of other Latino attorneys and/or the Latino community. This award recipient will personify excellence in the profession, especially by his/her steadfast commitment, vision, courage and tenacity, which have resulted in substantial and lasting contributions to the Latino legal profession as well as the broader Latino community. The nominee must be a current ISBA member. Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at mzoeller@inbar.org.

LIBERTY BELL AWARD Sponsored by the Young Lawyers Section The Liberty Bell Award celebrates community service that strengthens our system of freedom under law. Traditionally this award has been presented to nonlawyers

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AWARDS continued from page 13 This is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments. To nominate an individual, please submit the nomination form and explain why you feel this person deserves the Liberty Bell Award. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at cfisher@inbar.org.



• a nominee’s contributions in the areas of leadership, professional development and promotion of paralegals, legal administrators, law librarians or court administrators;

Sponsored by the Young Lawyers Section Nominated candidates will exemplify the virtues embodied in the oath required of all Indiana attorneys when admitted to the bar. To nominate a young lawyer, complete the nomination form and include a letter explaining why you believe your nominee should be considered for the award. An attorney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years of legal experience. If you prefer that your nomination remain anonymous, please advise, and we will honor your request. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at cfisher@inbar.org.



Sponsored by the Affiliate Membership Committee This award recognizes an affiliate member of the Indiana State Bar Association who has contributed to the legal profession. The selection committee will give primary consideration to nominees whose efforts offer evidence of distinctive service to the legal profession in the areas of paralegalism, legal administration, law librarianship or court administration. The selection committee may also consider:

• commitment to the Indiana State Bar Association; and • service not only to the legal community, but compassion and dedication to others by involvement and volunteer service to the community. Send your nomination to: Susan Jacobs Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Susan at sjacobs@inbar.org.

DAVID HAMACHER PUBLIC SERVICE AWARD Sponsored by the Appellate Practice Section The ISBA Appellate Practice Section is soliciting nominations for the David Hamacher Public Service Award. Any lawyer or nonlawyer may be nominated. The criteria for this award are as follows: high moral character and ethical standards; service to the community; peacemaking qualities; person not necessarily a lawyer; award not gender specific.

Send a written statement regarding why the nominee should be selected to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at mzoeller@inbar.org.

HON. VIOLA TALIAFERRO AWARD Sponsored by the Committee on Civil Rights of Children The Committee on Civil Rights of Children annually honors an individual who best exemplifies Judge Taliaferro’s courageous leadership in addressing the unmet legal needs of children and in raising the public’s awareness of these needs. Nominations for this award may be for an individual who is living or deceased. Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at mzoeller@inbar.org.

COMMUNITY SERVICE AWARD Sponsored by the Service Committee The Community Service Award was established by the ISBA Service Committee, a project of the first ISBA Leadership Development Academy class. The Service Committee was formed by the class with an interest in advancing the nonlegal service work of lawyers in their communities and state. Factors considered in the selection of the recipient reflect the core values the Service Committee wishes to promote and include: 1. exceptional nonlegal service work in their respective community (continued on page 16)

ISBA membership renewal goes online

With an eye on saving thousands of dollars, the Indiana State Bar Association has begun processing membership dues online. Via the State Bar’s new website and membership database, dues notices and reminders are automatically sent to your current email address. You can also print your membership card instantly! You can update your MyISBA profile today at www.inbar.org to make sure we have your current email address. Please note: As a member, your online profile has already been created for you. Once signed in, you can update your contact information by clicking on “Manage Profile” and then “Edit Bio.” You can also access member-exclusive pricing for CLE programs, utilize online discussion forums and more. If you haven't signed in to the new ISBA website yet, here's what you need: Username - your membership #; Password - inbar1896.

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AWARDS continued from page 14 – this does not include pro bono work, which is recognized separately; 2. an embodiment of the core values of our legal profession; 3. promoting community involvement; and 4. helping in underserved areas – this includes providing service in lower-income areas, youth initiatives, the elderly and infirm, schools, and similar areas. Send your nomination to: Catheryne Pully Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Catheryne at cpully@inbar.org.

HENRY HURST JUDICIAL ASSISTANCE AWARD Sponsored by the Federal Judiciary Committee The Federal Judiciary Committee is seeking nominations from federal judges, the public, attorneys practicing in Indiana’s federal courts, and a candidate’s peers for the Henry Hurst Judicial Assistance Award, which is named in memory of Henry Hurst, the first federal clerk of the district court of Indiana, who was sworn in on May 5, 1817, and served the entire state until 1835. Henry Hurst exemplified the importance of having highly skilled personnel assisting the federal judiciary in order to promote justice and efficiency in the courts.

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This year nominees for the Hurst Award shall be from the Southern District of Indiana and serve as a member of the district court clerk’s office or the district bankruptcy court clerk’s office, as a staff member to a district court judge or a district bankruptcy court judge, or as a member of the administrative personnel. Send your nomination to: Paje Felts Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Paje at pfelts@inbar.org. Please identify the nominee’s job title and provide a description of the candidate’s qualifications for the award.

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• Bullet Points: List four to six bullet points that describe the specific issues you plan to cover. Please note that sessions are one hour in length.

he ISBA Women in the Law Committee is proud to join Verizon, IndyCar and the Indianapolis Motor Speedway to support Hopeline from Verizon, a month-long initiative to collect used mobile phones, tablets and accessories (to include chargers and cases) to turn into a significant cash grant for the Indiana Coalition Against Domestic Violence (ICADV). The committee will be collecting your donated devices through June 7. If you’re attending a meeting at the State Bar’s headquarters in the next few weeks, please be sure to bring your old, unused mobile devices to donate! Visit www.verizon.com/about/ hopeline/get-involved for helpful tips regarding how to erase any data on your phone before donating.

• Level: The session is intended to be (1) introductory; (2) intermediate/legal update; or (3) advanced.


Drop-off location: Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

• Type of Materials: The ISBA encourages speakers to provide practical takeaways, such as sample contract language, draft policies or checklists, as a part of their written materials. Please indicate what type of takeaways you anticipate providing. • Biography: Please attach a resume or curriculum vitae that includes a list of previous presentations. If selected as a speaker, the information you provide will be used in the program brochure. Please be sure the spelling is correct and all relevant titles, information about degrees and credentials are included. Selected

speakers will be notified by midJuly. If you have any questions, contact Maryann Williams at mwilliams@inbar.org or 800/2662581.

Task force to study Indiana Tax Court he Supreme Court has created a seven-member task force to examine the caseload, resources, staffing, performance and operations of the Indiana Tax Court. The order creating the task force can be found at http://tinyurl.com/ Tax-Court-Task-Force. The task force is chaired by Indiana Court of Appeals Judge James S. Kirsch. Current Tax Court Judge Martha B. Wentworth and Senior Judge Thomas G. Fisher are serving as ex officio liaisons. The task force will provide a written report by March 2016.



Donate your old phone to benefit ICADV

Call for speakers he ISBA Health Law Section will be sponsoring its annual Health Law Symposium on Sept. 11. If you would like to be considered as a speaker for a Health Law Symposium, please email the information below to Maryann Williams at the ISBA at mwilliams @inbar.org. Submissions for consideration are due no later than July 1.


• Title of Proposal • Contact Information: name, title, firm/organization, address, city, state, zip code, phone # and email address for each presenter. • Audience: short paragraph describing the audience for whom your topic is intended and why the subject area is of importance. RES GESTÆ • MAY 2015


RG 05.15_RG 09.05 5/21/15 9:27 AM Page 18

In the Indiana Supreme Court

and without expectation of any greater fee when the services were rendered.

Order Amending Indiana Rule of Professional Conduct 6.7

(23) Financial Contribution. During the previous calendar year ending December 31, I have either (ai) made monetary contributionsed of approximately $ _____ to the Indiana Bar Foundation, to any of the local IRC 501(c)(3) pro bono districts listed at the Indiana Supreme Court website http:// www.in.gov/judiciary/probono/ 2338.htm, or to a legal service organization located in Indiana that is eligible for fee waiver under I.C. 3337-3-2(b); or (bii) made an in-kind contribution of tangible property fairly valued at $ _____ to one or more of the foregoing qualifying legal service organizations or pro bono districts.

nder the authority vested in this Court pursuant to Article 7, Section 4 of the Indiana Constitution providing for the admission and discipline of attorneys in this state, Indiana Rule of Professional Conduct 6.7 is amended to read as follows (deletions shown by striking and new text shown by underlining): ...



Rule 6.7 Pro Bono Reporting Requirement for Reporting of Direct Pro Bono Legal Services (a) Reporting Requirement. To assess the current and future extent of volunteer legal services provided directly to individuals of limited means and to encourage such services, an attorney must report Asas part of each the attorney’s annual registration the following information shall be reported: (1) Pro Bono Hours – no compensation. During the previous calendar year ending December 31, I have personally provided approximately _____ hours of reportable pro bono legal services for the previous calendar year ending December 31 legal services in Indiana or other states directly to individuals reasonably believed to be of limited means without charge and without any fee expectation when the services were rendered. (2) Pro Bono Hours – substantially reduced compensation. During the previous calendar year ending December 31, I have personally provided approximately _____ hours of legal services directly to individuals reasonably believed to be of limited means at a charge of less than 50% of my normal rate



(34) Exempt Persons. An attorney is I am exempt from reporting under this Rule who is exempt from the provision of pro bono legal services because he or she (i) I isam currently serving as a member of the judiciary or judicial staff, (ii) I amis a government lawyer prohibited by statute, rule, regulation, or agency policy from providing legal services outside myhis or her employment, (iii) I amis retired from the practice of law, or (iv) I maintains inactive standing with the Clerk of the Indiana Supreme Court. (b) Definitions. (1) Reportable pro bono legal services are those legal services rendered directly to or for the benefit of persons reasonably perceived to be of limited means without charge or expectation of a fee by the lawyer at the time the service commences. For purposes of this Rule persons of limited means are individuals or families whose household incomes are up to 200% of the federal poverty guidelines.

(2) Reportable pro bono legal services performed in other states by a member of the Indiana Bar are reportable as pro bono hours in Indiana. (3) Reportable pro bono legal services do not include legal services written off as bad debts, and they do not include services rendered to improve the law, the legal system, or the legal profession unless solely aimed at assisting persons of limited means. (cb) Reporting Required. While the professional responsibility to provide pro bono legal services is governed by Rule 6.1, the requirement to report voluntary pro bono service is governed by this Rule 6.7 and creates a mandatory reporting obligation, the violation of which may subject a lawyer to discipline. By requiring the affirmative reporting of pro bono legal services provided directly to an individual of limited means, this Rule 6.7 requires reporting only for a subset of the public interest legal service encouraged under Rule 6.1. (dc) Public Disclosure of Information Received. Information received pursuant to this Rule is declared confidential and shall not be publicly disclosed by the Indiana Supreme Court or any of its agencies, on an individual or firm-wide basis. This amendment shall take effect immediately. DONE at Indianapolis on April 30, 2015. Loretta H. Rush, Chief Justice of Indiana All Justices concur.

RG 05.15_RG 09.05 5/21/15 9:27 AM Page 19

By Donald R. Lundberg

Rule of Professional Conduct 6.7, Version 1.1


On April 30, the Court took mercy on my befuddled state and kindly amended Rule 6.7, effective immediately. The amended rule is more streamlined and readable, plus it addresses many of the questions I posed in October. Here are the key changes. First, the Court now provides a rationale for requiring the reporting of some, but not all, pro bono work. The purpose is: “To assess the current and future extent of volunteer legal services provided directly to individuals of limited means and to encourage such services … .” It is helpful to know that the purpose of the rule is to track specific information and not to denigrate other types of pro bono that fall within Rule 6.1 but not Rule 6.7. That said, the Court was transparent in its encouragement of pro bono legal representation of financially needy individuals. It is pretty clear that the Court wants to do more than collect information. It wants lawyers to use their skills to help poor people with legal needs. Second, the Court now also asks us to report reduced compensation pro bono representation so long as the fee is discounted below 50 percent of the lawyer’s usual

rate. Both no-fee and reduced-fee pro bono hours are reportable as good faith approximations. Third, whether no-fee or reduced-fee legal work qualifies as pro bono representation is determined when the services are provided, not when the representation commences. Many cases are accepted as pro bono matters from the get-go. But what about the paying client who has a bad financial turn of events or simply runs out of money to pay legal fees because the matter became more complicated than expected? This amendment acknowledges the laudable practice of lawyers who, rather than abandoning their clients who can no longer pay for legal services, stick with them with no further expectation of being paid. It happens often. Fourth, gone is the complicated linkage of reportable pro bono to clients whose income is below 200 percent of the federal poverty guidelines. Now, we will report pro bono hours for representing individuals “reasonably believed to be of limited means.” “Limited means” is not defined, so it is a flexible concept that allows lawyers to measure their pro bono clients’ ability to pay against what it would otherwise cost them to pay for the representation. Thus, a pro bono client might not be indigent in the absolute sense of the word, but might not have sufficient means to pay for legal representation, especially for complicated matters. Still, there is a limit to this more flexible approach. For example, a lawyer who represents a wealthy client for free because the lawyer believes in the cause is not engaged in reportable pro bono work. Fifth, the Court’s previous, confusing reference to pro bono legal services “directly to or for the benefit of” poor people has now been clarified so that reportable pro bono hours are only for direct

representation of individuals of limited means. Sixth, the Court still requires us to report financial support of the same classes of organizations, but direct monetary support must be reported in terms of actual, not estimated dollars. This is no burden since we will normally track those donations anyway for tax-deduction purposes. Seventh, the Court clarified that in-kind contributions do not include the value of donated services, but only “tangible property.” Also, the valuation question was left deliberately vague by a reference to the donated property as “fairly valued.” Eighth, the rule still says that the information the Court collects shall not be publicly disclosed by the Court, but it makes the additional declaration that the information is “confidential.” This makes it unambiguous that reported information is exempt from disclosure in response to a public records act request. See IC 5-14-3-4(a)(8). Lastly, the Court took a bit of the edge off the rule by dropping the statement that violation of the rule will subject lawyers to professional discipline. This was unnecessary inasmuch as non-reporting is not an option. The Court’s online annual registration portal will require us to report qualified pro bono hours and financial contributions. If we have nothing to report, we will insert zero. It simply won’t be possible to not report our qualified pro bono time or donations when we go through the annual registration process. The lawyer who fails to complete an annual registration will, as a technical Donald R. Lundberg Barnes & Thornburg LLP matter, fail to report


n my October 2014 column, I wrote about the Supreme Court’s new Rule of Professional Conduct 6.7, which required that certain pro bono legal work and financial contributions be reported on our annual attorney registration statements. Lundberg, “Pro Bono and Pro Bono Reporting,” Vol. 58, No. 3 Res Gestae 10. In that column, in addition to describing the rule, I raised some questions about aspects of the rule that I thought were confusing. While I am often in a state of confusion, in this case, I think there were quite a few other lawyers who shared my plight.

(continued on page 20)

Indianapolis, Ind. donald.lundberg@BTLaw.com



RG 05.15_RG 09.05 5/21/15 9:27 AM Page 20

ETHICS CURBSTONE continued from page 19

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pro bono; but then the lawyer will also be suspended for not registering, so the absence of a pro bono report is small potatoes. Since the amended rule does not have a retroactive effective date to Jan. 1, one point amended Rule 6.7 does not address is whether we must report 2015 pro bono in 2016 as though we operated under the first version for the first four months of the year and the amended version for the last eight months. In theory, this could be an issue with reduced-fee pro bono. Is reduced-fee pro bono done from January through April 2015 reportable? Given that the Court is asking for our good faith approximations and there is no auditing mechanism, I doubt anyone will get excited if lawyers look at the clarifications in the amended rule as a guide to reporting their pro bono work throughout all of 2015. In closing, amidst the technicalities of Rule 6.7, we should not lose track of Rule 6.1 and its strong moral claim on lawyers to render public interest legal services. In this, we fulfill our highest calling as professionals in the finest tradition of the bar. There are many opportunities for pro bono work available. Take advantage of them.

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Overhaul of residential real estate transactions with mortgage loans


hether or not you practice real estate law on a regular basis, a large percentage of attorneys, at one time or another, have reviewed closing paperwork for a client who is either selling or buying a house. After all, it is generally considered to be the largest single investment most Americans will make in their lifetime. A substantial overhaul of the rules and procedures governing consumer mortgage finance and the closing of residential real estate loans has been in process since the passing of the Dodd-Frank Wall Street Reform & Consumer Protection Act in 2010, including a complete departure from the current Good Faith Estimate, TruthIn-Lending and HUD-1 Settlement Statement. Since 1974, the Real Estate Settlement Procedures Act (RESPA), under the purview of the Department of Housing & Urban Development (HUD), has been the governing law of residential real estate transactions throughout the country. Effective January 2014, RESPA is now governed by the Consumer Financial Protection Bureau (CFPB), a federal entity created pursuant to Dodd-Frank. Beginning with mortgage loan applications taken on or after Aug. 1, 2015, there will no longer be the gridded HUD-1 Settlement Statement. It will be replaced with the Closing Disclosure Form, which is required to be given to the mortgagor no later than three days before the mortgagor signs the mortgage note at the closing. In addition to the Closing Disclosure Form, the CFPB has promulgated other forms directed specifically to the buyer and seller, which are expected to become commonplace. After 40 years of familiarity with the HUD-1, the mortgage and title industries have already spent the last year or more preparing for the

changes, including spending an estimated $314.7 million on new software to accommodate the new form. To familiarize yourself with the new forms and procedures, visit http://www.consumerfinance. gov/knowbeforeyouowe or contact the title insurance office of your choice in order for you to be fully

informed prior to representing a client buying or selling residential real estate. Promulgated by the ISBA Probate, Trust & Real Property Section







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TOPICS: Avoiding Grievances & Malpractice Adam E. Gwaltney, Ritman & Associates How to Deal With Clients Holly M. Harvey, Holly Harvey Law Practical Business Tips: Starting a Solo Practice Anthony M. Rose, Anthony Rose Law Firm Technology Every Solo Needs Matt LaMaster, Advantage Technologies

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RG 05.15_RG 09.05 5/21/15 9:27 AM Page 23

Annual ethics essay contest Deadline: Aug. 21

Entrant basics • Essay length must not exceed 1,800 words (including endnotes). • Select, in drafting your responses, from one of five provided prompts. • All entries must be electronically submitted on or before 11:59 a.m. EDT Friday, Aug. 21. Submissions will be judged by three Legal Ethics Committee members. The top five participants will present their essays to the committee and receive recognition at this year’s Annual Meeting Awards Luncheon at the historic French Lick Resort in October. Questions? Contact Catheryne Pully at the State Bar, cpully@inbar.org.

Goals: To (1) further the discourse on legal ethics in the profession generally and amongst Indiana law students and recent graduates in particular, and (2) allow the Association’s Legal Ethics Committee to continue assessing prevailing attitudes of those at the outset of their careers toward issues in professional responsibility.

RULES Eligibility: The contest is open to: (1) all Indiana law school current enrollees and recent graduates (i.e., received J.D. or LL.M. degree within the last year); (2) attorneys within their first three years of practice; and (3) paralegals with five years or less work experience. Length: Overall essay must not exceed 1,800 words (including endnotes). Topic: Participants shall base their entries on one of the five prompts described on page 24 of this issue of Res Gestae. Deadline: All essays will be electronically submitted, in Microsoft Word format, to ISBA Local & Specialty Bar Liaison Catheryne Pully (cpully@inbar.org) no later than 11:59 a.m. EDT Friday, Aug. 21. Finalists: Members from the Legal Ethics Committee will select, from all entries, five finalists, who will then receive an invitation to attend the committee’s Sept. 12 meeting, either in-person or telephonically, to present their essays and answer questions.


n promotion of the ongoing discussion about ethics in our profession, the State Bar’s Legal Ethics Committee, along with the Young Lawyers Section and Written Publications Committee, is again sponsoring the Association’s yearly ethics essay contest. The contest, open to Indiana law students, new lawyers and paralegals, boasts cash prizes for the top three entries as well as the chance to have one’s essay featured in the Association’s flagship publication, Res Gestae.


ISBA Legal Ethics Essay Contest

Winners: Committee members charged with judging submissions will award first-, second- and third-place titles to the top three responses. Winners will be contacted personally; all other entrants will be notified of contest results by email. Prizes: The first-place essayist, in addition to receiving a $250 cash prize, will have the opportunity to have his or her piece submitted for possible publication in Res Gestae, the Association’s flagship publication, with statewide readership among legal practitioners numbering in the thousands. The top entrant will also have the chance to compete for a Harrison Legal Writing Award, handed down annually by the Association’s Written Publications Committee, as well as be formally recognized at the Association’s Annual Meeting Awards Luncheon in October. Second- and third-place essayists will receive $150 and $100 for their efforts, respectively, and, along with the top response, have their entries reproduced in Addendum, the Association’s biweekly member e-newsletter. The top three submissions – as well as the two next-best essays – will earn mention in the event program for this year’s Annual Meeting Awards Luncheon.

GUIDELINES 1. Essays are to be typewritten, using either Times New Roman or Book Antiqua font, 12-point type. (continued on page 24)



RG 05.15_RG 09.05 5/21/15 9:27 AM Page 24

ETHICS ESSAY continued from page 23 2. Essay text is to be doublespaced, with one-inch margins on either side. 3. Essay pages are to be lowerright numbered, complete with author’s name. 4. Essay notes and citations are to be entered using the Bluebook legal style. 5. Essays are to reference at least one of the following legal authorities: the Indiana Rules of Professional Conduct; the Indiana Rules for Admission to the Bar & the Discipline of Attorneys; Indiana Court of Appeals (for-publication or reclassified memorandum) decisions; Indiana Supreme Court opinions. Essays are free, of course, to additionally reference: American Bar Association Model Rules of Professional Conduct; rules and case law governing ethical conduct and professional responsibility in other United States jurisdictions; exceedingly persuasive secondary sources.

PROMPTS 1. The Indiana Rules of Professional Conduct require a lawyer to “provide competent representation to a client.” Comment [2] to that Rule clarifies that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar … [a] lawyer can provide adequate representation in a wholly novel field through necessary study.” In an era of increasing lawyer specialization, is the Comment still true? If not, and it bears revising, what should the revised comment say? 2. As evidenced by Wisner v. Laney, 984 N.E.2d 1201 (Ind. 2012), Indiana courts have made clear that attorneys are obligated to behave in a “civil” manner when engaged in the practice of law. Federal courts also share this view (Flomo v. Bridgestone, 2010 WL 24


935553). However, the Indiana Rules of Professional Conduct neither explicitly impose such a burden, nor do they directly address its scope. Discuss (a) the source of this duty; (b) how it is defined; (c) whether it should be considered an “ethical” duty; and (d) how lawyers are to be disciplined for transgressions of said duty. 3. Technology has touched every part of our lives, complete with concomitant benefits and pitfalls. A paralegal in your workplace, having logged nearly four decades of service in our field, waxes nostalgic on the trials of going from a simple IBM Selectric typewriter in the early ’80s to the wide range of highly advanced programs now in daily use. Then drawing your attention to the American Bar Association’s 2012 formally approved change to the Model Rules of Professional Conduct (amending Comment [8] to Model Rule 1.1), she notes that multiple states have since incorporated some duty of “technological competence” into their rules, with some even going as far as to issuing advisory (and, in some cases, disciplinary) opinions on the subject. How do you react to her argument that Indiana also should change its rules accordingly, making it clear that lawyers must not only maintain a basic level of professional competency, but also keep pace with rapidly changing technology? 4. Full-time law students, by current American Bar Association accreditation standards for all law schools, are enjoined from working more than 20 hours per week while so enrolled. In demonstrating compliance with these requirements, schools are actually beginning to demand that students certify the number of hours they work while enrolled in classes – generally under the auspices of each institution’s

“honor code.” In light of today’s competitive job market, discuss the implications, per our Rules of Professional Conduct, for both the student who may effectively violate this guideline and the legal employer seeking to entice such students to work more weekly hours than presently permissible. 5. Fanciful Industries has a patent on a design for a “better” mousetrap and has been directly marketing that “better” mousetrap to various retailers. Rodent Enterprises, a competitor, markets its own mousetrap to other retailers. Fanciful believes that the Rodent trap infringes on its patent, and hires the law firm of France & England to bring a patent infringement action against Rodent. In that action, it seeks damages for Rodent’s direct infringement. It also seeks damages against Rodent for indirect infringement – for having induced Rodent’s customers to infringe on Fanciful’s patent. Lastly, it seeks injunctive relief enjoining Rodent (and others in active concert with Rodent) from infringing on Fanciful’s patent. Rodent denies infringement and otherwise challenges the validity of Fanciful’s patent. As the case progresses, Fanciful’s discovery requests to Rodent reveal, inter alia, Rodent’s customer list, containing names and addresses of numerous retailers. France & England thus determine – for the first time – that one of its labor and employment clients is a wholesale purchaser-retail seller of Rodent’s trap. Should France & England be disqualified from representing Fanciful on these facts? If not, are there any limitations on France & England’s continued representation of Fanciful?

RG 05.15_RG 09.05 5/21/15 9:27 AM Page 25

Become an Indiana Registered Paralegal

The movement toward paralegal registration is not a new concept in Indiana. The House of Delegates first considered paralegal registration in 2006. The 2014 proposal was for the Indiana Supreme Court to add a new Rule 9 to the Rules of Professional Conduct, with administration of the program to be delegated to the ISBA. In December the Supreme Court declined to adopt a rule at this time but indicated that it saw nothing that would prevent the ISBA from creating and administering a paralegal registration program.

duties at least 70 percent of the time. Substantive legal work is defined as work for which an attorney is ultimately responsible, and absent such paralegal, the attorney would perform the task. 2. Affiliate Member of ISBA in good standing for 3 consecutive years (current paralegal Affiliate Members have met the requirements and are therefore prequalified). Or 3. One of the following: • Bachelor’s Degree with a minimum of 12 hours of undergraduate credit in law or paralegal studies from an institutionally accredited paralegal program; • Bachelor’s Degree and a Paralegal Certificate from an institutionally accredited paralegal program; • Bachelor’s Degree from an institutionally accredited program

plus at least 2 years of paralegal experience; • Associate’s Degree in paralegal studies from an institutionally accredited paralegal program plus at least 2 years of paralegal experience; • Certification in paralegal studies from an institutionally accredited paralegal program plus at least 2 years of paralegal experience; • Paralegal Advanced Competency Exam (PACE) (as offered by the National Federation of Paralegal Associations) and is in good standing; • Paralegal CORE Competency Exam (PCCE) (as offered by the National Federation of Paralegal Associations) and is in good standing; • Certified Legal Assistant/ Certified Paralegal (CLA/CP) certification (as offered by



pread the word – Indiana Registered Paralegal status is coming! The ISBA Affiliate Membership Committee is pleased to announce that the State Bar has adopted a voluntary paralegal registration program. The ISBA House of Delegates approved paralegal registration at its annual meeting last October, and in March the Board of Governors approved the program with a target implementation date of July 1.

(continued on page 26)

An applicant seeking the State Bar’s Registered Paralegal status must be a member in good standing of the ISBA and meet certain education or credential criteria. Upon approval, the paralegal will become an Indiana Registered Paralegal and identify said status with the initials IRP following his or her name. The following are requirements for the IRP status: 1. Currently employed as a Paralegal: Paralegals are those persons, regardless of job title or classification, who are employed by a lawyer, law office, government agency or other entity in Indiana and working under the direction of an attorney in a capacity that involves the performance of substantive legal work that usually requires knowledge of legal concepts, and who perform those RES GESTÆ • MAY 2015


RG 05.15_RG 09.05 5/21/15 9:27 AM Page 26

REGISTERED PARALEGALS continued from page 25 the National Association of Legal Assistants) and is in good standing. To maintain the IRP status, there is a CLE requirement consisting of 18 hours of substantive CLE, 3 hours of which is an Ethics Component, over a 3-year period. A minimum of 6 hours of CLE, of which 1 hour must be an

Ethics Component, is required per year. More good news! From July 1, 2015, through July 1, 2017, the Indiana State Bar is reopening its grandparent provision for paralegal membership in the ISBA. This grandparent provision enables paralegals to apply for membership with a waiver from the educational

or testing requirements. To qualify for the waiver for ISBA membership, the applicant needs work experience consisting of not less than 70 percent of substantive legal work performed for a minimum of 3 years of the previous 7 years in the employ of an attorney, law office, corporation, government agency or other entity while performing specifically delegated substantive legal work for which an attorney is ultimately responsible, and absent such paralegal, the attorney would perform the task. An attorney affidavit of work experience must be attached to the application for membership. The Affiliate Membership Committee is extremely excited about this new chapter in the development of the paralegal profession in Indiana. For paralegals who aspire to a higher goal, the Indiana Registered Paralegal status will both recognize and convey a person’s commitment to competence with the emphasis on professional education and minimum standards for the profession. Stay tuned for additional information from the Affiliate Membership Committee.

