Archive for the ‘Litigation’ Category

The Indiana Supreme Court didn’t take long to make up their minds in the State of Indiana v. IBM case. I was in attendance at the oral arguments just this morning and the Court has already issued an order (full text below). The Court reversed the trial court’s ruling that could have required Governor Daniels to testify regarding the aborted 2009 Indiana/IBM contract. At least for now, Governor Daniels will not be deposed by IBM.

Justice Rucker inquired of IBM’s counsel what their next step would be in the eventuality of a reversal and IBM wasn’t immediately clear how they would continue. However, I’m sure there will be many more twists before this is done. Trial will now commence in the trial court February 27, 2012. Stay tuned for updates.

Case Background: In 2010, the State of Indiana sued International Business Machines Corp (IBM) for millions of dollars it had paid to the company before their contract was cancelled in 2009. IBM responded by filing a countersuit of breach of contract, totaling $100 million. The trial court ruled that Governor Mitch Daniels cannot be excused from testifying about his knowledge of the contract with IBM. The case bypassed the Appellate Court and was granted transfer to the Indiana Supreme Court in January 2012.


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Mark your calendar…the much-anticipated oral argument in the State of Indiana v. IBM case will take place on Monday, February 13, 2012 at 9:00 am ET.

Arguments are webcast live at: https://mycourts.in.gov/arguments/.

Background: In 2010, the State of Indiana sued International Business Machines Corp (IBM) for millions of dollars it had paid to the company before their contract was cancelled in 2009. IBM responded by filing a countersuit of breach of contract, totaling $100 million. The trial court ruled that Governor Mitch Daniels cannot be excused from testifying about his knowledge of the contract with IBM. The case bypassed the Appellate Court and was granted transfer to the Indiana Supreme Court in January 2012.

More info: U.S. News & World Report

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New filings in Indiana trial courts remain just below the two million mark.  Chief Justice Randall T. Shepard announced the statistic today with the release of the Indiana Judicial Service Report.  He said, “The work of the courts cannot be summed up in numbers, but the 2010 statistics report does offer a snapshot of the volume, breadth, challenges and success stories in each of the courthouses in Indiana’s 92 counties.  Indiana judges and trial court staff did a remarkable job of handling the 1.8 million new cases with fairness and professionalism.”

The number of newly filed cases is just one statistic available in the 1,782 page, multi-volume report, which includes everything from crucial information on court operations to interesting facts about the judicial branch. The report can be found online at http://courts.IN.gov/admin.

  • 1,859,870 new cases were filed in Indiana courts in 2010
  • 1,799,330 new cases were filed in Indiana courts in 2001
  • Indiana courts have seen a 3% increase in the number of cases filed since 2001
  • 205 murder cases were filed in trial courts in 2010
  • 1,514 civil and criminal jury trials were held in 2010
  • 361,969 cases included self-represented litigants
  • There were 41,274 mortgage foreclosure filings in the state
  • Mortgage foreclosure filings increased 39% from 2002 to 2010
  • There has been a 27% decrease in murder filings from 2002 to 2010
  • 12,160 Child In Need of Services, or CHINS cases, were filed in 2010
  • 3,268 individuals served as CASA volunteers
  • There has been a 126% increase in Termination of Parental Rights cases since 2001
  • An interpreter was used in 14,978 trial court cases
  • 147,589 adults and juveniles are being supervised by Indiana court probation departments
  • Cities, towns, townships, counties and the state spent $393,333,305 to operate the courts
  • Filing fees, court costs, user fees and fines generated $232,656,052 in revenue

The Indiana Judicial Service Report and Indiana Probation Report are produced annually by the Supreme Court’s Division of State Court Administration.  The reports are required by Indiana statute (IC 33-24-6-3) and Supreme Court administrative rules.

The Division published the first report with 1976 data as a photocopy of handwritten charts.  Today, the information is gathered electronically and published online with a limited number of CD and hard copy versions printed.  Division Executive Director, Lilia Judson, said the data serves as a guide for policymakers.  “The Division is proud to make this information available over the Internet for lawmakers and the public.  The statistics are published by individual court and by county, with statewide comparative details included.  This makes it easier to review the work of the courts and identify areas where the system can be improved.”

