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April 2014

Vol. 57, No. 8

SOUTHERN DISTRICT PROGRAMS FOR PRO SE PARTIES

ELA STATUTE OF LIMITATIONS CONRAD BAKER’S CONTRIBUTIONS TO RACIAL & GENDER EQUALITY


The Journal of the Indiana State Bar Association

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DEPARTMENTS

8 LDA AT PURDUE

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11 PRO SE PARTIES

Vol. 57, No. 8

PRESIDENT’S PERSPECTIVE Jim Dimos, Indianapolis, 2013-2014

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ETHICS CURBSTONE

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RECENT DECISIONS 1/14

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CRIMINAL JUSTICE NOTES 12/13-1/14

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VIEW FROM THE BENCH

Donald R. Lundberg, Indianapolis

Maggie L. Smith and Emily K. Cremeans, Indianapolis

Prof. Joel M Schumm, Indianapolis

Hon. Gregory J. Donat, Lafayette

F E AT U R E S 20 CONRAD BAKER 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

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SOUTHERN DISTRICT PROGRAMS FOR PRO SE PARTIES HELP LITIGANTS, ATTORNEYS & THE COURT By Hon. Tim A. Baker, Indianapolis

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ELA STATUTE OF LIMITATIONS: LEGISLATIVE RESPONSE TO COOPER INDUSTRIES By Seth M. Thomas, Indianapolis

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FORMER CHIEF JUSTICE SHEPARD ON CONRAD BAKER’S CONTRIBUTIONS TO RACIAL & GENDER EQUALITY By Hon. Randall T. Shepard and Jon B. Laramore, Indianapolis

27 YOUR OWN ECONOMY

44 CLASSIFIEDS

Cover photo of the Birch Bayh Federal Building & U.S. Courthouse in Indianapolis by Vincent Morretino

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. ©2014 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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Why pro bono?

L INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 317/639-5465 • 800/266-2581 317/266-2588 fax • isbaadmin@inbar.org http://www.inbar.org

OFFICERS President President-Elect Vice President Secretary Treasurer

James Dimos, Indianapolis Jeff R. Hawkins, Sullivan Carol M. Adinamis, Carmel Robyn M. Rucker, Valparaiso Hon. Susan Orr Henderson, Covington Counsel Steven M. Badger, to the President Indianapolis

BOARD OF GOVERNORS 1st District Scott E. Yahne, Munster 2nd District Todd A. Etzler, Valparaiso 3rd District James M. “Jay” Lewis, South Bend 4th District Martin E. Seifert, Fort Wayne 5th District Candace D. Armstrong, Brook 6th District John A. Conlon, Noblesville 7th District Seth M. Lahn, Bloomington 8th District Angela L. Freel, Evansville 9th District J. Todd Spurgeon, New Albany 10th District Wilford A. Hahn, Huntington 11th District Clayton C. Miller, Indianapolis 11th District Tonya J. Bond, Indianapolis 11th District Terry W. Tolliver, Indianapolis Past President Daniel B. Vinovich, Highland House of Delegates Jessie A. Cook, Terre Haute, Chair House of Delegates Andi M. Metzel, Indianapolis, Chair-Elect Young Lawyers Anthony M. Rose, South Bend, 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 Legislative Counsel Paje E. Felts • pfelts@inbar.org Director of Section Services Maryann O. Williams • mwilliams@inbar.org Administrative Assistant Barbara L. Mann • bmann@inbar.org CLE & Special Projects Director Cheri A. Harris • charris@inbar.org CLE & Special Projects Coordinator Christina L. Fisher • cfisher@inbar.org Local & Specialty Bar Liaison Catheryne E. Pully • cpully@inbar.org Administrative Assistant Kimberly D. Latimore • klatimore@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 Graphic Designer & Photographer Vincent Morretino • vmorretino@inbar.org

ike many referrals, this one came from an acquaintance. Mike was the patriarch of one of the more engaged families in our parish. The family’s giving of time, talent and treasure set an almost unreachable standard for generosity. And so when Mike came up to me after church one day while I was waiting for my kids to be dismissed from Sunday School and said, “Jim, I know you are a lawyer. I have a favor to ask of you,” I was more than willing to hear what Mike needed and to see if I could help, just like he had done for so many others. One of Mike’s personal ministries was to visit with prisoners. Mike shared with me that during the course of his prison visits he befriended an inmate, George. Earlier in his life, George was not a nice man. His excesses led to a life of crime that caused his marriage to fall apart and his eventual imprisonment. As Mike explained the circumstances in detail to me, I began to try and figure out in my mind what the favor may be. Or, to be candid, I was trying to figure out how to say no to Mike, as it didn’t sound like I wanted to spend any time with George. Mike went on to explain that George had an 8-year-old son from his marriage, he was entitled to visitation under the dissolution decree, and George’s ex-wife was not abiding by the decree. Mike asked whether I would be willing to represent George in enforcing the decree and compelling his ex-wife to permit the visitation. Wow, that wasn’t what I expected, but, boy, I figured I could get out of it pretty easy. I am an IP and business litigator – I know nothing about family law. Yet, as I was beginning to give my brush-off speech, a funny thing happened. My son, who was about three years younger than George’s, walked up, pulled on my arm and said, “Let’s go, Dad.” I looked at my son and daughters who had joined him and thought for a moment, and the words tumbled out, “Yes, I will talk with George and see what I can do.” And so I talked with George. And talked. And talked. As I quickly learned, prisoners enjoy the opportunity to interact with those on the outside. I learned that George’s ex-wife and son lived about four hours from where he was imprisoned. George’s ex-wife allowed their son to write George, read his letters and

talk with him occasionally on the phone. She also allowed George’s parents to have contact with their grandchild. Given the distance involved, the age of their son and the fact that George was in jail, I thought most judges would think that his ex-wife was being reasonable. However, despite my prediction that we would likely not prevail, George insisted. As it was summer, I asked one of our summer associates to research whether George’s ex-wife could be compelled to take their son to visit him in prison. It was an interesting research project for her, and she enjoyed the opportunity to work on a pro bono matter. As it turned out, despite my initial assessment, Indiana law would require George’s ex-wife to bring their son to prison to visit him. I filed our motion, scheduled and took a deposition of George (our request for George to be brought to the hearing to testify live was denied) and attended the hearing two hours away from Indianapolis. George’s ex-wife and her lawyer attended the hearing. I made our arguments, and counsel for George’s ex-wife responded as anticipated. At the end of the hearing, the judge (who I suspect will read this article with a knowing smile) just looked at me and said, “I am surprised you found a case right on point. I will take the matter under advisement.” In the end, we prevailed, and George slipped out of my life. About seven years later, I was at church, and a man with a vaguely familiar face approached me. With him was a teenage boy who clearly was his son. As I struggled to remember who this familiar person was, he reached out his hand and said, “Hi, Jim – it’s George. I want to introduce you to my son.” The matter rushed back into my memory, jogged by the fact that George’s son (continued on p. 7)

PRESIDENT’S PERSPECTIVE JIM DIMOS jdimos@fbtlaw.com 2013-2014

Receptionist Chauncey L. Lipscomb • clipscomb@inbar.org

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Public notice for appointment of new magistrate judge

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he Judicial Conference of the United States has authorized the appointment of a full-time U.S. magistrate judge for the Northern District of Indiana at the Fort Wayne division. The duties of the position are demanding and wide-ranging: conduct of most preliminary proceedings in criminal cases; trial and disposition of misdemeanor cases; conduct of various pretrial matters and evidentiary proceedings on delegation from a district judge; and trial and disposition of civil cases upon consent of the litigants. The basic jurisdiction of a U.S. magistrate judge is specified in 28 U.S.C. §636. To be qualified for appointment, an applicant must: 1. Be, and have been for at least five years, a member in good standing of the bar of the highest court of a state, the District of Columbia, the Commonwealth of Puerto Rico, the Territory of Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years (with some substitutes authorized); 2. Be competent to perform all the duties of the office; be of good moral character; be emotionally stable and mature; be committed to equal justice under the law; be in good health; be patient and courteous; and be capable of deliberation and decisiveness; 3. Be less than 70 years old; and 4. Not be related to a judge of the district court. A merit selection panel composed of attorneys and other members of the community will review all applications and recommend to the district judges in confidence the

five persons it considers best qualified. The court will make the appointment following an FBI full-field investigation and an IRS tax check of the applicant selected by the court for appointment. An affirmative effort will be made to give due consideration to all qualified applicants without regard to race, color, age (40 and over), gender, religion, national origin or disability. The current annual salary of the position is $183,172. The term of office is eight years. An application form may be obtained from www.innd. uscourts.gov or from one of the Clerk of Court offices listed below: Clerk’s Office Suite 2300 5400 Federal Plaza Hammond, IN 46320 Clerk’s Office Room 102 Robert A. Grant Courthouse 204 S. Main St. South Bend, IN 46601 Clerk’s Office 1108 E. Ross Adair Courthouse 1300 S. Harrison St. Fort Wayne, IN 46802 Clerk’s Office 214 Charles Halleck Federal Bldg. 230 N. Fourth St. Lafayette, IN 47901 Persons interested in applying must submit their application packet electronically in PDF format and include a cover letter indicating interest in the position, completed application form and any supporting documentation. Submissions can be emailed to humanresources@innd.uscourts.gov and must be received by close of business May 16.

All applications will be kept confidential, unless the applicant consents to disclosure, and all applications will be examined only by members of the merit selection panel and the judges of the district court. The panel’s deliberations will remain confidential. The U.S. District Court is an equal opportunity employer.

PRESIDENT’S PERSPECTIVE continued from page 5 reached out his hand, shook mine and said, “Thank you for letting me visit my dad.” And so, why pro bono? Well, one could argue that lawyers have a state-sanctioned monopoly to represent others in legal matters and pro bono is part of the price of that monopoly. Or that the comments to our rules of professional conduct tell us that we “should” do it. Maybe it is because providing pro bono legal services will help make the operation of our legal system fairer and more efficient by providing counsel to “DIYers” or those of modest means. Or, perhaps, it is just because it makes the life of someone else better, and you feel good about helping that come about. Whatever the reason, just do it!

NED P. MASBAUM, M.D. Board Certified Forensic Psychiatrist Web site: www.FORNPSYCH.com

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24-hour voicemail and paging (317) 846-7727 • Toll free (888) 203-7746

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By Bill Brooks

LDA visits Purdue’s Discovery Park & business incubator

LEADERSHIP DEVELOPMENT ACADEMY

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he signs were everywhere: Members of the Indiana State Bar Association’s Leadership Development Academy were light years from their comfort zones and their law libraries as they toured a land of cutting-edge science at Purdue University. Consider one sign, which adorned a wall behind Dr. Bruce R. Cooper as he spoke in the Bindley Bioscience Center: Creation of Allotypic Active Sites During Oxidative Stress

Sure. Cooper – whose title, director of metabolomics, wasn’t much help either – explained to the attorneys how the various centers located within what is known as the Purdue University Discovery Park existed to collaborate with professors, helping them in areas of expertise outside their own specializations. These centers hold such names as the Cyber Center, the Center for Predictive Materials & Devices and the Regenstrief Center for Healthcare Engineering. Another is the Birck Nanotechnology Center, the largest facility of its type outside the private sector. The heart of the building is a 25,000 sq. ft. nanofabrication cleanroom, which includes a biomolecular cleanroom with separate entry and gowning areas and isolated airflow. Researchers work on the atomic, molecular and supramolecular level in an environment 10,000 times cleaner than a hospital room. The 186,000 sq. ft. building also includes laboratory space with low-vibration rooms for nanostructures research. The Leadership Development Academy brought its traveling road show to Purdue University March 14-15 for a session titled “Energy and the Environment,” with the visit to the Discovery Park as only part of the adventure.