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March Against Hunger food drive winners

• Sole Proprietor – Steven Douglas Law Office, Ellettsville ($1,170 monetary donations) • Small Firm (2-11 persons) – Wilson Kehoe Winingham, Indianapolis ($1,180 monetary donations; 191 pounds of food) • Medium Firm (12-21 persons) – Wilkinson Goeller Modesitt Wilkinson & Drummy, Terre Haute ($2,445 monetary donations)

• Large Firm (22-49 persons) – Burke Costanza & Carberry, Merrillville ($4,302.70 monetary donations; 257 pounds of food) • X-Large Firm (50+ persons) – Barnes & Thornburg, Indianapolis, Fort Wayne, South Bend & Elkhart offices ($13,670 monetary donations; 417 pounds of food) • Public/Non-Profit/Local Bar – Vanderburgh Co. Prosecutor’s Office, Evansville ($3,000 monetary donations; 1,690 pounds of food) “The lawyers in Indiana have always championed the March Against Hunger food drive competition, and this year was no exception, raising more monetary donations and nonperishable food items than in previous years,” ISBA President Jeff R. Hawkins said. “I know that helping others is an emotionally rewarding

experience, and I’m proud of my profession’s participation.” This year’s March Against Hunger food drive competition took place March 1-31 and included 39 participants statewide, generating 10,105 pounds of food and $50,228.20 in monetary donations. Since 2009, the food drive has generated a total of 62,459 pounds of food and $282,027.91 in monetary donations for Indiana food banks.


he ISBA Service Committee, in coordination with the Office of Indiana Attorney General and Feeding Indiana’s Hungry (FIsH), recently announced the winners of this year’s March Against Hunger food drive competition. Winners from each of the following six divisions will receive the “Attorney General’s Cup” trophy at local recognition events:


“The March Against Hunger is a great tradition that inspires a culture of serving and giving back that helps put food on the table for many struggling families in our state,” Indiana Attorney General Greg Zoeller said. “Thank you to the State Bar and law firms – big and small – that make this effort (continued on page 28)

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FOOD DRIVE continued from page 27 a priority and help grow this program year after year. Your generosity makes our Hoosier communities stronger.”

Thanks to our 2015 March Against Hunger participants!

“We are grateful for the participation and generosity of so many attorneys as well as for the leadership of Attorney General Zoeller and the Indiana State Bar Association to raise awareness of hunger,” FIsH Executive Director Emily Weikert Bryant said. “Our food banks are serving one in six Hoosiers who are at risk of hunger; that’s more than 1 million people. The food and funds contributed though the March Against Hunger drive this year will provide much-needed assistance to those in our communities who continue to struggle with hunger.”

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By Michael J. Helms, DPM

Staying fit and motivated while injured

Here are my top tips for staying motivated and fit when you are injured.

1. Don’t stop moving Unfortunately, we lose fitness rather rapidly when we stop exercising entirely. After seven days with no exercise, your total blood volume can decrease by up to 12 percent, making your heart work harder to accomplish less. After just four weeks without aerobic exercise, your VO2 max (the maximum amount of oxygen your body can utilize during one minute and an important overall measure of aerobic fitness) will diminish by up to 20 percent. After two to three months of no aerobic exercise, your heart muscle thickness will be reduced by up to 25 percent, thus significantly decreasing its efficiency. And even if you manage to maintain your weight through reduced calorie consumption while not exercising, you will have actually increased your body fat composition as your body will replace lost

Fit to Practice muscle mass with increased adipose tissue. Fortunately, this loss of fitness is not inevitable. With a solid plan and the right motivation, you can stay fit.

2. Use the power of habit A paper published by a Duke University researcher in 2006 found that more than 40 percent of the actions people perform each day weren’t actual decisions, but habits. Use the power of habit to stay fit. For instance, devote to cross training the time slots you previously devoted to running. Start by making a commitment that even though you cannot run, you will

continue to use the time you were running as time for exercise. If you allow yourself a week or more of no exercise, you are likely going to find it more difficult to reestablish your previous exercise habits. Even during your first week of injury recovery, it is important to continue exercising at the same time you are accustomed to working out.

3. Cross train



have been a podiatrist in the Indianapolis area for more than 25 years. A significant part of my practice is working with runners and other active people, helping them overcome running and aerobic exercise-related injuries. Unfortunately, part of injury recovery often involves periods of time without being able to perform your desired form of exercise. For many people, once they are unable to run or participate in their preferred form of exercise, it is extremely difficult for them to maintain the motivation needed to stay fit during the recovery process. I want to share with you some of the things that I have learned over the years that might help you stay motivated and fit even if you are unable to continue with your normal exercise routine.

You can maintain a high degree of fitness by cross training, but how do you determine which cross training is appropriate and which activities should be avoided so as not to slow your injury recovery? For most running injuries, riding a bike and swimming can allow you to get in a full workout without interfering with your injury recovery. However, it is best to consult a sports medicine specialist to learn the most appropriate cross-training strategy during your injury recovIndy Podiatry ery. I have included a Indianapolis, Ind. sidebar at page 31 with some general suggestions. michaelhelms.dpm @gmail.com

(continued on page 30)

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FIT TO PRACTICE continued from page 29 4. Improve your core strength

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Your core consists of all the muscles from your upper chest down to just above your knees. Having a weak core is a significant factor in the development of many running-related injuries. If your core is weak, you are at higher risk for developing injuries no matter what your normal exercise activity is. Strengthening your core is also part of the treatment for many exercise-related injuries. So, if you have not been including core strengthening in your exercise routine, the time spent recovering from your injury represents an ideal time to establish core strengthening as a habit. If you already do core strengthening, this time can be spent making your core even stronger and reducing re-injury risk in the future. Where do you start if you have not been working your core? If you belong to a gym, arrange a session or two with a personal trainer to learn a core exercise routine. On my website, indypodiatry.com, there is a video demonstrating a core-strengthening program. If you search online for core routines, be careful, as many programs I’ve seen are far too intense for people who have not been regularly engaging in core strengthening exercises. As with any exercise, doing too much too soon can cause injuries.

5. Utilize your social network

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Are you accustomed to running with friends or working out with a group on certain days? Ask them to cross train with you. If you met a friend for a run once or twice weekly, ask him or her to meet you at the gym at the same time you normally ran together. Again, this helps maintain your established exercise routines with the added

benefit of continuing social connections that often serve as a motivation for keeping a consistent exercise pattern.

6. Volunteer at a running event There are races, walking events and triathlons throughout the calendar year. These events often serve charitable purposes, and they are always in need of volunteers to allow the events to function smoothly. For runners, volunteering allows you an opportunity to give something back to running while helping you feel connected to the running community at a time when you cannot run.

7. Make use of an anti-gravity treadmill For some injuries, you can continue to run in a limited fashion by using an anti-gravity treadmill. This machine utilizes differential air pressure to offload your body weight by amounts ranging from 20 to 100 percent. Consult your sports medicine doctor to see if this reduced weight-bearing form of running is appropriate for your injury recovery. There are multiple AlterG® machines in the greater Indianapolis area, including one at St. Vincent Sports Performance that is available on a fee-per-use basis. It can be depressing to be injured and unable to run or exercise in the way you most enjoy. However, with a little planning and self-discipline, you can hasten your recovery and even use the injury as an opportunity to increase your overall fitness and decrease your risk of future injuries.

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Cross training while injured ere are some of the more common injuries I treat and cross-training exercises I typically recommend. Please keep in mind that exercise-related injuries are often multifactorial, and it is best to consult a sports medicine specialist about the most appropriate rehab and cross-training regimen for your particular circumstances. If any of these cross-training exercises cause pain, discontinue the activity. Plantar fasciitis: cycling and spinning (as long as you stay seated throughout the workout), swimming, core strengthening and upper body weight work. Avoid weightbearing exercise such as running, walking and the elliptical.


Stress fractures of the foot: seated cycling and spinning, swimming, core strengthening and weight work sitting on a bench or using seated weight machines. Avoid weight-bearing exercise. Stress fractures of the leg (tibia or fibula): upper body weight work immediately. Consult your doctor for permission to start seated cycling and swimming, but usually after two weeks.

Patellar tendonitis: The patellar tendon is the large tendon that courses over your kneecap and inserts onto the top of your leg. You should avoid running and cycling while rehabilitating from this injury as these two activities are common causes of patellar tendonitis. Upper body weight

work and swimming are appropriate while recovering from this injury. Consult a sports medicine specialist for information on how to strengthen your leg muscles to help recover from this injury and to reduce risk of recurrence. – Michael J. Helms, DPM

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Ron A. Hobgood, Esq.

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Achilles tendonitis: seated cycling and spinning, weight work sitting on a bench or using seated weight machines and core strengthening. Avoid swimming, running, exercise walking and the elliptical as these can further aggravate the Achilles tendon. Other foot and ankle tendonitis (peroneal, extensor): Same as for the Achilles, but swimming is also acceptable.