For example, the weighted caseload measurement system is used to help decide how many judicial officers are needed to handle the cases that get filed every year.  Volume 1 of the Judicial Service Report includes details on the measurement system.  It is statistically developed to give relative weights to different types of cases.  For example, a felony case takes more time to resolve than a traffic ticket.  Using the weighted caseload measures, it is estimated Indiana needs 597 court-of-record judicial officers.  The state only had 441 judicial officers.  That means each judicial officer must work at 135% or handle the workload of 1.35 people, in order to adequately process all of the cases filed.

Information on the appellate courts is also available, including:

  • The number of attorneys/judges disciplined by the Supreme Court
  • The number of appellate court opinions handed down
  • The location, month and number of oral arguments held

The Judicial Service Report is made up of Volume 1: Judicial Year in Review; Volume 2: Caseload Statistics; Volume 3: Financial Report.  The Probation Report includes Volume 1: Statewide Summary and Volume 2: Individual Department and County Data.  Indiana Courts In Brief, a 16-page brochure, is also available to provide an overview of all reports.

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The Indiana Supreme Court has granted rehearing in Richard Barnes v. State of Indiana, the May Supreme Court decision that ruled Hoosiers have no right to resist unlawful police entry into their homes. Key points:

1.        Rehearing has been granted.

2.        An opinion has been handed down simultaneously and can be found below.

3.        Oral argument will not be heard.  Please note this is the usual practice in rehearing.  The Court has already been briefed with the petitions for rehearing.  (Meaning the arguments took place via documentation.)

4.        Many have asked about the central question before the Court.  Please see the 6th paragraph of the opinion.  The claim centers on the defense against criminal charges of violence against a police officer during a lawful entry.  Should the jury be told the defendant has a right to violence against police?  The Court says no.

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A petition for rehearing has been filed in the heavily discussed police entry/4th Amendment Barnes v. State case. Barnes’ attorney filed a petition for rehearing on June 9th.  The State has until Monday, June 27 to file a response brief.  After that, no further briefs are allowed.

On May 12, the Supreme Court of Indiana, in a 3-2 decision, held that there is no right to reasonably resist unlawful entry by police officers into a residence.


When the Court has received all briefs in a case the matter is considered “fully briefed.”  The 5 Justices of the Supreme Court will then take the matter under consideration.  The Justices will then rule on the rehearing petition.  There is no timetable for the Court to make that decision.  When the Court makes a decision it is a matter of public record and will appear on the docket.

Rehearing Petition:

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Justices of the Indiana Supreme Court, a 467-page multi-author volume exploring the lives of the 106 Justices of the Court, is now available from the Indiana Historical Society Press.  Edited by Linda C. Gugin and James E. St. Clair, it examines the lives of the 106 men and women who have sat on the state’s highest court.  The book includes an introduction by the Chief Justice of the United States, John G. Roberts Jr.

With 72 authors, the book captures details of the lives of the self-taught, circuit riding Justices from the early days of statehood through the 21st century Justices now serving on the Court.  Photographs, including those from previously unpublished private family collections, complete the edition.  The public can purchase the book at the Indiana Historical Society for $37.95.

The Supreme Court’s educational outreach program, “Courts in the Classroom” (CITC) collaborated with the Indiana Historical Society Press on Justices of the Indiana Supreme Court.  The Indiana Bar Foundation made a grant in support of the project.  CITC’s primary objective is to help educators, students, historians, and interested citizens learn about the history and operation of Indiana’s judicial branch.  As part of its outreach, CITC provides free lesson plans to teachers, interactive programs in the state Supreme Courtroom and publications about Indiana’s legal history.  For more information please contact Dr. Elizabeth R. Osborn at eosborn@courts.state.in.us or visit courts.in.gov/citc.  CITC will offer the book to schools and libraries across the state at no cost.

Chief Justice Randall T. Shepard sees the book as a valuable addition to civics education.   “This book has remarkable historic value,” explained Chief Justice Shepard.  “We are thrilled that students, educators and the public will have this resource that showcases the rich history of the third branch of government.”

The Indiana Supreme Court and CITC previously collaborated with the Indiana Historical Society Press on the publication of Hoosier Justice at Nuremberg ($6.95). The Nuremberg book, by Suzanne S. Bellamy, examines the roles of two Indiana Supreme Court Justices in post-World War II Germany.  In 1947, Justices Frank Richman of Columbus and Curtis Shake of Vincennes were called to serve as civilian judges in the Nuremberg tribunals.

These books and other Supreme Court publications (courts.in.gov/citc/bookstore.html) are available to libraries, teachers and all other educational institutions free of charge.  Requests should be sent to Sarah Kidwell at skidwell@courts.state.in.us.