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The 25-member class also toured a little-known feature of the campus, a nuclear reactor that despite its low profile has percolated three stories underneath the campus since 1962. The tour was preceded by a briefing by Dr. Robert S. Bean, assistant professor of nuclear engineering and director of Radiation Laboratories. He explained the concepts of fission as well as the potential of nuclear energy, emphasizing that Purdue’s reactor was not a power plant, producing in fact less electricity than is needed to operate a hair dryer. The academy session included a briefing on a key element of the university’s science outreach – the Purdue Research Park, which is just north of campus and home to 164 companies employing more than 3,500 people with an average salary of $63,000. Jan H. Mills, director of economic development for the Purdue Research Foundation, which operates the business incubation complex, explained that each company located in the 725-acre park must have a relationship with Purdue University because the foundation’s goal is to advance the university’s mission. “These are the kind of jobs Indiana needs,” said Mills, former mayor of West Lafayette. She said that among the park’s goals is the “development of a community of like-minded entrepreneurs. Everything we do in the park is to encourage them, to help them be successful.” Mills went on to say that the foundation works to anticipate the companies’ needs in order to keep them from relocating. “We want them to think, ‘West Lafayette is where I want to be; this is where I want to stay.’” Hamid Piroozi, the foundation’s associate director/legal, deals with the management of

intellectual property, following Purdue’s goal (as a land grant college) to “get it in the hands of the public, everywhere.” An engineerturned-lawyer, Piroozi said his office works to help professors turn their inventions or discoveries into commercially viable properties. (Purdue, by the way, owns the intellectual property and never sells it, but instead looks for third parties for licensing.) Piroozi’s briefing sparked, as might be expected, a flurry of questions from the roomful of lawyers, as he discussed how the revenue is distributed and the complex array of licensing options that must be considered. “It’s absolutely a collaborative environment,” he said, “so there are no surprises.” The professors, he said, “are involved every step of the way.” The day at Purdue University was preceded by a dinner the night before hosted by Justice Loretta H. Rush of the Indiana Supreme Court in her Lafayette home, then an overnight in the university’s Union Club Hotel. The daylong session also delved into another of Purdue’s main areas, agriculture, with a panel discussion featuring Laurie L. Swift, administrative director for the department of food science; Wally E. Tyner, professor of agricultural economics; and Kashchandra G. “Ragu” Raghothama, professor of horticulture & landscape architecture and associate director of international programs in agriculture. Raghothama had some career advice for the young attorneys. “We need attorneys who specialize in international law,” he said, explaining that Purdue’s faculty works in more than 64 nations, many of those relationships dating back decades. “You will find wonderful leadership opportunities,” he said, explaining that in his line


Photo by Catheryne Pully

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Purdue grad students talk to class members of the State Bar’s LDA about nuclear energy research. of work, “having a good attorney is really important.” “Ragu” said Purdue works “with anyone who wants to work with us.” That is true even in difficult areas such as Afghanistan, where Purdue has a strong presence. Tyner’s presentation centered on Purdue’s role in energy conservation and advancements, noting that the university is sought out because “we’re viewed as being unbiased, objective.” He also talked about the complications of serving as an expert witness. Swift, too, noted that the university’s independent status comes into play in the food arena, where Purdue researchers work in improving the process of turning raw commodities into food. (That discussion prompted several questions, as well as a debate that never fully developed, over the university’s work with private companies and how that funding might jeopardize objectivity. Tyner chimed in that, in his experience, governmental clients were more likely to try to

sway the research than were private-sector firms. He also pointed out that Purdue’s firm policy is to never permit a ban on publication, so whatever the research reveals will be available.) “Our goal,” Swift said, “is to educate people with as much information as we can discover.” That process, she said, includes classroom lectures, research publications and the well-known Purdue Extension service, which operates throughout the state and has a wealth of information available online through its “Education Store.” The day also included group discussions involving several Purdue faculty, including Otto C. Doering III, director of the Purdue Climate Change Research Center and professor of agricultural economics; Ronald F. Turco, professor of agronomy; Timothy R. Filley, director, U.S.-China Ecopartnership for Environmental Sustainability; Michael J. Gulich, director of University Sustainability; and John J. Turek,

professor of basic medical sciences in the College of Veterinary Medicine. Doering, who has worked as a public policy specialist with every Indiana governor since Otis R. Bowen, defined that role. “You work with groups to identify problems, alternate solutions and the impact of the decision. But you do not make the decision.” Turek, who himself was involved in a start-up operation helped by the Purdue Research Park, told the attorneys that they could play a vital role in any such development. “We don’t know what questions we should be asking,” Turek said. “You can help us think through the short- and the long-term.” Bill Brooks is a media consultant and freelance writer in Indianapolis.

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By Hon. Tim A. Baker

Southern District programs for pro se parties help litigants, attorneys and the court

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case and reach a fair result for both parties.” Judge Jane E. Magnus-Stinson proposed the program for the Southern District after hearing of its success in the Northern District of Illinois. With the help of some of her fellow judges, court staff and a few federal court practitioners, the Southern District sponsored a training session in 2009 for lawyers who wanted to become involved in the program. The free, half-day training, which provided continuing legal education credit, included substantive components such as employment law and prisoner civil rights, as well as a mock settlement conference. Only two MAP appointments occurred in 2009. However, both of those cases settled. The seeds of success had been planted, and the program slowly began to flourish. Five MAP appointments occurred in 2010, and three of those cases settled. In 2011, four of seven MAP cases settled. Fourteen of 17 MAP cases settled in 2012, and the court sponsored a second free training session that year.2 In 2013, courtappointed MAP attorneys participated in 43 cases, 28 of which settled. In seven of the 2013 cases that did not settle, the attorneys continued their representation beyond the settlement conference.3 In February of this year, the Southern District judges hosted a breakfast for lawyers who volunteered on MAP cases, as well as lawyers who volunteered to help pro se litigants by accepting cases through the Civil Trial Assistance Panel. CTAP attorneys agree to make reasonable efforts to accept a pro bono case when requested to do so by the court. CTAP attorneys, who are not asked to accept more than one case at a time, typically remain on the case until it is

resolved, which may include trial.4 About 40 lawyers attended the breakfast at the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis and received the judges’ praise and encouragement, while exchanging compelling stories from the cases they volunteered to accept. After thanking the lawyers gathered at the event, Chief Judge Richard L. Young remarked, “We don’t try as many civil cases as we did years ago. It’s hard for a lawyer to get into the courtroom. Hopefully, this gives lawyers an opportunity to do that.” Attorneys Michele L. Richey and Julian E. Harrell of Taft Stettinius & Hollister echoed Judge Young’s feelings. The court appointed Richey and Harrell to represent a defendant in a complex case involving claims that included fraud, conversion and securities law violations arising out of a business deal that went south. “Trials are not as common as they once were, and it is very difficult for a young associate to get trial experience,” said Richey, a 2009 law school graduate. The Taft lawyers – who succeeded in getting all claims against their client dismissed with prejudice – relished having this type of rich and rewarding experience so early in their legal careers. Harrrell said he enjoyed the trial-prep aspect of the case the most, including drafting a trial brief and proposed findings and conclusions. “As a young associate at a larger firm, such opportunities do not arise often,” said Harrell, admitted Hon. Tim A. Baker to the bar in 2012. U.S. Magistrate Judge Southern District of Indiana “Accordingly, I enjoyed

BENCH & BAR NEWS

he verdict is in: Efforts in the Southern District of Indiana to help pro se litigants navigate their cases through federal court have been wildly successful. But litigants aren’t the only beneficiaries. The lawyers who have participated report tremendous personal and professional satisfaction through their involvement and enthusiastically encourage others to become involved. Along the way, the court has benefited greatly as well. The cornerstone of these efforts is the Mediation Assistance Program. MAP trains and appoints attorneys who volunteer to represent pro se litigants at settlement conferences. The attorneys typically enter limited appearances and help litigants prepare for a settlement conference, attend the conference with their client, and assist in drafting settlement documents if the case is resolved. The attorney receives no fee if the case settles as a result of the conference. If the case does not resolve at that juncture, the attorney may withdraw from the case, though some attorneys opt to continue their representation.1 Kristine L. Seufert, Southern District staff attorney, points out that 25 percent of the cases pending in that court have at least one pro se litigant. Seufert, who serves as the court’s pro bono coordinator, observed, “Settlement is nearly impossible when a party does not have any sense of what their case is worth. MAP attorneys provide that service. They take the time to discuss the litigant’s case, explaining both the strengths and weaknesses. They are then able to present the strengths of their client’s case during the settlement conference. In many cases, this knowledge creates realistic expectations, which are enough to settle the

(continued on page 12)

Indianapolis, Ind. Tim_Baker@insd.uscourts.gov

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PRO SE PARTIES continued from page 11 the heightened responsibility and autonomy that I exercised in serving our client’s needs.” Added Richey, “This is a great way to get the practical experience necessary to be a litigator.” Edward D. Thomas, an attorney at Lewis Wagner, likewise gained practical litigation experience in the two MAP cases he has handled. Although he is primarily a business litigator, the court appointed Thomas to represent plaintiffs in two employment discrimination cases. Thomas assisted in getting both cases resolved at settlement conferences. He encouraged all attorneys to participate in the program and called the experience immensely rewarding both personally and professionally, as well as educational. “It allowed me the opportunity to learn a new area of the law while simultaneously assisting a layperson through a

very difficult point in their life,” Thomas said. Jerry A. Garau, an experienced plaintiffs’ medical malpractice attorney with Garau Germano Hanley & Pennington, opted to handle a case within his area of expertise. He helped his client – an inmate at the federal penitentiary in Terre Haute – negotiate a settlement in a medical malpractice lawsuit against prison officials. “What I enjoyed most about the experience was getting to know my client and being able to get a positive result for him in the end,” said Garau, who also encouraged others to accept pro se appointments. “As a plaintiffs’ attorney, I think I need to occasionally put my money and efforts where my mouth is,” Garau said. “This is a way to do that.” This view is shared by Alan L. McLaughlin, managing partner at Littler Mendelson’s Indianapolis

office. McLaughlin has handled eight MAP cases – six employment discrimination cases, one prisoner medical care case, and one case alleging false arrest. McLaughlin said he has personally benefited from being involved in these cases. “As an attorney who primarily represents employers, it is incredibly beneficial to experience life ‘on the other side of the v.,’” McLaughlin said. “You better understand the challenges faced by opposing counsel, their need for certain information, the difficulty in obtaining information from certain clients, and how ‘facts’ may look from the other side.” In recognition of his outstanding work on MAP cases, the Seventh Circuit Bar Association awarded McLaughlin its Pro Bono Public Service Award at its annual meeting in May of 2013 in Indianapolis. “As a litigator, I believe each and every time I have the opportunity to appear with opposing counsel before a judge, I become a better attorney,” McLaughlin said. “Each experience is unique and better prepares me for anything and everything to come.”

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Ogletree Deakins partner Jan Michelsen is another experienced litigator who had a positive experience with the program and encouraged others to take on pro se cases. She has handled five cases of various types. One of those cases involved an inmate on death row in Terre Haute, who alleged prison officials were deliberately indifferent to his serious eye infection. With help from students at Indiana University Maurer School of Law, Michelsen settled the case at a court-supervised settlement conference. Michelsen said the gratitude as well as cooperation of the clients in these cases is “extraordinary.” After the inmate case was resolved, the client wrote a note to Michelsen, stating in part, “Thank you so much for helping me with my medical issues. You are an awesome, kick-ass attorney. I am truly grateful. Most people would not care what happens to me on death row, but you do, and that means a lot to me. Please thank your staff for their help, too. I will never forget you all.”5

Krieg DeVault partner Linda J. Cooley, who helped resolve an employment discrimination MAP case at a court-supervised settlement conference, simply stated, “Taking a day to help someone in need is one of the best days you will practice law.” Kightlinger & Gray partner Erin A. Clancy, who helped a prisoner civil rights plaintiff

resolve his case, said the experience prompted her to encourage her law firm to initiate a pro bono program. Judge Sarah Evans Barker of the Southern District, addressing the volunteers at the February breakfast, aptly summed up the experience by remarking, “These (continued on page 14)

While Michelsen’s client expressed his appreciation in colorful terms, the heartfelt emotion and gratitude in his words are indicative of the type of feedback received by attorneys accepting pro se representation in the Southern District. Attorney Sarah E. Caldwell of DeLaney & DeLaney, who along with her colleague Christopher S. Stake helped settle a MAP case involving sexual harassment and other claims, summed up this sentiment as follows: “I think lawyers have had the experience of getting a win for a client who doesn’t recognize it as such or doesn’t appreciate what you were able to accomplish, and this was the exact opposite of that. She was so grateful to have been heard and to receive the settlement amount she did.”

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Comment sought on possible court rule changes he Indiana Supreme Court Committee on Rules of Practice & Procedure is interested in obtaining comments from judges, attorneys and the general public to the following proposed amendments to the Indiana Rules of Court:

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• Public access to court records – amendments to Administrative Rule 9 to reorganize and clarify the rule; • Changes to appellate and trial rule amendments related to Administrative Rule 9 – conform the Rules to the new structure of Administrative Rule 9 • Body attachments – a new section to Trial Rule 69 that establishes procedures for issuing writs of body attachments • Appellate briefs and petitions – amendments to Appellate Rule 43 clarifying spacing requirements • Not-for-publication memorandum decisions – rename and allow for citation of such opinions for persuasive value The descriptions above are brief outlines of the proposed changes. Details about the proposed rule changes can be found at courts.in.gov/4186.htm. The nine-member Committee on Rules of Practice & Procedure is reviewing the proposed changes. The Court created the Committee to conduct a continuous study of the Indiana Rules of Trial Procedure and other rules as directed by the Court. The Committee must report to the Court recommendations and proposed amendments directed at simplicity in procedure, just determination of litigation, and elimination of unjustified expense and delay. The deadline for submitting comments is May 13. Comments can be sent via email, RulesComments@courts.in.gov, or in writing to the following address: Lilia G. Judson, Executive Director Indiana Supreme Court Division of State Court Administration 30 S. Meridian St., Suite 500 Indianapolis, IN 46204

PRO SE PARTIES continued from page 13 kinds of cases reflect why a lot of people went to law school. It’s hugely real. It really matters to [the clients]. It takes you into a relationship that you wouldn’t otherwise have. And it gives you stories to tell, which is why we all did go to law school.”6 1. If the attorney remains on the case beyond the unsuccessful settlement conference, the attorney may enter into a formal agreement with the client. If after that time the case settles or the client receives a favorable verdict, the attorney would be entitled to a fee. 2. About 80 attorneys completed the MAP training in 2009 and 2012. The court is planning another training on June 27 focused on assisting lawyers in handling pro se prisoner cases alleging inadequate medical care. Additional details will be posted on the court’s website at http://www.insd.uscourts.gov. 3. My experience with MAP reinforces its success. For example, in 2013 I appointed MAP counsel in five cases. All five cases settled as a result. Pro se parties are uniformly thrilled to have counsel appointed to represent them, if only for a settlement conference. Opposing counsel likewise appreciate the involvement of MAP counsel and the fact that the appointment improves the likelihood of settlement. Most often I have made these appointments early in the case, typically after discussing the MAP process with the parties at the initial pretrial conference. MAP appointments are usually made by magistrate judges, who have primary responsibility for settlement in Indiana’s Southern District. 4. S.D. Ind. L.R. 4-6(i) provides that the court will reimburse an attorney up to $500 for costs for representing a litigant under this rule and up to $1,000 at the court’s discretion. In addition, Local Rule 4-6(j) permits the court to award attorney fees to a litigant “who is represented by an attorney under this rule as if the litigant had retained a private attorney.” 5. The client, as well as Michelsen, expressly consented to allow this note to be published in this article. 6. Lawyers interested in accepting MAP or CTAP appointments can find additional information, including applications, on the court’s website at http://www.insd.uscourts.gov/forms/localforms/pro_bono_forms. Lawyers seeking appointment in these cases must be members of the court in good standing. Lawyers who wish to accept a pro bono CTAP case for all purposes should also consult Local Rule 4-6.