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By Kelly A. Mroz

Meeting the legal needs of college students


emember college? A security deposit was like a boomerang – something that was supposed to come back but never did. Or how about an underage drinking citation? Time to plead guilty and beg rides from siblings or friends. No matter how big or small the legal issue, most college students never consider legal counsel. Student legal services (SLS) offices meet the unique needs of students, providing collegians with access to justice and redefining the communities they inhabit. Student legal services offices are not a new concept – the University of Illinois at UrbanaChampaign launched a program funded through Lyndon B. Johnson’s Great Society in the 1960s, and that program has existed in some iteration to the present day. These offices are not rare, either. The National Legal Aid & Defender Association (www.nlada.org) lists 98 offices in 38 states that provide some form of direct legal services for students. Most Big Ten schools, including the Hoosiers and Boilermakers, support SLS offices. While consistent in that they are legal offices designed to provide services for students at a college or university, these programs do not follow a single model. Some offices provide advice and referral only; others also offer representation. Services may be provided by contract attorneys, staff attorneys or law school clinics. The funding Kelly A. Mroz sources can be endowDirector of Student ments, general funds, Legal Services activity fees or organiDivision of Student Affairs zational fees. Yet SLS Pennsylvania State University offices retain a key University Park, Pa. mroz@psu.edu shared characteristic 32


in that services are either free or inexpensive (think health insurance co-pay) to qualifying students. Regardless of how they are structured, SLS offices do not fit the traditional profile of a legal services agency. In Reinventing the Practice of Law: Emerging Models to Enhance Affordable Legal Services, editor Luz E. Herrera notes that “[l]awyers may want to consider new outreach models and niche markets as ways to engage untapped markets with unmet legal needs.” While not in the typical mold, SLS organizations do meet unmet legal needs and align with the three prongs of the U. S. Department of Justice Access to Justice Initiative (www.justice.gov/atj): promoting accessibility, ensuring fairness and increasing efficiency.

Promoting accessibility For college students, there are enormous barriers to legal services. Money and transportation are common problems. A Purdue student noted about his university’s SLS office in a 2013 survey, “This service was SO helpful. There was no way I could afford an attorney on my own and would have gone into my court date blind if not for this service. I never thought I would be going to court or would need a service like this, but I am so glad this service was available to me.” There are less obvious barriers as well – these first-time users of the judicial system are unfamiliar with the process of finding an attorney. Another Purdue University student, responding to the survey, said, “Such a useful resource! I needed help with my lease and landlord, and I would not have know where else to go besides here!”

Ensuring fairness Fairness is served by leveling the playing field between resourcerich businesses and resource-poor students. Students may even be unaware of what constitutes a fair result under the law. In one such case, a student from China studying at Ball State University came into her SLS with $80,000 in outstanding medical bills. She had incurred the expenses thinking that she was covered under her husband’s policy, when it had actually been canceled upon his termination from employment. She came to SLS because she had no idea what to do next. According to Ball State’s SLS managing attorney, John D. Connor, he investigated and found that her husband’s prior employer had failed to provide proper notice under COBRA regarding her right to continuing coverage. The employer paid her bills in full.

Efficiency These offices do not deal exclusively in heartwarming fact scenarios and grateful clients. They get the students who want to challenge the landlord’s charge for cleaning mojito stains from the carpet; the students who think getting out of a lease just means telling the landlord they’ve changed their minds; the ones who are certain it is a defense that the one hitter they were holding was really their roommate’s. Justice is still served in these cases because there is an inherent efficiency in legal representation. SLS attorneys advise students when claims lack merit, adjust expectations for outcomes, negotiate resolutions outside of court and provide representation in hearings. Not only do SLS organizations fulfill the vision of access to justice, they are serving a population with an acute need for these services.

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Criminal convictions can have a profound impact on college students as they dive into a stagnant job market. Despite improvements in national unemployment rates from recession highs of more than 9 percent to the current rate of 5.6 percent, the trend is largely attributable to increases in low-income jobs. According to an analysis conducted by the National Employment Law Project (www.nelp.org), mid- and highincome positions have not recovered at the same rate as low-income jobs, such that there were 2 million fewer jobs in 2014 desirable to college grads than there were in 2008. As college students compete for these scarce jobs, a criminal record will be no secret to a prospective employer. In a 2010 survey conducted by the Society for Human Resource Management (www.shrm.org), 92 percent of their members conducted background checks on prospective employees. This profound impact is evident in a case where a student was charged with a felony – a small-time marijuana case in the heyday of tough drug sentences. The director of Michigan’s SLS office, Douglas E. Lewis, recalls that he was able to work out a deal that resulted in dismissal of the charges and a sealed record, thus enabling the student to leave college with a clean slate. Lewis received an update five years later: The student had graduated, gotten a job with a large corporation, and married and celebrated the birth of his first child. Imagine the differences in that student’s life five years out if he had been convicted and served jail time. Of concern is not just the longevity but also the immediacy of the impact of legal issues in the college population. In a 2009 Associated Press and mtvU (the MTV college network) survey,

85 percent of college students reported feeling stressed in their daily lives. When legal woes arise, this stress can quickly turn into a crisis. In one case, a veteran suffering from post-deployment psychological stresses went to an emergency room seeking mental health treatment. He was living out of his car and barely meeting basic expenses, so the resulting $3,000 bill only made his condition worse. The director of Texas State University’s SLS, Shannon M. FitzPatrick, recounts that her office was able to work with both the hospital and physicians’ group, and both entities wrote off 100 percent of the charges a few days before Christmas. The veteran contacted the SLS office

a year later to say thanks and that without its help, the past Christmas might have been his last. Instead, he connected with veterans’ support groups, and his life is moving in a positive direction. The impact of a student legal services office transcends the individual cases as these offices are able to effectuate lasting change in the surrounding communities. Most notable is the relationship between the students and landlords. Judy A. Williams joined Montana State University Billings as a student legal services attorney in February 2005 and was awash in student complaints about landlords’ eviction and security deposit practices. She pursued those cases that had merit and said, “By April the landlords were taking notice; in May they asked me to talk to them. By the end of the following fall, the landlord-tenant complaints were way down, and often a quick letter from me resolved the issue.” Despite their value, these offices are far from universal. Twelve states have no programs at all, and only five states boast four or more institutions with SLS offices. Indiana falls in the middle with programs at Ball State, Indiana University and Purdue. As part of the legal profession’s commitment to access to justice, consider ways you can help your alma mater or local university create, maintain or expand legal services for students – because you remember college and how easy it was to stay out until 4 a.m. and how the ability to chug Milwaukee’s Best was as highly prized as a complete set of notes from Art History 101. Ah, college. Those were the days. Too bad there’s no way to get that security deposit back now. A version of this article first appeared in the January/February edition of The Pennsylvania Lawyer.



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By Maggie L. Smith and Abigail T. Rom

Appellate civil case law update

SUPREME COURT DECISIONS Divided Court holds that Indiana Civil Rights Commission’s jurisdiction over retaliation claims must relate to underlying unlawful discrimination claim that falls within enumerated criteria in I.C. §22-9-1-3(1) The Indiana Civil Rights Law confers enforcement powers to the Indiana Civil Rights Commission (the “Commission”) in response to incidents where a person has “engaged in an unlawful discriminatory practice.” Ind. Code §229-1-6(j). To be “unlawful,” the discriminatory practice must relate to enumerated criteria, which includes education. I.C. §22-9-1-3(1). Fishers Adolescent Catholic Enrichment Society, Inc. (“FACES”) is an organization formed to provide homeschooled high schoolers with Catholic educational, spiritual and social enrichment. In 2008, FACES held an All Souls’ Day Masquerade Ball consisting of a dinner-dance event for its member students. One member student who planned to attend had a serious food allergy, and her mother requested that FACES provided a special dietary accommodation at the event. FACES refused upon multiple requests. The mother filed a complaint with the Commission, alleging FACES refused a reasonable accommodation and therefore discriminated against her daughter. Before the event took place, the mother

secured a dietary accommodation from the event venue directly. The daughter attended the event without incident, but she and her family were expelled from FACES four days later. The mother then filed a retaliation claim with the Commission. Ultimately, the Commission found that FACES had an educational purpose and retaliated against the family in violation of state law. In Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater ex rel. Bridgewater, 23 N.E.3d 1 (Ind. 2015) (Rucker, J., dissenting), a divided court determined that a religious and social event did not relate to education, and therefore the Commission did not have jurisdiction over the complaint. In reaching its decision, the majority noted that there was no dispute that education was a stated purpose of FACES; however, the specific act of unlawful discrimination occurred at a “quasi-religious social function, not an educational one.” Id. at 4. The majority reasoned that a broader interpretation “would eviscerate the function of ‘related to education’ as a legislative prerequisite for the Commission’s enforcement powers.” Id. The majority held that because the family’s retaliation claim was predicated on a disability discrimination claim “not related to education and thus … outside the Commission’s enforcement powers, the derivative retaliatory discrimination claim [was] also beyond the Commission’s authority to impose any remedial sanctions against FACES.” Id. at 5. The majority reasoned that finding otherwise would “invite and incentivize the intimidating technique of bootstrapping a retaliation claim onto a meritless complaint alleging discrimination not subject to the Law.” Id.

In dissent, Justice Rucker disagreed with the majority that “retaliation is only a ‘discriminatory practice’ when it is committed in response to the filing of a meritorious complaint with the Commission.” Id. at 6 (emphasis in original). Rather, Justice Rucker examined Indiana statutory authority and federal retaliation law and opined that “retaliation under the Act is a separate act of discrimination regardless of the outcome on the merits of the underlying complaint.” Id. at 7. Justice Rucker concluded that “the majority rewrites Indiana’s Civil Rights Act, places an untenable burden on the Commission, and along the way ignores without explanation relevant federal precedent. I therefore cannot join its opinion.” Id.



n January, the Indiana Supreme Court issued two civil opinions and granted transfer in one civil case. The Indiana Court of Appeals issued 17 published civil opinions. The full texts of these opinions are available via Casemaker at www.inbar.org.

In matter of first impression, unanimous Indiana Supreme Court holds that ‘value’ that triggers secondary liability under I.C. §22-3-2-14(b) may include value of other property transferred in connection with performance Maggie L. Smith of services Frost Brown Todd

The Indiana Indianapolis, Ind. Worker’s Compensation mlsmith@fbtlaw.com Act (the “Act”) imposes liability on a person who hires a contractor without verifying the contractor carries worker’s compensation insurance to the same extent as the contractor for the injury or death of any of the contractor’s employees, but only if the value of the work exceeds $1,000. See Ind. Code §22-3-2-14(b). Abigail T. Rom Frost Brown Todd

(continued on page 36) Indianapolis, Ind. arom@fbtlaw.com RES GESTÆ • MAY 2015


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RECENT DECISIONS 1/15 continued from page 35 In 2009, a wholesale greenhouse hired a tree extraction contractor to remove a large tree at its business. The contractor quoted a price of $600 for the job, but the contractor was permitted to keep the wood he removed, which the contractor intended to sell as firewood. The contractor hired a subcontractor to remove the tree. While completing the job,


the subcontractor fell and was rendered a paraplegic. In Young v. Hood’s Garden, Inc., 24 N.E.3d 421 (Ind. 2015), the Indiana Supreme Court considered, as a matter of first impression, whether the limit of $1,000 in Indiana Code section 22-3-2-14 included only the cash value of the work performed or the value of



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other property transferred in connection with the performance of services. A unanimous Court held that the Act includes the value of other property transferred in connection with the performance of services. In reaching its decision, the Court noted that the legislative intent of Section 14(b) of the Act is to “enhance the availability of worker’s compensation benefits for workers injured during their employment with employers not providing such coverage.” Id. at 425. It concluded that “[t]his legislative objective is best served by interpreting Section 14(b) to trigger secondary liability for worker’s compensation benefits at the lowest threshold, that is by permitting the $1,000 trigger to be satisfied by both direct monetary payment as well as any ancillary consideration received by the employer for the work.” Id.

TRANSFER DISPOSITIONS The Indiana Supreme Court granted transfer in the following civil case, with an opinion to follow at a later date: Bogner v. Bogner, 16 N.E.3d 1031 (Ind. Ct. App. 2015) (Pyle, J.), transfer granted Jan. 15 (dealing with child support obligations).

SELECTED COURT OF APPEALS DECISIONS Unanimous Court of Appeals rejects constitutional challenge to limits on State’s aggregate tort liability in State Fair stage collapse case

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Severe weather led a stage roof to collapse before a concert at the Indiana State Fair, which injured or killed 65 persons. The victims sued the State of Indiana, the Indiana State Fair Commission, the Indiana State Police and various private entities. The Indiana Code provides

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that the combined aggregate liability of all governmental entities and of all public employees is capped at $5 million for injury to or death of all persons in that occurrence. The $5 million limit was made available to settle the 65 victims’ claims, and the plaintiff was the only claimant who did not settle, rejecting the $1,690 she was offered. A year later, the legislature made available an additional $6 million to compensate the victims, but it specified that the money was available only to victims who had already released the State from liability and therefore the plaintiff was not eligible for any of that money either. The plaintiff argued the limits on the State’s aggregate tort liability, as applied to her, violated the Indiana Constitution’s open courts and equal privileges guarantees. A unanimous Court of Appeals in VanDam Estate v. Mid-Am. Sound, 25 N.E.3d 165 (Ind. Ct. App. 2015) (May, J.), disagreed. With regard to the open courts clause, the court explained, “The constitution does not preclude the General Assembly from modifying or eliminating a common law tort, but Section 12 requires legislation that deprives a person of a complete tort remedy must be a rational means to achieve a legitimate legislative goal.” The court then concluded, “The aggregate liability cap is a rational means to achieve the legitimate legislative goal of protecting the public treasury.” The court also rejected the equal privileges and immunities argument, finding that the aggregate cap in the ITCA bears “a rational relationship to the legislative goal of protecting the public treasury against unlimited tort liability. The ITCA’s aggregate cap does not classify tort victims, but only occurrences, and the legislature may properly decide that occurrences that generate over $5 million in

liability place too great a burden on the treasury.”

Other COA decisions • “In its February 22 Order, the Hamilton Superior Court noted that R. Myers was liable for attorneys’ fees ‘under the terms of the Promissory Note and Asset Purchase Agreement,’ and it awarded attorney fees in the amount of $50,804.08, which it deemed ‘reasonable due to the facts and circumstances of the case.’ Appellant’s Appendix at 30. This amount was factored into the overall damage award of $86,595.43, which the court awarded to Adpoint. Thus, the court ordered that R. Myers reimburse Adpoint for certain reasonable attorney fees incurred by Adpoint during the Underlying Litigation pursuant to the terms of the Promissory Note and Asset Purchase Agreement. It did not, however, consider the total amount Adpoint owed to TBV for services rendered under the contract between Adpoint and TBV. Accordingly, we find that both issue preclusion and claim preclusion are inapplicable to the counts raised in TBV’s complaint.” Thrasher, Buschmann, & Voelkel, P.C. v. Adpoint Inc., 24 N.E.3d 487 (Ind. Ct. App. 2015) (Brown, J.). • “In this case, the trial court ordered that Grandparents receive structured and unsupervised visitation … [in an amount that] totals approximately 79 days per year, which is … very similar to the parenting time schedule a noncustodial parent would have. … Accordingly, we conclude that the trial court abused its discretion in its determination of the amount of visitation Grandparents would receive. We remand for the trial court to establish a visitation schedule that allows Grandparents ‘occasional, temporary visitation that does not substantially infringe on’

Father’s right to control L.W.’s ‘upbringing, education, and religious training.’” In Re the Visitation of L-A.D.W; R.W. v. M.D. and W.D., 24 N.E.3d 500 (Ind. Ct. App. 2015) (Pyle, J.). • “[W]e observe that as a general matter, the Amended Ordinance eliminated virtually every purpose for which the Ordinance was originally created … . In other words, we agree with the trial court’s characterization of the Commissioners’ treatment of the Ordinance: they ‘gutted’ it. Thus, the inescapable conclusion is that the ‘amendment’ the Commissioners made to the Ordinance was so extreme and farreaching as to amount to a de facto dissolution of the Ordinance, in contravention of both Section 368-11-24 and Gaudin, 921 N.E.2d 895.” Anderson v. Gaudin, 24 N.E.3d 479 (Ind. Ct. App. 2015) (Vaidik, C.J.). • “In this case four medical professionals examined B.M. and concluded that B.M. suffers from mental illness. B.M.’s mental illness causes him to be delusional, psychotic, hostile, upset, angry, and threatening. During his emergency detention at the Hospital, B.M. had to be placed in restraints and fought with Hospital staff on several occasions. And B.M. does not believe that he is mentally ill and refuses to take his medication. Dr. Griffith opined that B.M. is dangerous and as a result of his psychiatric disorder, B.M. ‘presents a substantial risk that he’ will harm others … . For all of these reasons, we conclude that the trial court’s finding that B.M. is a danger to others is supported by sufficient evidence. We therefore affirm the trial court’s order of commitment.” B.M. v. Indiana Univ. Health, 24 N.E.3d 969 (Ind. Ct. App. 2015) (Mathias, J.).



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By Jack Kenney

Synthetic drugs, accomplice testimony, other holdings

Accomplice liability instruction for attempted murder constituted fundamental error To convict a person as an accomplice to attempted murder, the person must have the specific intent that the killing occur. And juries must be instructed that an accomplice to attempted murder must act with the specific intent to kill – the normal accomplice jury instruction is not adequate. See, e.g., Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000). Addressing an issue of first impression, the Indiana Supreme Court recently held that the specific intent to kill instruction is required even in cases where it is unknown if the defendant was convicted of attempted murder on the basis of accomplice liability or direct liability. Rosales v. State, 23 N.E.3d 8 (Ind. 2015). In Ruben Rosales’ attempted murder trial, the State argued both theories of liability. His charge “was not explicitly premised on a theory of accomplice liability,” but instead of telling the jury that an accomplice to attempted murder must act with the specific intent to kill, the trial court told the jury an accomplice is someone “who knowingly or intentionally aids, induces or causes another person to commit an offense.” Id. at 10-11. The Court concluded this instruction was fundamentally erroneous because it failed to say the State must prove Rosales acted with the specific intent to kill when he knowingly

or intentionally aided, induced or caused his accomplice to attempt murder. The State compounded this error by repeatedly insisting during closing argument that specific intent to kill was not required for accomplice liability to attempted murder. Id. at 9. Thus, the Court reversed Rosales’ conviction and remanded for a new trial.