A Continuing Legal Education program will be offered on Thursday, March 3, 2011 at 3:00 pm in the Supreme Court Courtroom featuring authors from the book.  Reservations are required.  Contact Elizabeth Osborn at eosborn@courts.state.in.us.

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I hope everyone had an opportunity to follow my live-tweets during this afternoon’s State of the Judiciary address. It’s always a great experience to see so many excellent judicial officers in one place (along with Gov. Daniels, Lt. Gov. Skillman and many other Indiana luminaries). Here is the full text of Chief Justice Shepard’s address:

Indiana Supreme Court: 2011 State of the Judiciary

“Burdened but Unbowed”
Chief Justice Randall T. Shepard
January 12, 2011

Governor Daniels and Members of the General Assembly:

One of the features of our national dialogue last summer and fall was skepticism about the capabilities of public institutions and public leaders.  You’d occasionally hear phrases like the “government is broken,” and while people say that in Indiana they didn’t often say it about Indiana.

I think that’s because, even acknowledging the multiple problems that need tackling, the many elements of Indiana government, under the most serious strain most of us can remember, have proven themselves capable of coming to terms with crisis.

So it is with the men and women of Indiana’s courts, who have proven able at diagnosing a defect or identifying an opportunity, recruiting talented people and capable of seizing the moment on the basis of the best ideas available.

The challenges of the moment cover an amazing range.  Like, what do we do when someone who speaks only Laotian shows up in the courtroom?  What can be done to cut the cost of litigation?  How do we deal with the phenomenon of jurors using smart phones?  How do we expand a new system of assessing the effectiveness of individual courts?  How do we provide advocates for the thousands of abused or neglected children?  Are there better ways to regulate lawyer advertising?  How do we advance the cause of equal opportunity in the legal profession?  How do we give a full and fair hearing to litigants when there’s a sixteen percent growth in case filings but only four percent more judges?

The men and women of the Indiana courts tackle all these issues and more, both through long-range strategic planning and through immediate action.  Today I’ll highlight four of these.

The Mortgage Foreclosure Crisis

The first is a genuine crisis on which all three branches of Indiana government have worked:  mass foreclosures.  Foreclosure filings were even higher last year than in 2009.  While Indiana may no longer be near the top of the national list, that’s little comfort to the 43,000 new families facing loss of their homes.

You recently passed legislation giving every homeowner the right to a settlement conference and the chance to negotiate for a modified loan.  The Indiana Foreclosure Prevention Network led by Lieutenant Governor Skillman, the lenders, Attorney General Zoeller, the Housing and Community Development Authority, and our Division of State Court Administration have been perfecting techniques to maximize the possibility of success.

In the beginning, just five or six percent of homeowners responded to the notice offering a settlement conference.  Most people missed it in the blizzard of paper a homeowner receives when a foreclosure is filed.

The judges working on this have discovered that when the court itself sends a separate settlement notice, more than 40 percent of the homeowners respond.  To make sure these conferences are productive, we have assigned settlement facilitators to bring the right people and the right documents to the table.  The facilitators report that many homeowners appear for the settlement conferences embarrassed, resigned, and tearful.  In recent months this system of court-facilitated conferences has been perfected to the point that the number of people who leave the room with a revised loan is half.

We now use these techniques in counties that have 60 percent of the foreclosures and we’ll cover the rest of the state by year’s end.  We do it all without any claim on the state’s General Fund because you’ve authorized a user’s fee on foreclosure cases.

Still, this is a fluid situation.  A week ago Monday, State Court Administration issued a best practices document to all judges outlining case management improvements that maximize the chance for writing a new loan.  Attorney General Zoeller, who has taken a leadership position on foreclosure with the National Association of Attorneys General, has asked the Supreme Court to use its rule-making authority to reinforce these improvements.

There is a need for further legislation, and we’ve outlined our own ideas to possible sponsors.

The Smartest Sentencing Possible

Just a year ago, Governor Daniels, President Pro Tem Long, Speaker Bauer, Attorney General Zoeller, and I all signed the same letter asking that the Council of State Governments and the Pew Center on the States assist the Indiana Criminal Code Evaluation Commission in a thorough review of our state’s criminal corrections.  Just weeks ago, these researchers and the Indiana team working with them issued their proposals, and all the Commission members—legislators, corrections staff, prosecutors, public defenders, and judges—endorsed them.