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Timeless Tips from the Bench & Bar 650 Years of Experience Continuing Legal Education Program Hosted by the Indianapolis Legal Aid Society

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6 hours CLE, 1 hour Ethics • All for just $300 Bring a big appetite – included in the price of just $300: a buffet breakfast, plated lunch, afternoon dessert and all-day beverages. The Marriott North is convenient to the interstate, with free parking. Our Featured Speakers Hon. Steven H. David • Hon. Theodore R. Boehm • Hon. Frank Sullivan Jr. • Hon. John G. Baker Hon. Cale J. Bradford • Hon. Elaine B. Brown • Hon. Terry A. Crone • Thomas L. Davis Ronald E. Elberger • Dean William F. Harvey • Joseph H. Hogsett • Charles M. Kidd Mark E. Maddox • Hon. Melissa S. May • Hon. Edward W. Najam Jr. • Hon. Margret G. Robb Hon. Nancy H. Vaidik • James H. Voyles Jr. Many Thanks to Our Supporting Sponsors Indiana State Bar Association • Indiana Bar Foundation • Indianapolis Bar Association Indiana Continuing Legal Education Forum • Indiana Coalition Against Domestic Violence Indiana University Robert H. McKinney School of Law • The Indiana Lawyer • Res Gestae Barnes & Thornburg LLP • Ice Miller LLP • Jackie Leverenz • Krieg DeVault LLP Plews Shadley Racher & Braun LLP • Taft Stettinius & Hollister LLP Contact seminar chair, Curtis E. Shirley, 317.685.6512 or curtis@shirleylaw.net, with any questions or to register.

Please send a check for $300 to: Indianapolis Legal Aid Society 615 N. Alabama St., Suite 122 Indianapolis, IN 46204


RG 04.14_RG 09.05 4/10/14 3:02 PM Page 16

By Seth M. Thomas

ELA statute of limitations: legislative response to Cooper Industries

I

n the past several years, the Indiana legislature, like many other states, enacted statutory causes of action to address the recovery of environmental costs. One statute, Ind. Code §13-23-13, the Underground Storage Tank Act (“USTA”), was enacted in 1987 and then amended in 1991. The USTA permits parties to clean up sites voluntarily and then seek reimbursement of the cost of a corrective action.1 After the 1991 amendment, the USTA permits a contribution action regardless of whether the third party was “solely liable for the contamination.”2 The USTA, however, only addresses contamination caused by underground storage tanks; thus it is limited in its applicability. In 1997, the General Assembly added a new chapter to the Indiana Code, creating a statutory cost recovery claim called an environmental legal action (“ELA”).3 The ELA’s stated purpose was “the rescue and redevelopment of brownfields.”4 The ELA was created to “shift the financial burden of environmental remediation to the parties responsible for creating contaminations.”5 The ELA created a “[financial] incentive for potential buyers of contaminated land who might be deterred by the substantial costs to clean up the land, thus preventing not only the cleanup but also redevelopment and economic renewal.”6 While these new laws were well intentioned, the USTA and ELA had a major flaw. Prior to 2011, there was no specific statute of limitations for these claims. This issue created significant disSeth M. Thomas ruption to USTA/ELA Ice Miller LLP Indianapolis, Ind. litigation. Defendants seth.thomas@icemiller.com argued that claims filed against them 16

RES GESTÆ • APRIL 2014

were untimely based on Ind. Code §34-11-2-7, Indiana’s 6-year statute of limitations for claims based on damage to real property. Plaintiffs countered that their claims were in the nature of contribution or cost-recovery claims, arguing that Indiana’s 10-year catchall statute, Ind. Code §34-11-1-2(a), applied to the ELA and USTA. Disputes also ensued over how such claims accrued, i.e., when the statute of limitations clock started ticking.

Guidance from the Indiana Supreme Court Beginning in late 2007, Indiana environmental litigators eagerly anticipated a resolution to these questions. Two cases were set for decision by the Indiana Supreme Court. The first case, Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008), involved a claim under the USTA. The second case, Cooper Industries, LLC v. City of South Bend, 899 N.E.2d 1274, 1283-1284 (Ind. 2009), involved an ELA claim. Oral argument occurred about a month apart, and the two decisions, it was believed, would resolve issues regarding statute of limitations for both the USTA and ELA. In June 2008, the Indiana Supreme Court decided Pflanz. The Court noted that it had previously affirmed application of the 10-year catchall limitations period to a USTA contribution claim.7 Thus, the only remaining issue for the Court was a determination of how the statutory period was triggered. The defendant argued it was triggered when a party “knew or should have known about the contamination” at issue.8 The Court rejected this argument and held that the USTA’s contribution claim “is not a claim for damage to the property itself.”9 “Rather, [plaintiffs] seek to recover for the cleanup costs IDEM required, which resulted from [defendant’s] use of the

land.”10 Based on this conclusion, the Court held that the USTA “statute of limitation did not begin to accrue until after the Pflanzes were ordered to clean up the property” and rejected the statute of limitations defense.11 The environmental bar waited several additional months for the Cooper decision. But after it was issued in January 2009, environmental litigators learned that Cooper would not resolve the ELA’s statute of limitations issues.12 Because the complaint in Cooper Industries was filed in March 2003, less than six years after the ELA was enacted, the Indiana Supreme Court decided that the case was filed “within even the shortest arguable limitation.”13 Thus, the Court did not decide the parties’ dispute regarding the time period for ELA claims (i.e., whether the ELA was subject to the 6-year limitations period or the 10-year catchall period).14 Nor did the Court determine the basis for when ELA actions accrue (i.e., when a party knows of the contamination at the property or when costs are incurred to cleanup up a site).15 In short, Cooper merely decided that claims filed within six years of the ELA’s enactment in 1998 were timely. Thus, lower courts could quickly dispose of statute of limitations defenses in litigation filed on or before February 2004. But this did not decide the issue for claims filed on or after February 2004. For those claims the arguments remained, but each side of the issue argued that Cooper supported their position. Plaintiffs argued that the state’s highest court would ultimately endorse a 10-year limitation period for ELA claims, triggered by the date costs or obligations are incurred. They were buoyed by statements in the decision that plaintiffs “will be in the same position under the ELA as


RG 04.14_RG 09.05 4/7/14 1:27 PM Page 17

s they would be under the USTA.”16 Defendants argued that Cooper had adopted (for all future cases) “six years as the applicable time period.”17 Thus, many ELA claims, filed after February 2004, continue to have disputes over the applicability of a statute of limitations defense.

Appellate court interpretations of Pflanz and Cooper Courts also differed in their post-Cooper approach. Two recent decisions display the disparity that has resulted. In Peniel Group, Inc. v. Bannon, 973 N.E.2d 575 (Ind. Ct. App. 2012), the Indiana Court of Appeals concluded that an ELA claim was untimely.18 The court construed the claim as a response to damage to plaintiff’s real property.19 Because the ELA suit had been filed more than six years after contamination was known to be on the property, the court found the suit was time-barred.20 Yet, just months later, the Seventh Circuit Court of Appeals came to the opposite result. In Bernstein v. Bankert, 702 F.3d 964 (7th Cir. 2012), the federal court considered the Peniel decision, but found that “not every ELA claim is one for property damages.”21 Finding the Bernstein lawsuit was more analogous to Pflanz, the court applied the 10-year limitations period and reinstated the ELA litigation.22

and (2) an action for a contribution to pay for corrective action related to a release from an underground storage tank.” It further provides that a party, in all actions filed after the statute’s enactment, could seek recovery of any costs incurred during the 10-year period prior to the date the lawsuit is filed under the ELA and USTA. The new statute made clear that the party seeking recovery may proceed whether or not other (non-recoverable) costs were incurred more than 10 years ago. The new specific statute of limitation is not helpful to actions initiated in trial courts before May 10, 2011, such as Peniel and Bernstein. The legislation specifically noted that it applied to any action brought on or after the effective date (May 10, 2011).23 The statute excluded any currently pending litigation and any claims “finally

adjudicated or settled” prior to May 2011.24 Given these limitations, it is unsurprising that no appellate case has yet interpreted Ind. Code §3411-2-11.5. As of the time of this article, only Peniel and Bernstein have cited the new statute. In Peniel, the Indiana Court of Appeals noted the statute’s enactment, but the court merely quoted the statute.25 The opinion did not offer any discussion of the new statute or its potential impact on future litigation.26 The Seventh Circuit, however, noted that “any future ELA actions will be governed by the independent limitations period legislatively added to the ELA.”27 In that case, the panel predicted that “[i]f §34-11-2-11.5 governed this litigation, the resolution (continued on page 18)

The legislative response to Cooper Prior to Peniel and Bernstein, the legislature had taken up the issue of a “specific statute of limitations” for both the USTA and the ELA. On May 10, 2011, Gov. Mitch Daniels signed into law Senate Enrolled Act 346 (“SEA 346”), which was codified at Section 34-11-2-11.5. The statute specifies “the statute of limitations for: (1) an environmental legal action; RES GESTÆ • APRIL 2014

17


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ENVIRONMENTAL LEGAL ACTION continued from page 17 of the [statute of limitations] issue would be a simple affair.”28

A response to the McInerny view In the March 2013 edition of Res Gestae, Daniel McInerny offered an interesting take on SEA 346, Peniel and Bernstein. The article posited that Ind. Code §34-112-11.5 was not really a statute of limitations.29 Instead, he opined that this new law could be interpreted as merely “a limitation upon the time period for the recovery of costs.”30 His article suggested that the legislature’s failure to use the words “must be commenced [within X years after Y point in time]” meant that the legislature failed to create a specific statute of limitations. The article opined that Ind. Code §34-11-2-11.5 was “missing ... any limitation upon which the action itself must be commenced.”31 On this basis, he argued that the new statute did not resolve the statute of limitations issue. This unique interpretation doesn’t appear to survive a close inspection. First, the legislature placed the new statute in Chapter 2 of Section 11, a chapter entitled “Specific Statutes of Limitation.” Under the doctrine of pari materia, each of these sections should be construed in the same way. In other words, one must treat section 11.5 as a statute of limitation, just like all of the other sections in this Chapter. Indeed, the section does provide a limitation period for ELA/USTA actions – it applies to cases “brought on or after the effective date of this section.”32 By expressing an intent that “a person may seek to recover the following [costs] in an action” the statute demonstrates that all ELA/USTA cases, filed after the effective date, may proceed, but only with regard to certain costs.33

18

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Second, public policy does not support further argument in favor of statute of limitations defenses after Ind. Code §34-11-2-11.5 was enacted. In Cooper, the Court noted that the public policy underlying statutes of limitation is to “provide security against stale claims, which in turn promotes judicial efficiency and advances the peace and welfare of society.”34 The legislature’s new “specific statute of limitation” addresses this staleness concern. It limits newly filed ELA and USTA actions to future costs and those costs incurred within the 10 years prior to the filing of litigation. In selecting the 10 years of costs, the legislature balanced two equities – it protected ELA and USTA defendants from claims involving decades’ old environmental costs, while providing plaintiffs with a bright-line rule permitting them to file ELA and USTA actions. Arguing that Ind. Code §34-11-211.5 is not a specific statute of limitations undermines the legislative balance struck by the General Assembly. Third, it is not useful to analyze future cases based on these prior decisions. When determining statute of limitations arguments, Indiana courts first consider whether a cause of action has a specific statute of limitations.35 Indeed, the catchall limitations statute, forming the basis for the Pflanz decision, specifically disclaims any application to causes of action for which “a different limitation is prescribed by statute.”36 Many courts have affirmed this principle.37 It is highly unlikely that courts will treat Ind. Code §34-11-2-11.5 as simply limiting the time period for which damages may be sought; instead this new provision distinguishes ELA and USTA cases filed after May 10, 2011, from all cases filed on or before May 9, 2011.