No double jeopardy where jury hung on greater charges, judge withheld judgment on lesser convictions and ordered retrial In Cleary v. State, 23 N.E.3d 664 (Ind. 2015), a defendant’s double jeopardy rights were not violated by retrial when the trial court refused to enter a previous jury conviction on lesser included offenses into judgment. The jury in Cleary’s first trial was deadlocked on felony charges of driving while intoxicated causing death, but found Cleary guilty of misdemeanor charges. Indiana’s implied acquittal provision, Ind. Code §3541-4-3(a), does not apply when the jury returns a guilty verdict on a lesser-included offense but deadlocks on the greater charge. Id. at 670. Because the jury affirmatively deadlocked on the greater offense in Cleary’s first trial rather than remaining silent on those counts, Ind. Code §35-38-1-1 did not require a judgment of conviction to be entered on the lesser offenses, and the implied acquittal provision was not implicated. Id. at 670-72 (following Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005)). Despite Garrett v. State, 992 N.E.2d 710 (Ind. 2013), which broadened the application of Indiana’s double jeopardy prohibitions, the Court rejected Cleary’s argument that Indiana’s double jeopardy clause barred retrial after the guilty verdict on the lesser misdemeanor offenses. Cleary’s second

trial on the greater offenses that deadlocked the first jury was “simply a continuation of the jeopardy.” Cleary, 23 N.E.3d at 674.

Synthetic drugs – vagueness A criminal statute may be invalidated for vagueness if it fails to provide notice enabling ordinary people to understand the conduct that it prohibits. In two recent cases, the Indiana Court of Appeals held that the statutes making possession and dealing of a synthetic drug crimes are unconstitutionally vague when the synthetic drug alleged is not listed in the Indiana Code and can only be found in the Pharmacy Board Regulations. See Ashfaque v. State, 25 N.E.3d 183 (Ind. Ct. App. 2015) and Tiplick v. State, 25 N.E.3d 190 (Ind. Ct. App. 2015). The defendants were charged with Class D felony dealing in a synthetic drug and Class D felony possession of a synthetic drug, alleged to be XLR11. The statutes in effect at the time of the defendants’ offense listed more than 60 specific chemical compounds under the definition of synthetic drug and included 11 sections regarding compounds “structurally derived” from other chemicals. Further, it included “[a]ny compound determined to be a synthetic drug by rule adopted” by the Pharmacy Board. Ashfaque, 25 N.E.3d at 186. XLR11 is not listed in the statutes, but rather declared a “synthetic substance” by the Pharmacy Board Emergency Rule. Id. at 187. The Court of Jack Kenney Appeals concluded Director of Research that the linguistic confu& Publications sion between “synthetic Indiana Public drug” and “synthetic Defender Council substance” only adds Indianapolis, Ind. (continued on page 40)



n January, the Indiana Supreme Court issued opinions on attempted-murder jury instructions and double-jeopardy claims after retrial, while the Court of Appeals addressed vagueness challenges to Indiana’s synthetic drug statute, fruit of the poisonous tree, sentences based on disagreement with jury verdicts and warrantless strip searches.




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CRIMINAL JUSTICE NOTES 1/15 continued from page 39 to the vagueness of this statutory scheme. To require citizens to “meticulously weave through the labyrinth of criminal statutes, administrative code provisions, and not-yet-codified agency rules is inconsistent with the ‘process’ our Founding Fathers believed we were due before being charged with criminal offenses.” Id. As such, the court held that the statutes, as applied to the defendants, were unconstitutionally vague and the denial of their motions to dismiss was an abuse of discretion. In so holding, both opinions distinguished Kaur v. State, 987 N.E.2d 164 (Ind. Ct. App. 2013) and Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014), because those cases did not deal with synthetic drugs identified only by the Pharmacy Board Emergency Rules. Id. at 188. Chief Judge Vaidik dissented from the majority opinion in Ashfaque, expressing her belief that the statutes are not too complex or overly broad. In addition, she agreed with Judge Bailey’s dissenting opinion in Tiplick that the majority opinion permits ignorance

of the law to be a defense. Tiplick, 25 N.E.3d at 197.

Accomplice’s testimony inadmissible as fruit of poisonous tree In N.S. v. State, 25 N.E.3d 198 (Ind. Ct. App. 2015), the trial court abused its discretion in admitting marijuana and a gun found in a backpack as well as an accomplice’s testimony establishing N.S.’s possession of the contraband because both the physical evidence and the accomplice’s statement were fruits of an illegal search. Further, there was no source independent of the illegal search for the accomplice’s statement. After locating a stolen car at a gas station, a police officer arrested D.M. (the accomplice) and N.S., who sat in the back seat next to a backpack. The officer searched the backpack and found the contraband. The trial court initially suppressed the contraband and testimony, but later admitted the evidence after letting D.M. testify that before he and N.S. stole the car, (1) he saw marijuana in N.S.’s backpack, and (2) he and N.S.

broke into another car from which N.S. stole a pistol, which he put in his backpack. Id. at 201. The trial court found N.S. committed acts that would be Dangerous Possession of a Firearm and Possession of Marijuana if committed by an adult. The State conceded that the marijuana and the gun were obtained through an illegal search and thus were inadmissible. The court concluded that D.M.’s testimony was likewise inadmissible. While D.M.’s knowledge about N.S.’s possession of the contraband came from a source independent of the illegal search, the police did not have a source independent of the illegal search for their knowledge about the contents of the backpack. Id. at 201-02. Citing Clark v. State, 994 N.E.2d 252 (Ind. 2013), the court reversed N.S.’s delinquency adjudication.

Sentencing discretion – court’s disagreement with jury verdict A defendant must be sentenced based on the crime for which he was found guilty. The Indiana Supreme Court has repeatedly found an abuse of discretion where the trial court made a statement at the sentencing hearing expressing disagreement with the jury’s decision to acquit the defendant of a greater offense. See, e.g., Gambill v. State, 436 N.E.2d 301 (Ind. 1982); Hammons v. State, 493 N.E.2d 1250 (Ind. 1986). However, this rule does not apply to charges dismissed pursuant to a guilty plea. See Bethea v. State, 983 N.E.2d 1134 (Ind. 2013). In Phelps v. State, 24 N.E.3d 525 (Ind. Ct. App. 2015), the trial court abused its discretion when it imposed the maximum sentence for Class C felony cocaine possession after expressing disagreement with the jury’s verdict acquitting



RG 05.15_RG 09.05 5/21/15 9:27 AM Page 41

Corey Phelps of a Class A felony dealing charge. At sentencing, the trial court expressly disagreed with the verdict and said that Phelps’ attorneys “did a really good job” of confusing the jury. Id. at 527. The trial court then sentenced Phelps to the maximum of eight years. Although the presence of valid aggravating circumstances such as Phelps’ criminal history and probation violations would otherwise justify an enhanced sentence, this “does not wash away the stain left by [the] trial court’s blatant disagreement” with the jury’s not-guilty verdict on the greater charge, rendering the maximum sentence “a suspect enhancement.” Id. at 528-29. Thus, the court revised Phelps’ sentence to six years in the Department of Correction. Id. at 529.

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Strong smell of marijuana justified warrantless strip search incident to arrest In White v. State, 25 N.E.3d 107 (Ind. Ct. App. 2015), a strip search of Michael White at the Marion County Arrestee Processing Center following his lawful arrest for leaving the scene of an accident did not violate his Fourth Amendment rights. Although his underlying arrest constituted a misdemeanor, the strip search was justified because of the police officers’ “reasonable suspicion that weapons or contraband would be introduced into the jail due to the lingering odor of raw marijuana which engulfed White” even after having been transported to the jail. Id. at 540-41 (citing Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014)) (noting that odor of raw marijuana indicates that it has not been smoked and therefore still may be in the defendant’s possession).

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RG 05.15_RG 09.05 5/21/15 9:27 AM Page 42

FAIR COMMENT continued from page 46 5. Having ‘under the table’ agreements with chiropractors, pain doctors, etc., for referrals

2. Requesting or subpoenaing all of plaintiff ’s medical records dating back more than 10 years

I hesitate to even mention this issue because I hope it’s not true. As I have tried to emphasize in this article, I highly respect the overwhelming majority of my colleagues on the other side of the courtroom and believe that they ethically and fully represent their clients. As I am not an ethics expert, I will not speculate whether these “referral agreements or arrangements” are ethical or legal. All I know is that they smell bad. As my ethics professor told me, if it smells bad, don’t do it. Every time such an arrangement is discovered, whether ethical, valid or not, it calls into question everything about that client’s treatment and case. Again, I am not judging whether these agreements/arrangements are ethical or valid, I am just emphasizing that they do not smell good and they do not help your credibility or your client’s case.

Obviously, if you believe my client has a preexisting injury, you’re going to want to get the medical records to demonstrate that. But do you really need my client’s gynecological records from when she was 15? What does that have to do with her neck injury that she suffered when she was 39? Even medical records from a family doctor aren’t particularly persuasive in showing a preexisting injury if they’re more than 10 years old. As a practical matter, most of us have complained about back pain or neck pain to our doctors at one point in our life. I think you would be hard-pressed to find anyone who hasn’t injured those parts of their body at some point or another. However, complaining to your family doctor about a backache 20 years ago doesn’t mean that you didn’t suffer an injury to your back when you were rear-ended last year. Be reasonable with these requests.

What drives me crazy about defense lawyers? 1. Acting like it’s your money Even though we’ve sued your client as an individual, we know that usually an insurance carrier is involved. It’s the insurance carrier who will ultimately pay any settlement or judgment that comes out of the case. So, there’s really no need to act like you are going to be writing the check. The money isn’t coming out of your bank account. You’re not going to have to cancel your family vacation to Florida because you have to pay my client $15,000 for his personal injury claim. Don’t make it personal. This is business, and insurance companies are in the business of paying these claims.