You will know from the press that the central idea of these proposals is to find better ways to sanction non-violent offenders through local corrections.  Half of the new commitments to the Department of Correction are people whose crimes are in the least serious category.

In my own career I’ve handled felony cases for the theft of $6, and I’ve signed warrants for lethal injection.  In between those polar opposites, making sound decisions about which offenders are so risky that a prison cell is the only right sentence and which offenders may respond well to local alternatives makes all the difference for public safety, recidivism rates, employability of offenders, and the dollars we spend on corrections.

One of the weaknesses in Indiana’s criminal justice system has been that we have mostly used relatively outdated assessment tools to evaluate individual offenders.  Those assessment tools organize and validate common sense and intuition.  Is this offense a defendant’s first or second?  Were any prior offenses minor or serious?   If he’s been on probation or parole before, did he successfully complete it or get revoked?  Is there reason to believe that requiring drug or alcohol treatment might make a difference?

Are we capable of devising a new, more reliable tool to help sort out who needs to go to prison and who probably does not?  The answer’s been yes, and last Monday a new generation risk assessment became mandatory in every criminal court and delinquency court.  We have trained and tested 2300 probation and corrections officers, drug and alcohol staff, and judges in using it.  The Council of State Governments people told the Criminal Code Evaluation Commission’s working group that Indiana is doing a better job at this than any state.

The package of sentencing reforms before you is based on reliable evidence.  I think it’s good for Indiana and I join Governor Daniels in endorsing it.

Tackling Technology

If there’s a field where Indiana’s courts have proven themselves capable of identifying an opportunity or a problem, devising a plan to address it and executing on the plan, it is technology.  Here are some examples.

You’ll know that at your direction, every county now uses a system built by our Judicial Technology and Automation Committee (called “JTAC”) to notify law enforcement immediately when a court enters a protective order on behalf of victims of domestic violence.  Was there a way to help those victims obtain an order without a trip to the courthouse?  We have empowered thirty agencies and 300 victim advocates to apply online.  Is there a way to notify victims about a dangerous moment when the abuser receives the order?  Yes.  Victims will soon be able to receive immediate notice by text or e-mail.

On another public safety front, the question has been how to enforce effectively the laws designated to prevent people who are certified mentally ill and dangerous from purchasing and possessing firearms.  At your direction, JTAC has created an electronic system for notifying law enforcement when someone is adjudicated mentally ill.  Last week alone, names of 39 people adjudicated mentally ill were transmitted through the FBI so that police and gun dealers could do their part in keeping firearms out of the hands of the mentally ill.

Is there something the judiciary can do to improve the collection of taxes?  We collaborated with the Department of Revenue to build a system for transmitting tax warrants directly to local courts.  This time last year, 26 counties were using this system and today there are 47.  We recently issued the millionth electronic tax warrant for collection at the local level.

Is there a way to stop hand-writing traffic tickets so officers spend less time with a pen and more time on patrol?  Yes, and this time last year 143 police departments were using JTAC’s Electronic Citation and Warning System.  In the last year, 60 more have started using it.  Altogether they’ve created 2.8 million citations that would have been written by hand.

All of these solutions to various problems work ever so much more powerfully when they are linked to each other through a court case management system we call Odyssey.  Procured with your blessing three years ago through competitive bidding, we now use it in 77 courts in 26 counties, from large ones like Marion to small ones like Posey, accounting for nearly a third of the state’s caseload.

The power of this combination is something judges and clerks and law enforcement personnel see close up.  Let me tell you about a recent e-mail from a bail commissioner in Fort Wayne, where we are deploying Odyssey.  He was doing a regular check on a defendant out on bail:

Def reported today – on pretrial release for Robbery.

Checked Odyssey per normal supervision course – appeared def had Felony Probation Violation warrant issued out of Huntington County yesterday.  Not on Spillman.  Called Warrants.  Asked them to check IDACS.  Not on IDACS.  Explained to Rita the basis for my call – had seen warrant on Odyssey.  Rita then called Huntington County directly.  They reported that they did in fact want the def.

Did my typical stall until warrants showed up and took him into custody.

Such experiences prompt messages like one we received from Hendricks County, “When can you come install Odyssey?”

We are now installing it twice as fast as last year, and we’re working with clerks and judges in places like LaPorte and Shelby and Steuben and eight or nine others.  Just how fast we can get this all done essentially depends on how many teams we can send to the courthouses and city halls.

We manage to pay for this work with federal grants or with fees paid by court users, presently $7 a case.  We ask that the user fee be temporarily increased to $10 to speed up the installation.  The House voted to approve doing that in the last General Assembly and the Senate Judiciary Committee did likewise by a vote of 9-0.

All of these achievements are the result of collaboration between the judiciary and agencies like the Indiana Office of Technology, the BMV, the Department of Revenue, the Criminal Justice Institute, DCS and the State Police.  None of these could have been accomplished by the judiciary alone or by anybody else alone.

Does this matter to citizens?  If you build it, they will come. Rather than driving to the courthouse or hanging on the phone, our constituents were seeking court information this morning at the rate of more than 3400 an hour.  I’m proud that Indiana’s courts are creating a 21st Century system.

Plain English Jury Instructions

As for making the legal system easier for citizens, let me mention something we finished just a few months ago.

People come to the courthouse by the tens of thousands to make possible that jewel of the Bill of Rights, trial by jury.  During those trials, lawyers and judges explain the law that applies to the case jurors are being asked to decide.  Too often, we have talked to jurors about this in legalese.

Committed to doing better, the Indiana Judges Association began work on what we decided to call “Plain English Jury Instructions.”  The drafting committee, led by Judges John Pera of Lake County and Carl Heldt of Evansville, and an English teacher, spent three years revising the traditional instructions.

The new instructions were issued during the fall.  I’ll give you one of my favorite examples.

Old instruction:

Direct evidence means evidence that directly proves a fact, without an inference, and which if true conclusively establishes that fact.  Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.  An inference is a deduction of fact that may logically and reasonably drawn….

New instruction:

Direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow.  Circumstantial evidence might be the testimony of someone who only saw the animal’s tracks in the snow.

How Good is What We’re Doing?

On jury instructions, the chief justice of a southern state called last fall to say that their judges had decided to do something and that experts in the field had told her: “Call Indiana.”

The chief judge of a large federal court in the north called to say he was thinking about allowing jurors to ask questions during trial and he’d heard that Indiana seemed to have it right.  I told him what we were doing and sent him to Judge Robert Altice of the Marion Superior Court.

The Council of State Governments gave JTAC’s project called InCite an Innovation in Government Award, and the Kennedy School at Harvard gave its work on e-tickets a “Bright Idea” award.

Judge Greg Donat won the nation’s leading honor for devising ways to help citizens who have to navigate the legal system without a lawyer.

The American Bar Association said that our Courts in the Classroom project on civics was one of the best in the country.

The chief justice of a western state stopped me at a conference to say that the members of his court had debated at length whether they should adopt an opinion on medical expenses written for us by Justice Sullivan.  And a leading national expert on alternative criminal sentencing, a retired judge from California, told me that Justice Dickson’s opinion on using risk assessment tools was the best piece in the country on the subject.  Judge Kirsch’s opinion on robo-signing in mortgage foreclosures has recently been cited in many places.

In short, Indiana’s judiciary is one that keeps its feet planted firmly on Hoosier soil while keeping its eyes on the horizon.  They are men and women of high ambition who are capable of confronting a problem, devising a plan, and executing on the plan.

Why Does This Matter?

Whether we can build a better system of justice matters first and foremost to the individual citizens who come to court as part of the two million cases we hear every year.  Our first duty is give them a full and fair hearing.

But whether we run a respectable court system also matters for people who have never seen the inside of a courtroom because a reliable court system is part and parcel of a decent government and a crucial element of a healthy and productive economy.  I was reminded of this economic connection while driving to work last week.  I heard an interview with the author of a new book on the economic miracle of today’s India.

The interviewer asked about what he called the differing narratives of India and the United States.  The United States, said the reporter, has always thought of itself as a place of unlimited future opportunity but now wonders whether it will be such a nation in this new century.  India, long held back by caste and class, is now written about as the wave of the future.  Is India, the reporter asked, “The New Land of Opportunity?”

You’re right about the story line, said the author, but in both countries we tend to overplay the story line of the day and underplay the fundamentals:

In America, you take something like American universities, for example; you take the Silicon Valley phenomenon; you take the way the American legal system functions.  These are century level advantages.  It will take other people a very, very long time to replicate any of these.

In short, the message was that if we do what it lies within us to do, places like India and China aren’t going to catch Indiana for a very, very long time.

I promise you we’re building a court system that does its part to make that so.

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