It is relatively simple to apply this analysis to the hypotheticals previously suggested by McInerny. He suggested that under Pflanz a USTA defendant sued 13 years after a cleanup order was issued by IDEM would argue that the plaintiff’s action was barred under Ind. Code §34-11-1-2(a). As noted above, however, Ind. Code §34-111-2(a) does not apply to a newly filed USTA action because Ind. Code §34-11-2-11.5 provides a “specific statute of limitation” for a USTA claim. Thus, defendants’ statute of limitations challenge would not result in dismissal of the litigation. A defendant will, however, be able to challenge, under Ind. Code §34-11-2-11.5, any costs a plaintiff incurred more than 10 years before the litigation was filed. The other suggested hypothetical involved an ELA defendant arguing that a newly filed ELA action would be barred by Ind. Code §34-11-2-7. Under the hypothetical, the ELA suit was filed more than eight years after the plaintiff learned that the property was contaminated. The plaintiff’s knowledge, however, became immaterial to ELA and USTA claims with the passage of SEA 346. The new statute demonstrates the General Assembly’s determination that ELA actions, filed after May 9, 2011, accrue based on when response costs are incurred. The statute speaks clearly that a person may seek such costs in an ELA action “even if the person or any other person also incurred costs more than 10 years before the date the action is brought.”38 The “even if” statement is a plain statement that historic cleanup efforts, more than 10 years old, performed by the same person, will not prohibit the newly filed litigation. If the new statute was merely a description


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of the type of costs that may be sought, rather than express permission to bring such an action, this statutory statement would be rendered superfluous. This would produce an absurd result prohibited by the rules of statutory construction.39

Conclusion Indiana appellate courts have not resolved the interpretation of Ind. Code §34-11-2-11.5. However, it is unlikely that courts will interpret the new provision as permitting further litigation regarding statute of limitation defenses in ELA and USTA claims. It seems much more likely that courts will agree with the Seventh Circuit’s prediction that “[i]f §34-11-2-11.5 governed this litigation, the resolution of the [statute of limitations] issue would be a simple affair.”40 1. See Bourbon Mini-Mart v. Gast Fuel & Servs., 783 N.E.2d 253, 260 (Ind. 2003).

25. Peniel Group, Inc., 973 N.E.2d at 580 n. 4.

McFarland Foods Corp. v. Chevron USA, Inc., 2001 U.S. Dist. LEXIS 2679, 15-16 (S.D. Ind. Jan. 5, 2001) (holding 10-year catchall statute applies to a cause of action that “is not limited by any other statute.”).

26. Id. 27. Bernstein v. Bankert, 702 F.3d 964 (7th Cir. 2012). 28. Id. at 986 n. 10. 29. McInerny, “The ELA Statute of Limitations: Has the Issue Really Been Resolved?” Res Gestae, March 2013, p. 39-41. 30. Id. 31. Id. 32. Ind. Code §34-11-2-11.5(b) (emphasis added). 33. Id. 34. Cooper Indus., 899 N.E.2d at 1279. 35. See Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008) (noting that prior cases applied “the 10-year [catchall] statute of limitation for actions [because they were] not limited” by a specific limitation provision.). 36. Ind. Code §34-11-1-2(c). 37. Bernstein v. Bankert, 702 F.3d 964, 985 (7th Cir. 2012) (“When this action was filed, the ELA did not include its own limitations provision.”); Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008) (noting agreement by parties that catchall statute applied to claim because USTA was not limited by any other statute); Comm’r, Ind. Dep’t of Envtl. Mgmt. v. Bourbon MiniMart, Inc., 741 N.E.2d 361 (Ind. Ct. App. 2000); Com’l Logistics Corp. v. ACF Indus., 2006 U.S. Dist. LEXIS 84338 (S.D. Ind. July 18, 2006) (noting similarities between USTA and ELA, including the fact that both “omitted any reference to a statute of limitations”);

38. Ind. Code §34-11-2-11.5(b)(1) (emphasis added). 39. Cooper Indus., 899 N.E.2d at 1283. 40. Bernstein, 702 F.3d at 986 n. 10.

Seth Thomas serves as a partner in Ice Miller’s environmental group. He primarily practices commercial, environmental and insurance coverage litigation. He received his B.S., with highest distinction, in business administration from Indiana University’s Kelley School of Business at Indianapolis in 2001. He earned his J.D., summa cum laude, from I.U. School of LawIndianapolis in 2005 where he was editor-in-chief of the Indiana Law Review.

2. Id. 3. See Ind. Code §13-30-9-2. 4. Cooper Indus. LLC v. City of South Bend, 899 N.E.2d 1274, 1280-1281 (Ind. 2009). 5. Id. at 1284. 6. Id. 7. Pflanz, 888 N.E.2d at 758 (citing Comm’r, Ind. Dep’t of Envtl. Mgmt. v. Bourbon Mini-Mart, Inc., 741 N.E.2d 361 (Ind. Ct. App. 2000) summarily aff’d by 783 N.E.2d 253 (Ind. 2003)).

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12. Cooper Industries, LLC, 899 N.E.2d at 1278. 13. Id. at 1286. 14. Id. at 1286. 15. Id. 16. Id. 17. Id. at 1286 n. 9.

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18. Id. 19. Id. at 581-82. 20. Id. at 583. 21. Id. at 988. 22. Id. at 988-89. 23. See Ind. Code §34-11-2-11.5(b). 24. See Ind. Code §§ 34-11-2-11.5(d) and (e).

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Former Chief Justice Shepard on Conrad Baker’s contributions to racial & gender equality

A LOOK BACK

F

aegre Baker Daniels LLP hosted several programs on diversity and inclusion last year. One program focused on Conrad Baker, a governor of Indiana and founder of the firm Baker & Daniels, and his contributions to the progress of women and African Americans. The program consisted of an interview of former Chief Justice Randall T. Shepard, a biographer of Conrad Baker, by Faegre Baker Daniels partner Jon Laramore. Jon Laramore: What got you interested in Conrad Baker? Chief Justice Shepard: Conrad Baker is somebody you know about if you grow up in Evansville. I first came to focus on his life story when I was associated with a foundation created to save the 1890 Vanderburgh County Courthouse. As in many urban communities, the courts and the county government had moved into a new civic center when I was in college. Enough people recognized that the 19th century courthouse was worth saving that they formed a foundation to take title from the county and to preserve and operate this massive building. They named this new enterprise the Conrad Baker Foundation in honor of all the things that Conrad Baker had meant to Indiana and to Evansville. I eventually became chairman of the board of the Conrad Baker Foundation and thus came to know a good deal more about him. JL: What made him special to Evansville? CJS: Conrad Baker and his brother, William, were prominent figures in Evansville’s civil life for several decades. For a good while, William was actually the more prominent because he was mayor of Evansville and, I think, still is the only person

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Conrad Baker, lawyer & governor who was actually elected mayor four times. Conrad Baker also held local office, including a judicial office, but ultimately became the better known of the two brothers because until late in the 20th century he was the only person from Evansville to serve as governor of Indiana. Now, of course, people know Conrad Baker and Gov. Bob Orr as Evansville’s two governors. Contemporaries of the Baker brothers would have recognized the

prominent role they played during the Civil War. When the fighting broke out at Fort Sumter, they called a rally in downtown Evansville to show support for the Union and began to recruit troops. Mayor Baker and his brother, the lawyer, went about creating a regiment to send into the fray right at the very beginning. Conrad Baker later played a substantial role in organizing Indiana’s overall war effort. To this day you can find images of William Baker and


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Conrad Baker in various public places in Evansville. JL: So he was a unionist. Was he an abolitionist? CJS: He had spent an apprenticeship in the law office of Thaddeus Stevens, where he probably would have acquired a lot of knowledge about abolitionist views. I do not remember him as being active in the abolitionist movement, but, in truth, I can’t tell you whether he held strictly abolitionist views. His views were, in general, very anti-slavery, and he did many things in the struggle against slavery that made a real difference.

Illinois under lawful circumstances or if a servant indentured elsewhere was brought into Illinois under lawful circumstances, the Illinois prohibition against slavery was not meant to disrupt an existing proper ownership relationship. So, whereas Indiana said from the very beginning there will be no slavery, period, Illinois was much more respectful of the “investment” that had

been made in the slave or servant. It allowed the relationship to continue, at least for a period of time. Illinois maintained that position for almost 30 years after Indiana had declared otherwise. There was ongoing litigation about runaway slaves and about people passing back and forth, (continued on page 22)

JL: What are some of those things? CJS: I’ll mention two really remarkable stories. One features Conrad Baker as a lawyer, and the other involves Conrad Baker as governor. Indiana, of course, was a free state from the very beginning. Indeed, the Northwest Territory was a place where slavery had been outlawed from the day of its creation. Nevertheless, there was a fair amount of sympathy toward the South in states like Indiana and particularly in the southern parts of states like Ohio and Illinois and Indiana. And there was litigation over both slavery and indentured servitude in the earliest days of statehood. Indiana had a very good record with respect to slavery, outlawing slavery and indentured servitude outright by both constitutional command and court decisions virtually from our founding. Indiana said, in effect, we simply will not recognize any slave or indentured relationship, whether that relationship is created in Indiana or created in some other state where slaves or indentured servants were lawful. By contrast, Illinois’ view was that if you brought a slave into RES GESTÆ • APRIL 2014

21


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CONRAD BAKER continued from page 21 and perhaps Conrad Baker’s most famous role as a lawyer in this field involved a woman who came to him, saying the following: “We owned a farm on which there was a slave, and it was our parents’ intention to free the slave, Tom, who had eventually become an indentured servant. After our parents

died, when we prepared to give Tom his freedom and to operate the farm using employed labor, we discovered that our parents were so deeply indebted to a distant cousin that in fact there wasn’t much value left. “The cousin lived in a southern state – I have thought it might be

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Tennessee, though I haven’t been able to establish that conclusively. He said, ‘I’ll let you keep the farm if you give me Tom.’” The reaction of the Indiana relatives was at first one of absolute horror. “We’re not going to sell Tom down the river, so to speak. Tom has always been thought of as part of the family.” But, Tom insisted on going to Tennessee. Because he loved the family so much, he realized they would lose their livelihood and lose the family farm if he didn’t go. So he went. Eventually the family got back on its feet, and they went to the cousin and said, “Let us buy you out. Tom’s just got a couple more years on his contract. Let us buy you out.” And the cousin said, “Tom is the most valuable possession I’ve ever had. I have no intention of turning him loose.” The family is at a dead end when somebody says to them, “There’s a lawyer in Evansville whom you ought to see named Conrad Baker. He’s helped other people who have problems like this.” So they make the trip. They go to see Baker, and he examines all the papers and analyzes the relevant dates and how the transaction unfolded. He accompanies them to Tennessee, files an action in a state where slavery is lawful, and persuades the judge that Tom ought to be freed. He obtains a court order freeing an indentured servant from a state in which slavery is legal. And they all come back to Indiana. Later in life Conrad Baker tells a friend in a letter that, of all the cases he did as a lawyer, this was the one that gave him the greatest satisfaction. As governor, Baker took official actions to assure equal protection and full participation by people of all races. When the Civil War was over, the Congress took up (continued on page 24)

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CONRAD BAKER continued from page 22 constitutional amendments that abolished slavery, assured equal protection and advanced voting rights, all matters important to former slaves and to African Americans in general. These amendments were, of course, as the recent movie about Abraham Lincoln recounts, Republican projects that were very energetically opposed by Democrats. After adoption, these amendments were put before the Indiana General Assembly for ratification, at the very end of Gov. Oliver Morton’s term in office. The Democratic legislators all voted against the Thirteenth Amendment, which outlawed slavery, and lost. They all voted against the Fourteenth Amendment on equal protection and lost again. But the real death match was over whether African Americans would have the right to vote. JL: That’s the Fifteenth Amendment. CJS: Yes, this was the finale. The proposal that Indiana ratify the Fifteenth Amendment was placed before the Indiana General Assembly at the beginning of 1869, just as Conrad Baker has been elected governor in his own right. The Democrats are seriously outnumbered. The Republicans have large majorities in both houses, but they don’t have two-thirds, which is the quorum requirement. The Democrats could have simply walked out to break the quorum, but they were worried about being prosecuted for that, and so they decided to do something really remarkable. They resigned from office. So there was no quorum. Gov. Baker said, well, that’s just fine, and he called immediate elections to fill all the vacancies. The same Democrats run for office, and they are all re-elected. And Baker sent over the Fifteenth 24

RES GESTÆ • APRIL 2014

Amendment again, and they resigned a second time. At this point the Republicans decided to engage in what could be called fairly creative lawyering. They announced that the quorum requirement, which is one more than half of the members of each house, would apply only to those members who are actually holding office – not including those who resigned. After that, they passed the Fifteenth Amendment by quick votes in both houses. One of the little vignettes of that saga is that by the time of these events Oliver Morton has been chosen as a U.S. senator, and he happened to be in town. They handed the ratification documents to Oliver Morton, who boarded the train, took them to the Secretary of State in Washington and said, “Here, Indiana ratifies.” Of course, the Democrats were furious and filed complaints, claiming constitutional irregularities. The administration of Andrew Johnson and the Radical Republicans then prevailing in Washington had no interest in any of that. They checked Indiana off as a ratifying state. The Democrats, by the way, fairly shortly took control of the Indiana General Assembly and undertook to withdraw Indiana’s ratification, but it was too late. The amendments had been ratified. One of the chief engineers of this drama pursuing ratification is Gov. Baker, and he and others succeeded in getting Indiana lined up in a way that made the Fifteenth Amendment law. JL: I’ve read in the chapter that you wrote on Conrad Baker in the Governors of Indiana book that he was an early supporter of women’s suffrage, and given how long ago he was governor, that surprised me a little. Could you talk a bit about that?

