__MAIN_TEXT__
feature-image

Page 31

RESEARCH

Citing unpublished cases in Indiana: rules & caselaw By Colin E. Flora* Editor’s Note: The following article first appeared in the ISBA Young Lawyers Section’s newsletter, YLS Network, in May of 2017, and author Colin E. Flora was honored with the section’s 2017 Donald R. Lundberg Writing Award. The article has been updated for publication here.

A

nyone who has done much research has come across the perfect case that seems to be exactly what you were looking for only to notice one little problem – it is unpublished. The realities of unpublished opinions have been a part of the legal system long enough that we take for granted that they have always been. Although this piece is not meant to supplement the myriad articles calling for eradication of what some argue is an unconstitutional practice,1 a brief bit of background is in order. The origin of modern reporters stems from the year books of England that recorded decisions of the nation’s highest court from the reign of Edward II through Henry VIII.2 With the death of the year books came the privatization of law reports, which dominated the legal landscape for centuries.3 The same practice continued even with Supreme Court decisions, in the early days of this nation, as no provision was made for reporting decisions.4 As a result, the laborious and often lucrative task was taken on by private individuals such as Alexander Dallas, William Cranch and Henry Wheaton, names that still appear in citations to early decisions.5 In Indiana, notable jurist Isaac Blackford rose to international prominence with Blackford’s Reports on select decisions of the Indiana Supreme Court.6 The paucity of reporters led many “to rely on journals or annotated reporters with selected cases.”7 Things changed with John West’s creation of the National Reporter System, which sought to publish all available appellate cases.8 The growing availability of cases, long desired by some, stood in

sharp contrast to the experiences of many practitioners who were accustomed to annually reading all new cases in their jurisdiction.9 In the 1960s, complaints about the rapidly growing federal reporters and increasing volume of caselaw led federal courts to seek the creation of non-precedential decisions that would not be disseminated to reporters.10 By 1974, each federal circuit had implemented a rule governing the process.11 In federal courts, unpublished opinions remain, but Federal Rule of Appellate Procedure 32.1 removes the citation prohibition for cases decided after Jan. 1, 2007. Though readily available, citation of earlier unpublished decisions of the federal circuit courts remains a matter for local rules.12 In Indiana, the no-citation rule stems from current Appellate Rule

65(D).13 Under Rule 65(A), all decisions of the Indiana Supreme Court are to be published, and only a decision that “(1) establishes, modifies, or clarifies a rule of law; (2) criticizes existing law; or (3) involves a legal or factual issue of unique interest or substantial public importance” is to be published in the official reporter. If a decision is not published, then it is a memorandum decision and “shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.”14 Unpublished decisions comprise roughly 80 percent of all federal appellate decisions and 75 percent in Indiana.15 Importantly, just because an opinion was

(continued on page 32)

PROBATE LITIGATION Will Contests Trust Disputes & Claims Contested Guardianships

Jarrell B. Hammond jhammond@lewiswagner.com

Matthew C. Boldt mboldt@lewiswagner.com

501 INDIANA AVENUE � SU ITE 200 INDIANAPOLIS, INDIANA 4 6202- 6150 317.237.0500 800.237.0505 F:317. 630. 2790 www.Lewis Wa gne r. c om

Available as Counsel or Co-counsel in All Indiana Counties

RES GESTÆ • APRIL 2018

31

Profile for Indiana State Bar Association

Res Gestae - April 2018  

April 2018 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - April 2018  

April 2018 edition of Res Gestae, the journal of the Indiana State Bar Association

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded