Res Gestae - May 2014

May 2014 Vol. 57, No. 9

BEST PRACTICESIN DOCUMENT DESIGN

AWARD NOMINATIONS SOUGHT

IMPROVE YOUR FITNESS BY MOVING!

THE NOT-SO-CONFIDENTIALCONDITIONAL AGREEMENTFOR DISCIPLINE

EDITORSusan J. Ferrer

[email protected]

GRAPHIC DESIGNER & PHOTOGRAPHER

Vincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. Ramsey

[email protected]

5 PRESIDENT’S PERSPECTIVEJim Dimos, Indianapolis, 2013-2014

30 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

35 RECENT DECISIONS 2/14Curtis T. Jones and John Z. Huang, Indianapolis

41 CRIMINAL JUSTICE NOTES 2/14Jack Kenney, Indianapolis

46 FAIR COMMENTRandall K. Craig, Evansville

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 forpossible 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.

The Journal of the Indiana State Bar Association

RES GESTÆMay 2014 Vol. 57, No. 9

D E PA R T M E N T S8 LEADERSHIP

24 DOCUMENT DESIGN

RES GESTÆ • MAY 2014 3

F E AT U R E S

8 COL. KOZLOWSKI: ‘BEING A LEADER BOILS DOWN TO ETHICS’By Bill Brooks, Indianapolis

11 NEXT BUSINESS SCHOOL FOR LAWYERS STARTS AUG. 22

16 ACHIEVEMENT AWARD NOMINATIONS SOUGHT

24 WORDWISE: BEST PRACTICES IN DOCUMENT DESIGNBy Prof. James D. Dimitri, Indianapolis

21 ESSAY CONTEST 34 FIT TO PRACTICE 44 CLASSIFIEDS

34 MOVE!

RG 05.14_RG 09.05 5/19/14 4:53 PM

“Laws, like sausages, cease to inspirerespect in proportion as we know how they are made.” – Lawyer-poetJohn Godfrey Saxe*

Article II of its Articles of Incorpora-tion states that the purpose of theISBA is, in part, to “encourage and

promote reforms in the law … secure themore efficient administration of justice …[and] endorse and encourage reforms in legis-lation.” The ISBA and its sections and com-mittees undertake this charge in a variety of ways, through the filing of amicus briefs,commenting on proposed rules, and lobbyingboth the executive and legislative branch. The Association focuses its activities on issueswhere lawyers can provide technical expertiseor which directly affect lawyers. On certainoccasions, the State Bar speaks as a body to urge the adoption or defeat of a particularpiece of legislation. However, most of thiswork is done through the sections and com-mittees of the ISBA, where the technicalexpertise resides.

Guided by Paje Felts, our in-house legislative counsel, sections and committeesmonitor legislation and recommend to Pajewhether their section or committee, or theISBA itself, needs to speak on a particularpiece of legislation – either to support, modifyor oppose it. In addition, our sections andcommittees develop their own ideas and lan-guage for legislation. In those instances, thesection or committee works with an interestedlegislator, the Legislative Services Agency andPaje to draft a bill for consideration by theGeneral Assembly.

Our sections and committees may under-take a comprehensive review of existing lawand work with legislators to draft bills thatmake numerous changes to the existing statu-tory framework. During this last session, theISBA actively supported three pieces of legis-lation that made sweeping changes to the lawon the transfer of real property (SEA 249), the probate and trust code (SEA 36) and thelaw of guardianship (SEA 59). These types of efforts take years of planning, drafting and education to provide the legislature with the confidence to adopt these bills.

Other times, the ISBA supports legisla-tion addressing specific issues. For instance,the ISBA brought forth the idea for SEA 19,

which created exceptions to the confiden-tiality of juvenile court records to allow limited access in proceedings related to paternity, custody, parenting time and child support issues, and SEA 180, whichestablishes a veterans disability clinic fund to provide grants to Indiana law schools that maintain a veterans disability clinic.

And some of the legislation we supportedis even considered groundbreaking on thenational front. This year the ISBA put itsweight behind HEA 1121, which requires allIndiana administrative law judges to be attor-neys. Further, there will be ethical and proce-dural rules established to ensure confidenceand predictability in our state’s administrativeprocedure.

Besides at the Statehouse, the ISBA hasalso represented Indiana’s lawyers to mem-bers of Congress. Annually, our leadershipparticipates in ABA Day on the Hill, wherestate bar leaders visit their congressional delegations to discuss issues important to theprofession. Last year, we urged members ofCongress to provide adequate funding for thejudiciary and the Legal Services Corporationin light of the pending sequestration. Thisyear, in addition to again requesting fundingfor the Legal Services Corporation, whichwould have a direct impact on Indiana of an additional $1 million, we addressed a proposed change to the tax law that wouldrequire law firms and other professional services firms with annual revenues of $10 million or more to adopt the accrualmethod of accounting.

The proposed tax reform legislationwould impose substantial new financial burdens on lawyers. Specifically, the proposalwould require lawfirms and otherpersonal servicesbusinesses withannual grossreceipts of morethan $10 millionto use the accrual

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

Indianapolis, IN 46204317/639-5465 • 800/266-2581

317/266-2588 fax • [email protected]://www.inbar.org

OFFICERSPresident James Dimos, Indianapolis

President-Elect Jeff R. Hawkins, Sullivan

Vice President Carol M. Adinamis, Carmel

Secretary Robyn M. Rucker, Valparaiso

Treasurer Hon. Susan Orr Henderson,Covington

Counsel Steven M. Badger,to the President Indianapolis

BOARD OF GOVERNORS1st 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

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara M. Whaley • [email protected]

Associate Executive DirectorSusan T. Jacobs • [email protected]

Administrative AssistantJulie A. Gott • [email protected]

Director of CommunicationsSusan J. Ferrer • [email protected]

Director of Public Relations & Social MediaCarissa D. Long • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Section ServicesMaryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

CLE & Special Projects DirectorCheri A. Harris • [email protected]

CLE & Special Projects CoordinatorChristina L. Fisher • [email protected]

Local & Specialty Bar LiaisonCatheryne E. Pully • [email protected]

Administrative AssistantKimberly D. Latimore • [email protected]

Director of Meetings & EventsAshley W. Higgins • [email protected]

Membership Records & Technology CoordinatorKevin M. Mohl • [email protected]

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

Graphic Designer & PhotographerVincent Morretino • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected]

� RES GESTÆ • MAY 2014 5

PRESIDENT’S PERSPECTIVEJIM DIMOS

[email protected]

Sausage making

(continued on p. 7)

RG 05.14_RG 09.05 5/21/14 10:08 AM

method of accounting rather thanthe traditional cash receipts anddisbursement method. The pro-posed reform could result in lawfirms paying taxes on income thatthey have not yet received and may never receive. Moreover, thelegal profession would suffer evengreater financial hardships thanother groups because many lawyersare not paid by their clients untillong after the work is performed. In January, I wrote to members ofthe Indiana congressional delega-tion, expressing concern over theaccrual tax proposal, and in April I had the opportunity to discuss theissue with many of the delegationmembers in visits on Capitol Hill.There was a respectful and infor-mative exchange of ideas on bothissues and a true appreciation of theopportunity to hear each other’sviewpoints.

The members and the staff ofthe ISBA take seriously the chargeto speak on behalf of Indiana’slawyers. Countless volunteer hoursare spent to research and developarguments or legislation that oursections and committees believewill improve the operation of ourlegal system. It is one of the manythings about membership in theISBA that our members value. If you have an idea, do not hesitateto share it with the appropriate section or committee. Even moreso, if you would like to help takeyour idea toward fruition, getinvolved in a section or committeeand help make change happen.While the sausage making isn’talways pretty, it can be fulfilling. �* I know you want to tell me that this quote or

a variation is properly attributed to Otto VonBismarck. However, in his March of 2009 postingat the Freakonomics blog of The New York Times,Fred Shapiro discussed the quote and noted:“This is usually attributed to Bismarck, but theIron Chancellor was not associated with that quip until the 1930s. The Daily Cleveland Herald,March 29, 1869, quoted lawyer-poet JohnGodfrey Saxe that ‘Laws, like sausages, cease to inspire respect in proportion as we know howthey are made,’ and this may be the true origin of the saying.”

ISBA Annual Day of Service Sept. 20

Who: Attorneys and judgesfrom local bar associations

throughout the state of Indiana

What: Attorneys and judges fromacross the state will come togetherin their respective counties toengage in hands-on communityservice. From cleaning up localneighborhoods to volunteering at local shelters, attorneys andjudges will have the chance to be a part of a new movement in theIndiana legal community as theyparticipate in the second AnnualDay of Service. The Annual Dayof Service was initiated by theISBA Service Committee, a stand-ing committee of the ISBA estab-lished in 2012.

When: Sept. 20

Where: ISBA district liaisons willwork with local bar associationsto coordinate efforts in everycounty for the Annual Day ofService. Different activities mayinclude volunteering at a localsoup kitchen or homeless shelter;providing painting or cleanup services for local neighborhoodsin need; or assisting the Red Crossor Salvation Army.

Why: The ISBA Service Commit-tee champions hands-on, non-legal community service, with the goal to inspire attorneys to get their hands dirty by weedingcommunity gardens, cleaning uptheir local parks, adopting streets,building homes and aiding in disaster relief.

On the first-ever Annual Dayof Service last year, the ServiceCommittee organized eight pro-jects in six counties and had morethan 60 judges and attorneysshow up to volunteer. The goal is to make this event bigger and bigger every year. EmailCatheryne Pully at the ISBA withquestions, [email protected]. �

It’s not justMcInerny’s viewDear Editor:

After reading SethThomas’ interesting take on Ind. Code §34-11-2-11.5in the April Res Gestae, it ledme to revisit the issue of justwhat constitutes a statute of limitations. Black’s LawDictionary, 7th Ed., defines“statute of limitations” as “1. A statute establishing atime limit for suing in a civilcase, based on the date whenthe claim accrued (as whenthe injury occurred or wasdiscovered).” Mr. Thomas’position is that I.C. §34-11-2-11.5 allows all (his empha-sis) ELA and USTA claimsfiled after May 10, 2011,regardless of when the claimaccrued. To me (and appar-ently Black’s), a law thatauthorizes the filing of allsuits of a certain nature,rather than establishing a limitations period for thefiling of such suits, wouldrepresent the antithesis of a statute of limitations.Given the above definition, I stand by the premise in myMarch 2013 Res Gestae arti-cle that a statute, even onecloaked in the garments of a statute of limitations,which contains no limita-tions period and no accrualtrigger, is not a statute oflimitations. Clients (or theirattorneys) struggling withthese issues are welcome to contact me.

Daniel P. McInernyIndianapolis, [email protected]

ATTEN

TION

PRESIDENT’S PERSPECTIVEcontinued from page 5


RG 05.14_RG 09.05 5/21/14 10:08 AM

As two previous LeadershipDevelopment Academyclasses have learned,

the Muscatatuck Urban TrainingCenter is a revelation – a serious-as-life training ground for firstresponders and the more military-minded – but also to more casualattendees such as young lawyers, it’s a bit of an amusement park for grown-ups.

But this year, members of class number three ended up beingstrangers in an even stranger land,where things went boom in thenight and they had a chance to portray disaster victims, and wherethe annual paintball game wasplayed out with a backdrop rightout of “Apocalypse Now” with thewhop-whop-whop of Blackhawkhelicopter blades and rocket fireilluminating the night sky.

As for the disaster drill, theclassmates in the Indiana State BarAssociation program portrayed victims of a chemical attack for agroup of Kentucky first responders.(And, thanks to the exuberance ofthe lawyer volunteers, the drill’straining personnel said it was theirbest such exercise ever.)

It was an exercise that wasn’ton the original agenda, but it servedas a first-hand demonstration whythe Muscatatuck facility operatedby the Indiana National Guard isunique in the world, attractinggroups this particular April week

as diverse as Navy SEALS, Canadian“special ops” troops and firstresponders from Ohio as well asKentucky. The southern Indianafacility was also host that week to the NATO Urban OperationsConference.

Muscatatuck, once a state facil-ity for people with developmentaldisabilities, had been made overinto the urban training facility that,as one staff member said, can pro-vide a venue for any type of disas-ter, either man-made or natural.

The fabled Navy SEALS “reallylike this place,” said the facility’sdirector, Lt. Col. Barry Hon. Hepointed out that the facility’s suc-cess is not only due to its uniqueofferings, but also because it’s con-sumer-friendly. “It’s not only theplace, it’s the people,” Hon added.“If it wasn’t for their unique andgreat capabilities, we wouldn’t begreat.”