CJS: He did give speeches and memorials and writings about women’s suffrage as early as the 1870s. And you’re right, that was pretty early. Obviously, that’s a struggle that runs on for another – JL: 50 years. CJS: Yes, but in this period there are already very active efforts underway to establish the rights of women on other points, like ownership of property and the ability to sue and be sued in court. His attitude about suffrage thus fit well in the era in which people were trying to achieve other things on behalf of women. He was out in front of this series of developments. I think his attitudes on these issues are also demonstrated in work that he did on both education and on what today we would call corrections reform. JL: In what ways? CJS: He allied himself with people like the Quakers on issues such as punishment as opposed to reformation of criminals, and he personally spent an enormous amount of capital and effort to get women and children out of the state prison at Jeffersonville and to create reformative institutions. What we used to know as the Boys’ School, now the Plainfield Juvenile Correctional Facility, was a Conrad Baker project to take errant boys out of the adult prisons. He had the same attitude about the fact that women and girls were in the main state prison at Jeffersonville. By the time he left office, the Boys’ School and Women’s Prison were either under construction or had already opened. He looked for money to move women and girls to a place where they could be reformed and not be subject to the sorts of experiences one can only imagine they endured in the state prison. Likewise, one of the fields where women finally got a break


RG 04.14_RG 09.05 4/7/14 1:27 PM Page 25

into the professional ranks was education, and he was in the front row with respect to two of Indiana’s leading universities, both of which got creative on his watch. One of those was Purdue. The other, I think probably closer to his heart, was founded as the Indiana State Normal School. Baker had a pretty good strategy for both the State Normal School and the Boys’ School. He invited communities to compete to host these institutions. The Indiana State Archives hold records demonstrating how he considered proposals that various communities submitted describing why they wanted to do it and how they would maximize the chance for success. He placed his energy behind such efforts, I think, because he believed that in the long run the state could thrive only if it had a

well-educated population. So he saw it partly as creating a better Indiana in the long run, but seen in the context of the age, this constellation of efforts also helped to advance opportunities for women. JL: And just to finish one thread of that story, the proposal that ultimately got accepted for the Indiana State Normal School was where, and how has that evolved? CJS: Baker decided that the best proposal came from the civic leaders of Terre Haute. The Normal School was created, opened rather quickly, and today is called Indiana State University, a place offering multiple disciplines to 12,000 students. It has always been a school known as a place where women were very welcome. My own grandmother went there to learn how to be a teacher in 1909. And it’s also

been known to this day as a place very welcoming to African Americans and other minorities. It had a substantial cadre of minority students at a time when universities that we might associate with this cause were lesser contributors. Conrad Baker (1817-1885) was governor of Indiana from 1867 to 1873 and a partner at Baker & Daniels from 1873 until his death in 1885. Randall T. Shepard was Chief Justice of Indiana from 1987 to 2012 and now serves as a senior judge on the Indiana Court of Appeals and Executive in Residence at Indiana University’s Public Policy Institute. Jon Laramore is co-leader of the appellate advocacy practice at Faegre Baker Daniels LLP.

RES GESTÆ • APRIL 2014

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RG 04.14_RG 09.05 4/7/14 1:27 PM Page 27

By Cynthia Sharp

Take charge of your own economy “Can anybody remember when the times were not hard, and money not scarce?” – Ralph Waldo Emerson

W

e live and practice in challenging economic times. The media keeps us well informed as to the high rate of unemployment as well as the increase in mortgage foreclosures and inundates the airwaves and e-waves with predictions of doom and gloom. At the national level, our recourse is limited to our right to vote and voice our concerns to elected officials. Although this is a significant right and responsibility, our ultimate ability to influence global and national economic policy is restricted. On the other hand, each of us is able to exert control over our own personal financial futures so long as we are armed with the requisite knowledge and wisdom. Remember that your economy is not the global economy. Over a span of almost 30 years in private practice, I discussed personal finances in painstaking detail with thousands of individuals and families in my capacity as an estate planning and elder law attorney. What intrigued me was the financial disparity that existed among people in similar circumstances. This wealth gap likewise exists among attorneys who have had similar opportunities. Class reunions make this quite apparent. Some people in your law school class are well-off while others struggle. Obviously, the professional choices that we make dictate our income potential. Yet there are those who have made lots of money while accumulating meager assets, and there are those who have earned significantly less but are well on their way to retirement. Many factors influence the amount of wealth that one accumu-

lates. Certainly, luck can play a part. Some acquire wealth through inheritance or marriage; however, they do not represent the majority. 69 percent of respondents to a 2008 poll conducted by PNC Wealth Management accumulated the bulk of their financial holdings through work, business ownership or investments, whereas a meager 6 percent acquired wealth by inheriting it. An additional 25 percent have prospered through a combination of inheritance and personal earnings. By and large, I have observed that people who have “done well” and are “living the dream” share three common characteristics: First, they are financially literate, having committed to an ongoing education with respect to investment and money management principles. Second, emotional maturity and wisdom guide them in their decision-making process. Third, they heed advice given to them by financially astute mentors. The principles outlined in this article are geared toward those who do not have a sizable inheritance on the horizon or who are not yet

financially independent. Although many will find the following six suggestions to be familiar, most have not applied them with persistence and consistency to their own lives.

Assess your financial health An analysis of financial health begins with determination of net worth and a review of your credit report and credit score. Although the bleak or disappointing truth may be difficult for those who have experienced setbacks, facing objective reality is indeed the first step to taking control of the reigns of your personal economy. Worksheets to determine net worth are readily available. Although the calculation is simple (financial assets less liabilities equals net worth), the “legwork” requires an investment of a little time and effort, which is an obstacle to some. Recalculating the figure on a quarterly basis is indeed a proactive approach. As your net worth increases, your confidence builds, and you will be inspired to contin(continued on page 28)

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TAKE CHARGE continued from page 27 ue with your positive course. A decline in a given quarter may evoke negative feelings, but you will be in a position to quickly adjust your course if the current strategy is not proving effective. Lenders, landlords, insurance companies and even employers rely on your credit report and credit score to determine your credit worthiness. The adverse consequences of a poor credit rating include denial of loan applications, increased interest rates and higher car insurance premiums. Most credit scores (commonly referred to as FICO scores) are calculated by software developed by Fair Isaac Corporation and range between 350 (extremely high risk) and 850 (extremely low risk). The factors used to arrive at the FICO score include payment history, amount of debt and length of credit history. Credit scores can

be improved over time by making payments on time and reducing debt. Under the Fair Credit Reporting Act (FCRA), each of the three major reporting companies (Equifax, Experian and TransUnion) is required to provide an annual free copy of a consumer’s credit report upon request. Reports from all three can be obtained through the website www.annualcreditreport.com. Errors on credit reports may be disputed by contacting either the credit bureau or the organization that provided the incorrect information to the credit bureau.

Set specific financial goals Whether the objective is to fund retirement, get out of debt, buy a vacation home or send the kids to college, it must be set forth in writing with specificity. First,

project the exact amount that you need. Second, determine the date by which you must accumulate the required resources. Third, establish benchmarks and concrete criteria so that you can measure your progress on a quarterly basis. Fourth, adjust along the way as necessary. In the words of the French writer and aviator Antoine de Saint-Exupéry, “A goal without a plan is just a wish.”

Develop budgetary discipline Some agree with Oscar Wilde that “[a]nyone who lives within their means suffers from a lack of imagination.” On the other hand, meeting your savings goals requires you to live below your means. The budget process seems simple; yet, according to the 2012 Consumer Financial Literacy Survey, more than half of the adults surveyed had not established a household budget (tinyurl.com/ bne3gll). Information regarding the mechanics of setting up a budget along with basic budget worksheets is readily accessible through a number of Internet resources. The process involves recording all sources of income and listing all expenses (whether incurred monthly or otherwise). The expense side should include the amount to be set aside to meet long- and short-term financial goals discussed above.

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RG 04.14_RG 09.05 4/7/14 1:27 PM Page 29

After subtracting expenses from income, there will either be a deficit or surplus. If you have a deficit, you need to make more money (a topic beyond the scope of this article) or reduce expenses. Enhancing net worth by adjusting lifestyle can pose a huge challenge; however, it becomes more palatable when you maintain the perspective that the long-term financial goal is more important than short-term gratification. If you have a surplus, save it!

A number of online calculators are available that will assist you in establishing realistic goals. Tempting as it may be, I do not recommend taking out a home equity loan to consolidate outstanding credit card debt.

for the client’s best interest and make recommendations accordingly. However, some present biased information to guide the client into a product from which the planner will receive a high commission.

Example: Sally Barrister has an outstanding balance of $35,000 in credit card debt at 15 percent interest. If her goal is to eliminate the debt in four years, she needs to pay $974.08 every month.

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Along that same line, beware of doing business with people who suggest that you invest in deals that will generate a huge return on your funds in a relatively short period. Remember, “If it sounds too good to be true, it probably is.” Living by this precept can save you some headaches.

Credit cards offer a convenient method by which to make and keep track of expenditures. Besides, it is fun to cash in on one’s accumulated points. However, their double-edged allure is apparent to those who use them to live an otherwise unaffordable lifestyle. Responsibility for monthly payments can continue for years after the items purchased are discarded or extravagant restaurant meals are enjoyed. Example: Joe Lawyer and his family decide they deserve a vacation. Because he is barely making ends meet, he charges $5,000 on his Visa card, knowing that he can squeeze $150 per month out of the budget to pay the debt. Presuming an 11 percent rate of interest, he will make his final payment about 3-1/2 years after the vacation, and the actual cost of the trip will be $6,000 (the interest payments total $982.62). As a general rule, if you can’t pay the credit card bill at the end of the month, don’t incur the charge. If you have already incurred significant credit card liability, commit now to a plan to satisfy the debt no matter how overwhelming it may seem.

Having money to invest for the future presents its own set of challenges. The objective is to enjoy reasonable return on the asset (whether through appreciation or income) as opposed to losing your proverbial shirt. Make sure that you get your education from an unbiased source. Many financial planners look out

I have personally witnessed several clients and friends who were persuaded to mortgage their homes to invest in Ponzi operations, highly leveraged real estate deals (now underwater) and risky tax shelters. Many of these “opportunities,” (continued on page 30)

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TAKE CHARGE continued from page 29 if not most, went south and sour. The investors were saddled with the sting and burden of expensive mistakes. If you do not understand how the investment works (including the purported tax benefits), keep your money for another opportunity – which will certainly come along.

Establish open financial communication in relationships It’s difficult enough to accomplish financial success on your own without taking into account the values and expectations of a spouse or significant other. Ideally, you will be in harmony in all aspects of your relationship – including financial. However, the chances of finding a romantic partner with whom you are in complete agreement on money issues are highly unlikely, if not impossible. According to a recent survey conducted by Harris Interactive on behalf of the American Institute of Certified

Public Accountants, American couples argue about financial issues more than any other issues, including child rearing and division of household chores (tinyurl.com/92blucg). Although some couples opt to live separate financial lives, most are intertwined – at least to some extent. Establishing a strong communication process with respect to finances will go a long way toward prevention of relationship discord as a result of financial disagreements. Money discussions may not be romantic, but money disagreements are even less so. The following tips should prove helpful: 1. Strong relationships are founded on full disclosure with respect to all aspects of life. Before the marriage or other commitment, make sure that you exchange information regarding your respective incomes, assets and liabilities. (Couples entering into prenuptial

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arrangements are required to exchange this information.) The thorough couple will compare credit reports and credit scores. It is better to reveal a poor credit history now rather than later, when you are trying to make a joint purchase with your partner. 2. Clearly allocate responsibility with respect to the administrative aspect of money management and accumulation goals. 3. Have a regularly scheduled “business meeting” (at least quarterly) to discuss short- and longterm goals, savings, cash flow and spending issues. 4. Do not deceive your mate about finances. The aforementioned Harris Interactive survey revealed that three in 10 adults who are married or living with a partner admit to potentially deceitful behavior about money.