3. Taking unnecessarily long depositions In preparing my clients for their depositions, I always explain to them that by filing a lawsuit they open up their lives to scrutiny by the other side. I try to tell them that they’re going to be asked about things that they wouldn’t dream would be relevant to the car wreck that is the subject of the lawsuit, but they will be expected to answer these questions. I tell them that their deposition will probably take an hour and a half to two hours. Unfortunately, when questions about their employment history dating back to their first job in high school come up, my time estimate goes out the window. I understand that the plaintiff’s deposition is the defense attorney’s one shot

at talking to my client, and so he or she will want to be as thorough as possible during questioning. However, six hours of asking my client about everything from prior car wrecks to homeowner’s insurance claims is a bit excessive.

4. Unnecessary motions, e.g., discovery motions, summary judgment, etc. I try my best to answer discovery requests within the timeframe allotted by the Indiana Trial Rules. If it looks like I’m not going to be able to get my responses finished on time, I will ask for an extension. The flipside of that is that I will give the same courtesy to opposing counsel if they request it. If my client’s discovery responses are overdue, and I haven’t contacted opposing counsel about an extension, chances are I’ve overlooked something or the due date hasn’t made it onto my calendar. Rather than filing a Motion to Compel Discovery, try giving me a call first. Courts don’t want to be bothered with petty discovery disputes, especially if the attorneys could resolve the matter by just talking. Additionally, not every case is appropriate for summary judgment. In fact, if it’s a negligence case, it’s more likely the case is not appropriate for summary judgment. These motions require a considerable amount of time and work – from counsel drafting and responding to the motions and from courts holding hearings and drafting findings of fact and conclusions of law. It would be nice if defense attorneys would weigh these factors when deciding to file dispositive motions.

5. Unnecessary delays w/settlement checks and releases When we’ve agreed to settle a case, please just send me the settlement check and the settlement release at the same time. That way,

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my client only has to come in one time to sign all the closing paperwork. Unfortunately, what has started to happen is the settlement check doesn’t even get ordered until I send a signed settlement release back to opposing counsel. My clients have a hard time understanding why we settled at mediation three weeks ago, but they still don’t have their money. You would think once a settlement is reached, the parties would work to bring the matter to a speedy close. Unfortunately, in this situation the settlement process can take as long as, if not longer than, the actual litigation. Another problem I’ve run into lately is when I finally receive the settlement check, it has not only my client’s name and my firm’s name, but also the name of each and every lien holder on it. In some cases, they’ve even sent me separate checks made payable to every lien holder. This is particularly disturbing to me because it implies that I won’t satisfy outstanding liens without them being listed on the check or written as separate checks. I don’t have a history of failing to pay back liens, and I wouldn’t have a very long career if that was my usual practice. Perhaps some of these defense attorneys, or even their insurance carrier clients, have been burned before, and this is how they choose to handle it. However, this approach assumes I’m incompetent or, even worse, unethical. A better practice would be to address payment of the liens in the settlement release. With the exception of Medicare liens, which are handled differently, this is a sufficient way to relieve defense counsel, and their clients, of any obligation to pay back these liens.

Conclusion Attorneys, both plaintiff and defense, have an ethical duty to zealously represent their clients. But zealous representation doesn’t have to be at the expense of professional courtesy. Many of the situations we’ve discussed can be remedied with open communication between attorneys on both sides.

If you practice insurance defense or plaintiffs’ work, chances are you’re going to come up against the same attorneys over and over again. It makes working on cases a lot more enjoyable, and ultimately better for the clients, if both attorneys understand the other’s position and work together toward a resolution.



RG 05.15_RG 09.05 5/21/15 9:27 AM Page 44

Appellate courts on state case record system n May 4, the public was afforded access to appellate case information through the state court record system, Odyssey. In addition to the appellate courts, about 220 circuit, superior, city, and town courts in 51 counties use Odyssey to maintain records. In May 2014, the Supreme Court announced that the three appellate courts would move to Odyssey. Previously, records were maintained on a 28-year-old AS/400 system. In December, 3,000 Tax Court cases were moved into the new system. Now 104,000 Supreme Court and Court of Appeals cases are on Odyssey. Information in more than 16 million cases is available on the Odyssey docket through mycase.in.gov. Basic case information (hearing dates, case numbers and attorney names) is available for free. Appellate case information will also continue to be available at no cost through the appellate docket at courts.in.gov/cofc/ docket.html. For the first time, the appellate docket will also include links to opinions and orders.

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Appellate case information is available in both dockets. “Help” topics provide useful information on how to search for a case and read an appellate case docket: • Odyssey Docket – courts.in.gov/2634.htm • Appellate Docket – courts.in.gov/4076.htm

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LEGAL ASSISTANT NEEDED: North central Indiana law firm wishes to hire a legal assistant to assist in preparation and answering of discovery in civil litigation cases and to assist in the preparation of discovery to be sent out to opposing parties. All work can be done remotely with electronic access. Compensation for this part-time position will be negotiated based on experience and qualifications. Please contact sferrer@inbar.org with your interest and note "Legal Assistant Needed" in the subject line. WANTED: 3 sole practitioners interested in sharing office space in Class A building in Carmel. All services provided with an association of attorneys with an overflow of business. Terms negotiable.Please email inquiries to carmellawoffice@gmail.com.

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QDRO PREPARATION by Indiana attorney. Reasonable rates, quick turnaround, assistance at any stage of the dissolution, from discovery through plan and court approval. For information, email feightnerlawfirm@gmail.com or call 260/755-0873. INSURANCE DEFENSE & coverage. AV-rated northwest Indiana insurance defense firm with over 75 years of combined experience in insurance practice is available to work with insurance companies on coverage issues and to represent insureds in litigation throughout northern Indiana. Huelat Mack & Kreppein P.C., 450 St. John Rd., Suite 204, Michigan City, IN 46360, 219/8793253, jhuelat@hmkattorneys.com

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RG 05.15_RG 09.05 5/21/15 9:27 AM Page 46

By Amy R. Wheatley and Larry R. Church

What drives you crazy? A conversation between a plaintiffs’ lawyer and a defense lawyer FAIR COMMENT

Big Things Come From Small Firms Sponsored by the ISBA General Practice, Solo & Small Firm Section


embers of the plaintiffs’ bar and defense bar often spend more time together than either do with their own partners or even with their families. Just like most families, we often drive each other crazy. Most of these misunderstandings simply come from a failure of each to understand the motivations or needs of the other. It is hoped this article will help alleviate some of these misunderstandings and ease the attendant frustration between the two sides of the courtroom by educating each side about the other. Many of these “complaints” are completely avoidable. Further avoiding unnecessarily doing these things that drive the other side crazy will surely increase your credibility with your brothers and sisters on the other side of the courtroom and ultimately aid your clients.

What drives me crazy about plaintiffs’ lawyers? 1. Failing to provide Stanley v. Walker write-off information

Amy R. Wheatley The Law Office of Nick Stein New Albany, Ind. amy@nicksteinlaw.com

Okay, I get it – plaintiffs hate Stanley v. Walker. Plaintiffs think Stanley v. Walker is unfair and bad law. However, it is the law of the Indiana Supreme Court and must be applied in all appropriate cases. The quicker the defense receives accurate Stanley numbers, the quicker they will evaluate your case and the quicker your case moves toward resolution. Refusing to provide access to the Stanley numbers only delays the resolution, either through trial or settlement of your client’s case.

2. Failure to be adequately prepared at mediation and/or failing to adequately educate your client about his or her case

Larry R. Church McNeely Stephenson New Albany, Ind. Larry.R.Church@msth.com


This problem seems to be occurring more and more as mediation becomes the standard in the resolution of civil cases. As lawyers have become accustomed to their cases being referred to mediation and the majority of cases resolving in mediation, it seems that the level of preparation has declined. In my experience, the overwhelming majority of plaintiff lawyers are prepared for mediation, and they


aggressively and ethically pursue their client’s claim. However, when a lawyer, on either side, doesn’t know his case and hasn’t prepared his client for the mediation process, the likelihood of success is greatly diminished. This lack of potential success only heightens when a plaintiff shows up with new medicals and/or lost wages at a mediation. Unless there has been an emergency that required these records to not be promptly turned over, these will not be considered in the mediation. Further, when I am acting as a mediator, a lack of preparedness also hampers my role as a neutral since I’m having to educate the clients on issues that should have been covered before the session. Often, this creates an inaccurate thought in the minds of clients that the mediator is actually advocating the other side’s position, as they have never heard the bad facts before. Simple rule: Be as prepared as you would be if you were going to a more formal hearing. This is your best shot to resolve your case – use it!

3. Failing to properly evaluate your claim, starting off every case with a policy-limits offer This probably was repeated to me more by claims adjusters than any other complaint. If you present a policy-limits offer on a small case, then you are going to receive an equally ridiculous counteroffer, and the credibility of you and your case has likely greatly diminished. As with all of these “complaints,” I understand that you do not want to “bid against yourself,” but starting out with a number that does not pass the laugh test helps nothing. Start with a reasonable, wellthought-out demand, and you are much more likely to receive a reasonable, well-thought-out response.

4. Failing to investigate whether you have the basis for a UIM claim before automatically adding one in every case This is another complaint that claims adjusters make on a far too regular basis. Again, I understand there are some companies that refuse to provide their policy information before suit, and in that situation I personally do not think they can then reasonably complain about the inclusion of an invalid UIM claim in a complaint. However, if the information is out there and available, go get it before you file. Filing an unnecessary and inappropriate UIM claim helps nothing and harms your credibility with the insurance company and the defense lawyer who ultimately hold the checkbook on not only this case but with hope on future cases as well. (continued on page 42)

Profile for Indiana State Bar Association

Res Gestae - May 2015  

May 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - May 2015  

May 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

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