So take charge No matter your current circumstance, you can improve your economic status – over time. A bright financial future is attainable by those willing to form and consistently follow sound financial habits like those outlined above. If you wish to learn more about these principles (and many more), see my upcoming book, The Lawyers’ Guide to Attaining Financial Security, set to be published in June by the American Bar Association on behalf of its Solo, Small Firm & General Practice Division. Cynthia Sharp is an author, professional speaker and business coach. She can be reached by email at cindy@ thesharperlawyer.com or at 609/9231017. Cynthia is a featured speaker at both the May 1 Health Law Symposium and the Solo & Small Firm Conference in early June. This article was originally published by GP SOLO, a publication of the American Bar Association, Vol. 30, No. 1, January/February 2013.


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RG 04.14_RG 09.05 4/7/14 1:27 PM Page 32

By Donald R. Lundberg

Managerial and supervisory responsibility for avoiding conflicts of interest

ETHICS CURBSTONE

I

n my last column, I described the general responsibilities imposed on law firm managers and supervisors under the Rules of Professional Conduct. I have also written a series of columns about various aspects of conflicts of interest. This month it is time for a mash-up: I will discuss the application of managerial and supervisory responsibilities to avoidance of conflicts of interest. Law firm managers and supervisors have special responsibilities for designing and implementing effective systems to identify, prevent and address conflicts of interest.

Imputation of conflicts As we all know, most conflicts of interest are imputed to all lawyers in the same firm. See, primarily, Indiana Rule of Professional Conduct 1.10(a). Consider this scenario: Lawyer A represents client Able. Lawyer B, who is in the same firm as A, accepts client Baker in a matter directly adverse to Able. Unless there are client consents, this creates a conflict of interest under Rule 1.7(a)(1). If anyone is to be disciplined, who and why? (Benign conflicts of interest rarely result in professional discipline, but they could. Disqualification is the more likely upshot of a conflict of interest.) Well, A probably didn’t do anything wrong. Her representation of Able came first. It was B’s acceptance of Baker that created the conflict of interest. So B should be disciplined, right? Not so fast. B is not representing a client in direct adversity to another of his own Donald R. Lundberg clients. Remember, Barnes & Thornburg LLP Indianapolis, Ind. Able is represented by donald.lundberg@BTLaw.com A, not B, even though they are in the same 32

RES GESTÆ • APRIL 2014

law firm. This is not a direct Rule 1.7 problem, it is a conflict imputation problem under Rule 1.10(a): “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 … .” (Emphasis added.) So B can’t represent Baker if A couldn’t represent Baker, which she could not.

Acting knowingly So far, so good. But what about that word, “knowingly,” that I considerately emphasized for you? That word is typically overlooked, but it shouldn’t be. For a lawyer to act knowingly, it must be with actual knowledge of the fact in question. Rule 1.0(f). In other words, Rule 1.10(a) is not a strict liability rule. In order to be accountable in discipline for the conflict of interest, B must have taken on Baker as a client while actually knowing that Able was already a firm client. How do lawyers know about the clients of other lawyers in the same firm? Sometimes they are simply aware through general knowledge of the firm’s affairs, but usually it is because a conflictof-interest check tells them that, to use our example, adverse party Able is already represented by the firm. If B accepts Baker as a client armed with that knowledge from a conflicts report, B has violated Rule 1.10(a), no question.

Personal responsibility But there are other possibilities. B might not have read the conflicts report. Or perhaps he did, but A failed to have Able entered into the firm’s conflicts system. Or maybe the conflicts system itself is flawed. Or a nonlawyer who operates the conflicts system failed to enter Able as a firm client or made

an error in entering the conflicts search for the Baker engagement. Each of these presents a different scenario implicating different rules or even no rule at all and no one should be disciplined. Under these various scenarios, someone other than B might be disciplined, or B might be disciplined for violating some rule other than Rule 1.10(a). Consider: If B fails to order a conflicts report or orders one but doesn’t read it, B has no actual knowledge of the conflict, meaning he might not have violated Rule 1.10(a). However, it might be argued that B, knowing he should have checked conflicts, but failed to do so, was willfully blind to the possibility of a conflict, which might substitute for the element of acting knowingly. There is precious little Indiana discipline case law on this point, but the basic concept was accepted by the Supreme Court in Matter of Broderick, 929 N.E.2d 199 (Ind. 2010). Even if B is not charged with violating Rule 1.10(a) on those facts, some alternate charging theory might be available, such as B’s failure to act competently as a lawyer under Rule 1.1. Regardless, once the conflict surfaces, B can no longer disclaim actual knowledge, and he will be required to terminate his representation of Baker, since to continue that representation would thereafter be knowing conduct and hence a violation of the Rule 1.7(a)(1). See also Rule 1.16(a)(1) (withdrawal is mandatory to avoid a violation of the Rules of Professional Conduct). If B properly had a conflicts report run, but A failed to have Able entered into the conflicts system as a firm client, the focus should then be on A’s conduct and her competence, possibly in violation of Rule 1.1.


RG 04.14_RG 09.05 4/7/14 1:27 PM Page 33

Managerial and supervisory responsibility If B did not use the conflict system because there wasn’t one or it was a lousy one, B might be off the hook, but firm management might be left holding the bag under Rules 5.1(a) and 5.3(a). I doubt that B yelling down the hall, “Does anyone represent A?” would suffice as an adequate conflicts system. And if B did not use a good conflict system because the firm’s supervisory structure had failed to impress upon B the necessity of using the system and how to use it, a supervising attorney could become the focus of the Disciplinary Commission’s concern under Rules 5.1(b) and 5.3(b). The same goes for A. If she did not enter Able into the system because her supervisors had not impressed upon her the importance of and knowledge about doing a conflicts check, it might be the supervisors, not A, who should be responsible for the problem. If A and B did their parts, but a nonlawyer in the firms’ conflicts “department” (which might be a fractional part of one employee’s time) doesn’t know how to use the system, the responsibility should probably lie with the lawyer who is responsible for supervising the nonlawyer employee in charge of operating and maintaining the conflicts database.

Stuff happens Finally, consider this: B asks for a conflicts report to be run on Able and Baker. It is a good conflicts system that is used diligently. The report doesn’t show a hit for Able because when Able was entered into the conflicts system, a keystroke error caused it to be entered as “Abel.” Now we really go down the rabbit hole. This unintended error might absolve everyone from disciplinary accounta-

bility because the standard for lawyer discipline is not perfection. “The Rules of Professional Conduct are rules of reason.” Preamble at ¶ [14]. However, that won’t avoid a disqualification risk, which is not going to require a finding that the firm acted knowingly. B should not be disciplined merely because it was his represen-

tation of Baker that caused the conflict. B did what he was supposed to do and did not knowingly accept an engagement that created the conflict. Nor should A. She did her job by having Able entered into the conflicts system. Is a computer database that relies exclusively on perfect name (continued on page 34)

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ETHICS CURBSTONE continued from page 33 matches good enough – especially knowing that humans are prone to precisely this type of error? The adequacy of a law firm’s conflicts system is ultimately a matter of good law firm management, implicating Rules 5.1(a) and 5.3(a). Without getting further into the weeds, consider that a more effective conflicts checking system would include phonetic (“soundslike”) name searches. And there ought to be a backup system consisting of an old-fashioned memo circulated by email to all firm lawyers when Baker tenders a new engagement to B, asking for a response if anyone knows whether a lawyer in the firm represents or has represented Able or whether Baker has ever been adverse to a firm client.

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In a law firm where most conflicts of interest are imputed, the job of identifying, preventing and addressing conflicts of interest is everyone’s job. There is a special role for management to make sure effective measures are in place for identifying conflicts of interest. There is also a special role for direct supervisors to impress upon supervisees the importance of strict compliance with the firm’s conflicts system. Finally, it is the responsibility of every lawyer in the firm to use the firm’s conflicts system and share with all colleagues a responsibility for stepping forward whenever a conflicts situation might arise.


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By Maggie L. Smith and Emily K. Cremeans

Appellate civil case law update

SUPREME COURT DECISION Unanimous Supreme Court holds that land underlying public roadway owned by the State, which is included in an area sought to be annexed, should be considered and counted as a single parcel in determining whether individuals who are remonstrating comprise 65 percent of the owners of the annexed territory, as required by Indiana Code §36-4-3-11(a) Indiana Code Section 36-4-311(a) provides that the annexation of a territory may be appealed by filing a written remonstrance that has been signed by (1) “at least sixty-five percent (65%) of the owners of land in the annexed territory”; or (2) “the owners of more than seventy-five percent (75%) in assessed valuation of the land in the annexed territory.” In 2008, the City of Boonville passed an ordinance annexing 1,165 acres to its west. Subsequently, 230 individuals, trusts and corporate entities (“the Landowners”) filed an action opposing the annexation. A unanimous Supreme Court in American Cold Storage v. City of Boonville, 2 N.E.3d 3 (Ind. 2014) (Dickson, C.J.), held that, when determining whether remonstrating landowners comprise 65 percent of the owners of the annexed territory, the calculation should consider the adjoining portion of a state high-

way as a single parcel rather than separate parcels. The Supreme Court also summarily affirmed the Court of Appeals’ rejection of a waiver argument presented by the City. In reaching its decision, the Supreme Court relied on the Court of Appeals’ determination in an earlier appeal in this case that the parcels extending under the public roadway that forms a boundary to the annexed territory are not to be counted in either the total parcels in the annexed territory or as a remonstrating parcel. It concluded that this determination is the law of the case. Additionally, the Supreme Court distinguished two prior cases, Arnold v. City of Terre Haute, 725 N.E.2d 869 (Ind. 2000), and City of Fort Wayne v. Certain Northeast Annexation Area Landowners, 564 N.E.2d 297 (Ind. Ct. App. 1990), on the grounds that those cases involved private owners of multiple parcels, not land under a public highway.

SELECTED COURT OF APPEALS DECISIONS Landowner owed no duty to plaintiff who came onto her property without invitation and was injured when tree holding hammock that plaintiff was sitting in fell The plaintiff did not know the defendant, but came onto her lakeside property while out walking one night. The plaintiff sat in the defendant’s hammock that was strung between two trees on the beach next to the lake. One of the trees holding the hammock fell and seriously injured the plaintiff, who sued the defendant, alleging she should not have connected the hammock to the tree. The Court of Appeals in Mohr v. Virginia B. Smith Revocable Trust, 1 N.E.2d 50 (Ind. Ct. App. 2014)

(Bradford, J.), held the plaintiff was not a public invitee to whom a higher duty was owed, but was, at most, a licensee and “[a] landowner’s only duties to a licensee are to refrain from willfully and wantonly injuring the licensee and to warn the licensee of any latent danger on the premises of which the owner has knowledge.” The plaintiff alleged liability because the tree was dead and decaying and the defendant failed to warn the plaintiff of this latent danger. The court, however, concluded the undisputed designated evidence failed to establish that the defendant knew of the latent danger allegedly posed by the tree.

RECENT DECISIONS 1/14

I

n January, the Indiana Supreme Court issued one civil opinion and granted transfer in one civil case. The Indiana Court of Appeals issued 16 published civil opinions. The full texts of these opinions are available via Casemaker at www.inbar.org.

As a matter of first impression, evidence of UM insurance coverage limits is not admissible when only issue being tried is the amount of damages The plaintiff was permitted, over objection, to introduce evidence that the UM insurance coverage limit was $250,000. The only issue at trial was damages, and the jury returned a verdict for exactly $250,000. On appeal, State Farm asked the Court of Appeals “to align our law with states that have determined that evidence of a UM insurance limit is inadmissible.” As a matter of first impression, the Court of Appeals agreed to do so in State Farm Mut. Auto. Ins. v. Earl, 3 N.E.3d 1009 (Ind. Ct. App. 2014) (Baker, J.). They began by noting that “[i]n some circumstances, evidence of UM insurance limits is

Maggie L. Smith Frost Brown Todd Indianapolis, Ind. mlsmith@fbtlaw.com

Emily K. Cremeans Frost Brown Todd Indianapolis, Ind. (continued on page 38) ecremeans@fbtlaw.com RES GESTÆ • APRIL 2014

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RECENT DECISIONS 1/14 continued from page 37 clearly relevant. For example, if the existence of the policy is challenged or if the amount of the coverage limit or a coverage issue is a jury question in the case.” However, when the only issue to be determined is damages, the court held evidence of the bodily injury limit in the UM policy is irrelevant. The court also concluded “in light of the fact that the jury awarded precisely the coverage limit, we cannot say that the jury was unaffected by the evidence of the coverage limit.” Judge Riley dissented, believing the trial court did not abuse its discretion when it admitted the UM coverage limits and that there was no prejudice shown by the admission of the limits because of “the substantial amount of evidence reflecting Jerry’s extreme pain in the weeks after the wreck and the physical pain, mental suffering,

and limitations he continued to suffer because of his injuries until his death.”

Crime Victim’s Statute inapplicable to support treble damages where defendants wrongfully failed to distribute net revenue in accordance with business agreement because defendants’ actions constituted failure to pay a debt, not criminal conversion The plaintiff was a joint venture partner who believed he was not receiving the income to which he was entitled and his requests to see the business financials were being ignored. He filed a complaint, requesting an accounting and asserting claims of breach of contract, conversion and civil conspiracy. He later amended the complaint to add claims to pierce the

corporate veil, fraud and constructive fraud, breach of fiduciary duty, embezzlement, disregard of corporate formalities. He also sought treble damages, attorney fees and costs under the Crime Victim’s Statute. Following a trial, the court found in favor of the plaintiff and awarded him compensatory damages amounting to $1,754,278 and also entered an award of treble damages upon its conclusion that the defendants had committed conversion. The Court of Appeals in Bowden v. Agnew, 2 N.E.3d 743 (Ind. Ct. App. 2014) (Friedlander, J.), reversed the award of treble damages under the Crime Victim’s Statute, holding, “money may be the subject of an action for conversion only if it is capable of being identified as a special chattel. In other words, it must be a determinate sum with which the defendant was entrusted to apply to a certain purpose.” Accordingly, “[i]t is well established that refusal to pay a debt will not generally support a conversion claim.” The court then concluded the defendants’ “wrongful failure to distribute net revenue in accordance with the 50/50 agreement constitutes a failure to pay a debt, not criminal conversion. The money withheld from [plaintiff] was not a separate, specifically identifiable chattel.”

OTHER COURT OF APPEALS DECISIONS • “When returning a verdict in favor of Bethel, the jury determined Bethel’s total damages were over $5 million. The jury determined that Reed was 75% and Bethel was 25% at fault, resulting in a damages award of $3.9 million to Bethel. This reduction in the verdict to reflect Bethel’s comparative fault suggests that the jury did not award 38

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damages based solely on the improper consideration of liability insurance. Instead, such a reduction “indicates to us that the jury exercised its discretion to evaluate and weigh the evidence to reach a conclusion regarding damages.” Reed v. Bethel, 2 N.E.3d 98 (Ind. Ct. App. 2014) (Pyle, J.) • “The direct action rule bars a third party from pursuing a claim based on the actions of an insured directly against an insurer. … The basis for the direct action rule is that the tort plaintiff is not a party to the insurance contract and therefore lacks sufficient standing to pursue claims against the insurer for negligence or bad faith in handling claims. The rule also promotes a policy of avoiding adverse consequences that may flow from third parties suing insurers directly for damages, including multiple litigation and escalating insurance costs.” Weist v. Dawn, 2 N.E.3d 65 (Ind. Ct. App. 2014) (Sharpnack, Sr.J.). • Damages awarded under the Indiana Sales Representative Act are punitive in nature and, therefore, subject to the evidentiary standard, limitation and diversion provisions of Indiana’s punitive damages statute. Andrews v. Mor/Ryde Int’l, Inc., 2 N.E.3d 794 (Ind. Ct. App. 2014) (Pyle, J.). • The city’s failure to discharge its duty under Damage to Underground Facilities Act to provide accurate locations of underground facilities relieved utility of liability for flood damage caused by utility’s excavation and construction. City of Fort Wayne v. N. Indiana Pub. Serv. Co., 2 N.E.3d 60 (Ind. Ct. App. 2014) (Bradford, J.). • Review Board’s determination that a college cook was on an unpaid “vacation week” during summer period when he was “on call” was reasonable because the period of unemployment was due

to the employer’s regular vacation policy and practice, and the employee had reasonable assurance of employment after vacation period ended. Broxton v. Review Bd. of Indiana Dep’t of Workforce Dev., 999 N.E.2d 1069 (Ind. Ct. App. 2014) (Barnes, J.).

SUPREME COURT TRANSFER DISPOSITION The Indiana Supreme Court granted transfer in the following civil case, with the opinion to follow at a later date: Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, 993 N.E.2d 302 (Ind. Ct. App. 2013) (Sharpnack, Sr.J.) transfer granted Jan. 17 (dealing with whether Access to Public Records Act requires public access to death certificates). Maggie Smith is a 1996 magna cum laude graduate of the University of Arizona School of Law and was a visiting third-year student at the Indiana University School of Law-Bloomington. Following graduation from law school, she clerked for the Indiana Supreme Court, the Hon. Brent E. Dickson, and served as an adjunct professor at the I.U.

School of Law. Maggie is a member with Frost Brown Todd and practices in the area of appellate litigation. She is extremely active in the Indiana appellate bar and serves as a frequent commentator and lecturer on appellate issues. Emily Cremeans is a 2009 summa cum laude and Order of the Coif graduate of the University of Illinois College of Law. Prior to joining Frost Brown Todd, Emily completed a clerkship with the United States Court of Appeals for the Ninth Circuit, the Hon. Richard C. Tallman, and worked as an assistant U.S. attorney, briefing and arguing more than 20 cases before the Seventh Circuit. Emily is an associate in the appellate and business litigation practice groups at Frost Brown Todd.

Address change, email or postal? Contact Kevin Mohl @ the State Bar kmohl@inbar.org 800.266.2581

Bridget O Bridget O’Ryan ’ Ryan 317.255.1000 boryan@oryanlawfirm.com b or yan@or yanlawfirm.com 1901 B BROAD ROAD RIP RIPPLE PLE AVENUE AVENUE IND INDIANAPOLIS, IANAPOLIS, IN 46220

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ISBA Annual Day of Service Sept. 20 ho: Attorneys and judges from local bar associations throughout the state of Indiana

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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 chance to be a part of a new movement in the Indiana legal community as they participate in the second Annual Day of Service. The Annual Day of Service was initiated by the ISBA Service Committee, a standing committee of the ISBA established in 2012. When: Sept. 20, 2014 Where: ISBA district liaisons will work with local bar associations

I’m impressed by Dean Peter Alexander’s vision. As a practicing attorney, the idea I find most exciting is his emphasis on legal ethics, professionalism, and civility. Ethics and professionalism have to be taught from day one.

Jack Roebel Deputy Allen County Prosecutor

1-855-TECH.LAW | Law.IndianaTech.edu

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to coordinate efforts in every county for the Annual Day of Service. Different 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 or Salvation Army. Why: The ISBA Service Committee champions hands-on community service, with the goal to inspire attorneys to get their hands dirty by weeding community gardens, cleaning up their local parks, adopting streets, building homes, and aiding in disaster relief. While many State Bar committees and sections performed seasonal service activities, both legal and nonlegal, most are not supported by a committee structured to be completely devoted to nonlegal community service, where members of the bench and bar play an active role in improving the physical appearance of communities. Although attorneys throughout the Hoosier State are not strangers to the idea of community service, before now there has never been an organized effort throughout the state to enable the bench and bar to help their communities outside the realms of the legal world. The ISBA Service Committee is an innovative concept for bar associations and hopes to serve as a nationwide model for direct community service, unifying members of state, local and specialty bars and shining as a beacon of light for improving the reputation of the legal community as a whole. On the first-ever Annual Day of Service last year, the Service Committee organized eight projects in six counties and had more than 60 judges and attorneys show up to volunteer. The goal is to make this event bigger and bigger every year. Stay tuned for more information on how you can get involved. In the meantime, email Catheryne Pully with questions, cpully@inbar.org.


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By Prof. Joel M. Schumm

Confrontation Clause, forcibly resisting, other holdings

INDIANA SUPREME COURT CASES Forcibly resisting law enforcement In Walker v. State, 998 N.E.2d 724, 725 (Ind. 2013), the Indiana Supreme Court considered the sufficiency of evidence to support a conviction for resisting law enforcement against a defendant who refused repeated orders to lay down and “advanced aggressively, with his fists clenched, to within a few feet of the police officer.” The Court has long required that proof of “strong, powerful, violent means” to uphold conviction, reversing cases in recent years that failed to meet that standard. Id. at 727 (citing K.W. v. State, 984 N.E.2d 610 (Ind. 2013); Graham v. State, 903 N.E.2d 963 (Ind. 2009)). In Walker, the Court summarized several recent Indiana cases before rejecting “any strict brightline test for whether a defendant acts ‘forcibly’ – at least, not one with any more definitiveness than the language already in use by our case law.” Id. at 728. Although refusing the officer’s orders and walking toward him were not evidence of forcible resistance, displaying his fists – which the Court characterized as a “weapon” – within 3 or 4 feet of the officer was “sufficient to show an active threat of strength, violence, or power.” Id. at 729. Noting that its “body of case law provides ample guideposts for appellate review,” the Court upheld the conviction. Id. at 728.

Confrontation Clause clarified Speers v. State, 999 N.E.2d 850 (Ind. 2013), provides a helpful summary and analysis of recent U.S. Supreme Court authority regarding Confrontation Clause challenges to laboratory tests. Significantly, the Court acknowledged the “continued validity” of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009), has been undermined by Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Specifically, Bullcoming makes clear that the State cannot merely call a laboratory supervisor “with direct involvement” in the technical process, but rather the Sixth Amendment ensures the right of an accused to confront the analyst who prepared a certification. Speers, 999 N.E.2d at 854-55. In Speers, however, the only analyst who conducted DNA testing and prepared the reports admitted at trial did testify at trial, which complied with Bullcoming. Although the State did not call the technician who transferred blood found on a piece of glass to a swab for later testing, the Court concluded that missing “links in the chain of custody” do not establish a Confrontation Clause violation. Id. at 855 (citing Kennedy v. State, 578 N.E.2d 633, 639 (Ind. 1991) (“the State need not establish a perfect chain of custody, and any gaps go to the weight of the evidence and not its admissibility”)).

Improper limiting instruction In Halliburton v. State, 1 N.E.3d 670 (Ind. 2013), the Court considered the propriety of the following limiting instruction given to a jury: You’re about to hear evidence that is being offered for a limited purpose. The evidence that you are about to hear is not being offered to prove the character of any person. It is offered for the limited purpose of establishing proof of motive, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. It’s admissible for that limited purpose because I have ruled that is relevant, and the probative value outweighs any prejudice there may be. The evidence, as I said, is being admitted for this limited purpose and for no other purpose.

Id. at 683. The trial court – and not the jury – determines the admissibility of evidence, and therefore the Supreme Court found the instruction was erroneous because the jury “had no role in the matter.” Id. at 684. The Court instead cited with approval Criminal Pattern Instruction 12.17: Evidence has been introduced that the Defendant was involved in (crimes) (a crime) (wrongful conduct) (bad acts) other than (those) (that) charged in the information. This evidence has been received solely on the issue of Defendant’s (identity) (motive) (intent) (preparation) (plan) (knowledge) (absence of mistake) (absence of accident) (sanity). This evidence should be considered by you only for that limited purpose.

CRIMINAL JUSTICE NOTES 12/13 - 1/14

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uring December and January, the Indiana Supreme Court decided cases involving the Confrontation Clause, forcibly resisting law enforcement and an improper limiting jury instruction. The Indiana Court of Appeals issued opinions addressing a wide variety of issues summarized below.

Id. at 684 n. 9.

INDIANA COURT OF APPEALS CASES Law of the case doctrine In Wells v. State, 2 N.E.3d 123 (Ind. Ct. App. 2014), the Court of Appeals rejected a defendant’s challenges to the denial of his request for severance of charges. Finding that his arguments on direct appeal were “nearly identical” to the ones rejected in an earlier interlocutory appeal, the court applied the law of the case doctrine. The court acknowlJoel M. Schumm edged that the doctrine Clinical Professor of Law does not apply when IU Robert H. McKinney “additional information School of Law distinguishes the case Indianapolis, Ind. (continued on page 42) jmschumm@iupui.edu RES GESTÆ • APRIL 2014

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CRIMINAL JUSTICE NOTES 12/13 -1/14 continued from page 41 factually from the cases decided in the first appeal” but concluded that the sworn witness testimony at trial was the same as the facts presented in the interlocutory appeal. Id. at 129-30 (quoting Parker v. State, 697 N.E.2d 1265, 1267 (Ind. Ct. App. 1998)).

the denial of credit time, the Court of Appeals concluded that allowing “credit time to a person who fails to comply with deferral conditions diminishes the value of such programs in that the incentive to comply is undermined by the reward for failure.” Id. at 793.

No credit time for electronic monitoring while in drug treatment court

Return of service on protective order is not testimonial

In Meadows v. State, 2 N.E.3d 788 (Ind. Ct. App. 2014), the Court of Appeals rejected a defendant’s request for credit for the time spent on electronic monitoring while in a drug court program. The court found inapplicable the statutes that allow credit time for defendants (1) confined on home detention as a condition of probation, (2) placed in a community corrections program or (3) serving time on electronic monitoring while awaiting trial or sentencing. Id. at 792-93. Because there is no statutory mandate for credit time for electronic monitoring while in drug court, trial courts are free to exercise their discretion. In affirming

As a matter of first impression, in Gaines v. State, 999 N.E.2d 999 (Ind. Ct. App. 2013), the court rejected a defendant’s challenge to the admissibility of a return of service on an ex parte protective order. After considering cases from other jurisdictions, the court concluded that “[t]he primary purpose of the return of service is administrative – ensuring that the defendant received notice of the protective order.” Id. at 1004. Although it may later be used in a criminal prosecution, “the return of service was not created solely for use in a pending or future criminal prosecution” and thus was held not testimonial under the Sixth Amendment. Id. at 1004-05.

Accident Reconstruction Services

Crash Scene Investigations

Automobiles • Semi-Trucks P.O. Box 663 New Castle, IN 47362

(765) 545-0262 Fax: (765) 529-4501

www.csi-ars.com gmetroka@CSI-ARS.com

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Insufficient evidence of raccoon chasing Jeremy Schath was raccoon hunting with his dog one evening when his dog crossed the road onto private property on which he was not allowed. Schath v. State, 2 N.E.3d 136 (Ind. Ct. App. 2014). Schath twice retrieved his dog, which had cornered a raccoon in a drainage pipe, and immediately left the property. Id. at 137-38. A statute criminalizes the chasing (or hunting, trapping or fishing) of animals without the consent of the owner or tenant of land. Ind. Code §14-22-10-1. Although appellate courts frequently emphasize their inability to “reweigh the credibility of witnesses or the evidence on appeal,” the conviction was reversed because “all the evidence in the record” showed Schath was retrieving his dog and not chasing a raccoon. Schath, 2 N.E.3d at 138.

Contempt appeal dismissed as moot Respondents in civil commitment appeals have long been permitted to appeal after the term of their commitment expired under the “great public interest” exception to the mootness doctrine. See, e.g., In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002). Although a contempt case seems analogous to civil commitment in many respects, the Court of Appeals dismissed as moot a contempt appeal in Bell v. State, 1 N.E.3d 190, 193 (Ind. Ct. App. 2013), concluding the “argument for applying the public interest exception conflates an exception reserved for ‘questions of great public importance’ with mere error review.”


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VIEW FROM THE BENCH continued from page 46 rental property – who hasn’t “written off” large amounts of money. Common sense dictates that good business practices and compassion are more appropriately in the hands of the plaintiff than the court. I often say, “It is not right for me to be generous with someone else’s money.” When the parties have the authority and leverage in their hands, they are much more likely to work out an equitable solution. And they are more likely to comply with an agreed order than a judicial decree. In most eviction cases possession is resolved at a prompt hearing, and the issues of damages and security deposits are held open for a later hearing. The landlord must supply the tenant a notice about the status of the security deposit and refund within 45 days. Very often those later hearings are either not necessary, or both sides decide to write off the issues. But if it is necessary to hold a hearing regarding those remaining issues, it is scheduled after possession has been delivered and inspections and estimates have been completed. Separating the possession and other financial issues (to the degree possible) helps defuse some of the emotional controversies. For example, what constitutes normal wear and tear can only be determined after the leasehold has been completely severed. Both parties then have the opportunity to prepare their case calmly and not in an emergency mindset. They can take pictures and call witnesses and experts. That is not to say that all such hearings are dispassionate, but more often the parties have had time to deliberate and focus their energies on preparing a convincing presentation to the court.

(and sometimes unauthorized individuals and pets living at the residence) were terrorizing an entire complex. A common defense to an eviction is that the rent isn’t being paid because of the condition of the residence – it is roach- and rat-infested, the roof is leaking, the windows let the wind through, sewage is running into the basement, and the furnace doesn’t work. The best independent resource we have to determine the validity of those issues is the city engineer’s office. They do an inspection and generate a detailed report. Sometimes the report absolutely verifies the tenant’s complaints. Sometimes it absolutely refutes the complaints. Often it is somewhere in the middle. Regardless, it is clear that there is not a healthy landlord/tenant relationship, and it is best to sever the leasehold as soon as possible.

Any delay usually backfires, and the situation always gets worse, never better. “Slumlord” is an extremely derogatory term, but those who provide low-income housing are not automatically evil. They provide a valuable and necessary service to the community. If the situation is truly as bad as the tenant claims, they need to relocate immediately for that reason alone. We can resolve the possession issue at that moment and then hear the landlord’s money issues and defendant’s counterclaim at a later date. In the end, I hand the tenant a card referring him or her to the homelessness prevention program because it is still an unfortunate situation.

On the other hand, I have been moved by a sad story and thought the landlord was being unreasonable only to find that the tenants RES GESTÆ • APRIL 2014

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Comment sought on Child Support Guidelines he Domestic Relations Committee of the Judicial Conference of Indiana is holding a public hearing and seeking comment on Indiana’s Child Support Guidelines. Members of the public, judicial officers, attorneys and parents are invited to attend the hearing, which will also be webcast. Friday, May 16 10 a.m. - noon Indiana Statehouse Supreme Court Courtroom Indianapolis, Ind.

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Those interested in speaking at the hearing and/or submitting comments need to visit www.in.gov/ judiciary/4188.htm to learn details. For example, speakers need to sign up in advance and will be limited to five minutes. Organizations must designate a single person to appear as a representative. Written comments will also be accepted until May 27 and can be submitted online at the website above or through the mail at the following address: Indiana Judicial Center, c/o Domestic Relations Committee, 30 S. Meridian St., Suite 900 Indianapolis, IN 46204-3564. The Domestic Relations Committee will review public comments to assist in recommending amendments to the Guidelines to the Indiana Supreme Court.

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CLASSIFIEDS Employment Opportunities EXPERIENCED LITIGATION Attorney. Growing Lafayette law firm is seeking an experienced litigation attorney to handle a broad variety of business and commercial litigation and pre-litigation matters. A successful candidate should have at least 5 years of experience in commercial and business litigation. Interested and qualified candidates should email a cover letter, résumé and salary requirement to careers@gutweinlaw.com. LINCOLN FINANCIAL GROUP is seeking Counsel, Commercial Contracts, in Fort Wayne, Ind. This position will provide legal counsel and strategic advice to business clients responsible for a wide variety of contracts and transactions, including supply agreements, IT service agreements, consulting agreements, outsourcing agreements, licensing agreements, equipment lease agreements and event planning agreements. Reply to Res Gestae, Box 041401, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. GROWING LAW FIRM in need of an attorney with 0-3 years’ exp. Small firm, northeastern Indiana rural area, compensation base salary plus incentives. Please send résumé to Res Gestae, Box 041402, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. ELKHART LAW FIRM of Thorne Grodnik LLP is seeking an associate attorney with 0-3 years’ experience for general practice. Email résumé, transcript and writing sample, which will be held in strict confidence, to gduncan@tglaw.us with a copy to cgrodnik@tglaw.us. GROWING LAW FIRM in northwest Indiana in need of an associate attorney, prefer 2-3 years of litigation experience but will consider hardworking new graduates. Base salary plus profit sharing in exchange for 50+ hours per week. Email preferred, dargo@bettercallmylawyer.com. ASSOCIATE. Small, well-established law firm located in Columbus, Bartholomew County, Ind., is seeking an associate, with 2-5 years of experience preferred but not required, for its general law practice. Email résumé to mchandler@lpmglaw.com.

BINGHAM GREENEBAUM DOLL, one of Indianapolis’ largest law firms, seeks estate-planning attorney with 3-5 years of experience to join its team. The successful candidate will have experience with sophisticated estate planning techniques, trust and estate administration and charitable planning. Well-developed writing, interpersonal and client management skills are also essential requirements. The firm offers an excellent compensation and benefits package. Please send résumé to Roz Hazzard, rhazzard@bgdlegal.com.

Employment Desired 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. SOCIAL SECURITY DISABILITY – Soultana S. Myers, Myers Hockemeyer & McNagny, LLP, 116 N. Chauncey St., Columbia City, IN 46725. Accepting Social Security disability clients in northern Indiana. Member of National Organization of Social Security Claimants’ Representatives. Toll-free: 888/248-2224. FRED PFENNINGER, COMMERCIAL & other collections. When you need help collecting your judgment. On faculty for over 30 seminars on collection law. Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500, fred@indianacollections.com INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, truge@lewis-kappes.com VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com.


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WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker's compensation cases statewide. Please telephone 812/437-9991.

WORKER’S COMPENSATION. Indianapolis attorney Charles A. Carlock seeks referrals on worker’s compensation cases statewide. Tele., 317/5735282 or 866/573-5283.

EMPLOYMENT LITIGATION Indianapolis area attorney available for referrals and co-counsel affiliations on wide range of employment matters. 25+ years of experience representing businesses and employees. Robert S. Rifkin, Maurer Rifkin & Hill, P.C., 317/844-8372.

LONG-TERM DISABILITY. Attorney Charles A. Carlock seeks referrals on claims for long-term disability (ERISA) benefits. Tele., 317/573-5282 or 866/573-5283.

ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, boryan@oryanlawfirm.com CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father and brother practiced many years in Marion. Enjoys interacting with Indiana lawyers. Handles transactions, ancillary probates and general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation, 50 California St., Suite 3500, San Francisco, CA 94111; tel., 415/421-6700; fax, 415/398-2438; email, johnrbrowne@sbcglobal.net; www.jbrownelaw.com FLORIDA ANCILLARY PROBATE in most counties. Call collect, Pavese Law Firm, 239/542-3148, attn: Michael Gennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904. 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. LOCAL COUNSEL, southwestern Indiana. Vanderburgh, Posey, Gibson, Pike, Dubois, Warrick, Spencer, Perry, Knox, Daviess. Circuit/Superior Court, Bankruptcy/District Court, Sheriff Sales, Settlement Conferences. Erin Berger, 812/250-6744, erin@erinbergerlaw.com STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com

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RES GESTÆ • APRIL 2014

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RG 04.14_RG 09.05 4/7/14 1:27 PM Page 46

By Hon. Gregory J. Donat

Unfair or unfortunate

A

VIEW FROM THE BENCH

woman seeking help from our community homelessness prevention program complained that it was unfair “that she was being evicted.” The director responded, “No, it is unfortunate.” That simple distinction carries a wealth of meaning. Something is unfair when it is an injustice caused by human action. Unfortunate can just be unlucky – fault is not a necessary component. The homelessness prevention program’s mission is to assist people in need regardless of fault, so blame is not an issue. And it is really not the landlord’s fault the tenant could not pay the rent. “Unfair” focuses on the past and assumes someone must bear responsibility for the problem at hand. “Unfortunate” looks to the future and focuses on how to solve the problem without judging people’s actions or motives. Many cases come before our court where a landlord is seeking to have a tenant evicted. Occasionally, it’s because of a dispute between the parties, but most often it’s for nonpayment of rent. The tenants usually have financial difficulties that make it impossible for them to produce the rent on time. Those situations can be quite sad. As a judge, I find it is often difficult to evict tenants – to throw them to the wind without offering more than a kind word. In response to that need, our community developed a program to offer professional guidance to those in such need. We identified one agency that can be the entry point for the entire array of community resources. When anyone is being evicted and does not yet have arrangements for housing, I give him or her a business card, pointing them in the direction of our homelessness prevention program. That agency maintains a working relationship with all government, public and private resources in the community that provide housing assistance. That array of resources is a constantly changing system, with funding and such varying weekly. Programs come and go, and the quality of the programs is constantly evolving as personnel come and go. Some programs offer immediate but short-term assistance. Others offer long-term assistance, but the approval process is more complicated. Therefore, a staged plan often is necessary to fulfill the goal of providing housing. As a judge, it is vastly more efficient and effective to simply hand the tenant a referral card than to try to offer advice. Every community is unique, with Judge Gregory J. Donat Tippecanoe different resources and different traditions, Superior Court #4 so each community would need to design Lafayette, Ind. a judicial response to the landlord/tenant GDonat@tippecanoe.in.gov cases to fit its particular situation. But

46

RES GESTÆ • APRIL 2014

every court that handles such cases should undertake to incorporate some method of addressing the delicate issue of eviction in a sensitive and humane manner. The judicial system shares a common interest in assuring that those in need receive appropriate assistance; we must collaborate with public and private agencies to fulfill our shared goals. It is part of our core mission and responsibility to the community we serve, and it also makes our jobs much more pleasant and rewarding. On one occasion we had a group of Russian judges visiting our community, so I arranged for them to sit in my courtroom for a morning. They observed 15 to 20 eviction cases that were the first thing on the docket. When we took a break, my friend who was hosting them said one of the judges was crying. He asked what had moved her to tears. She said, “I’ve never seen anything like that. The judge showed compassion for them and gave them a card where they could get help. Nothing like that would ever happen in Russia.” I am proud to know our program has inspired such a response, and a bonus benefit is the contribution to the judge’s mental health – it relieves the conscience to be able to offer some meaningful recourse to the tenant. The key to the success of the concept is overwhelming community support. The agencies that provide the assistance respect and support the program, particularly the township trustee, who is on the front line of assisting the homeless. Even the apartment owners and managers appreciate the program. Very often a landlord will ask for a card to give to a tenant who is not yet in the legal system. Many landlords often demonstrate great compassion and generosity. It is not uncommon for the parties to reach an agreement much more favorable to the tenant than the law would require. When the tenant asks the court if it is possible to have an extension to surrender possession, I respond “Sure, just work it out with the landlord.” I don’t expect the landlord to provide an extended period of free rent. But if the tenant can compensate the landlord for a short period, most landlords see that as a better option than a sheriff’s writ. The landlord has much more knowledge of the tenant’s history than the court can obtain from a hearing lasting a few minutes. If the relationship has been ugly and contentious, perhaps it is best to sever the landlord/tenant relationship as soon as possible. But if the relationship has been generally harmonious, except for the tenant’s financial problems, it can be in both of their best interests to make the separation as tranquil as possible. You don’t need to go to law school to learn about such issues. I have never met a landlord – who owns a significant amount of (continued on page 43)


Res Gestae - April 2014  

April 2014 edition of Res Gestae, the journal of the Indiana State Bar Association