The Leadership DevelopmentAcademy classmates also heardfrom Brig. Gen. Wayne Black, assis-tant adjutant general of the IndianaNational Guard, who even attendedthe early morning “PT” led byIndiana Supreme Court JusticeSteven David, himself a veteran of the U.S. Army.

Black outlined aspects of theIndiana National Guard not oftenconsidered by the public – 15,292total employees, of which 13,192are military personnel, 2,209 ofthose full-timers. That all adds upto a $385 million annual budgetwith more than $2 billion in infra-structure.

Not only is the IndianaNational Guard the nation’s fourthlargest, it’s the largest by a widemargin in terms of Guardsmen per capita. One benefit, Gen. Blacksaid, was that “we have a myriad ofskill sets – business leaders, farmers,lawyers, accountants. That’s whatmakes us unique. You name it, and

we have a supply of it in theIndiana National Guard.”

The LDA’s April session was a primer in both National Guardoperations and military leadership.Among the other details thatemerged: The Guard recently completed a multi-year agribusi-ness development program inAfghanistan and is partnered withboth Israel and Slovakia and hopesto develop a similar such arrange-ment with Kenya.

Another National Guard initiative is the Hoosier YouthChalleNGe Academy, which oper-ates in the former Indiana Soldiers& Sailors Children’s Home inKnightstown. The facility servesyoung people between the ages of16 and 18 who have dropped out ofhigh school or are severely deficientin credits. The quasi-military for-mat seeks to bring structure anddiscipline to the volunteer partici-pants.

In what has become an annual highlight of the LeadershipDevelopment Academy, six of thestudents told their own stories,including how the Knightstownprogram had changed their lives.The following lunch paired the students with groups of younglawyers to further the exchange.

The LDA participants alsolearned about veterans courts, withthe Hon. Maria Granger, judge ofFloyd Superior Court, leading themulti-disciplinary group of peoplewho work with the problem-solvingcourt. Granger said she could spotveterans who appear in her courtbecause “they stand at attention,respectfully – but with blank looks in their eyes.” She said the veteranswere victims of “the invisible war,”suffering from post-traumatic stresssyndrome or depression or druguse.

The veterans court contingentincluded Harrison County Prosecu-tor Otto Schalk, who called the pro-

LEA

DER

SHIP

DEV

ELO

PMEN

T A

CA

DEM

YCol. Kozlowski: ‘Being a leader boils down to ethics’

By Bill Brooks

8 RES GESTÆ • MAY 2014

NED P. MASBAUM, M.D.Board Certified Forensic Psychiatrist

Web site: www.FORNPSYCH.com

• CONSULTATION

• EVALUATION

• EXPERT WITNESS TESTIMONY

• RECORD REVIEW

• CIVIL

• CRIMINAL

• WORLDWIDE AVAILABILITY

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

RG 05.14_RG 09.05 5/19/14 4:53 PM

gram a tremendous tool in makingsure troubled vets “had everythingthey needed to transition to civilianlife. For people who have been in awar, 30 days of jail time is not effec-tive. We have to be creative.” Headded that research indicates thatmore soldiers die from hypodermicneedles than battle wounds. “Thereis no excuse for a society to let thathappen,” he said.

Added Granger, “The root of their behavior is not criminalintent; it’s a mental health issue.”

Lisa Glickfield, a publicdefender, said the program hasbeen successful in reducing recidi-vism through behavior modifica-tions. “And it’s refreshing to be partof a team where everybody cares.”

The LDA’s visit to Muscata-tuck included what has also become

a highlight of the leadership program – a talk by Col. DanielKozlowski, a Judge AdvocateGeneral officer and senior legaladvisor to Muscatatuck and CampAtterbury.

“Leadership is not generally a natural attribute for lawyers,” said Kozlowski, whose ebullientnature would allow him a careerselling ethical behavior on QVC.“The lawyer is viewed as a lonewolf, a gunslinger. But dig deeperand you see that leadership is a keyaspect of what we do.” He told theyoung lawyers that, sooner or later,they would find themselves as theadvisor to a very important leader.“By proxy, the issue of leadership isgoing to come up. That leader willrely on your advice, your counsel.”

Kozlowski’s theme is this:“Failure is part of the learningprocess – so do not be so afraid tofail that you fail to act.” He added,“Any lessons I’ve learned of realvalue have come from making mistakes. Our mistakes are whatteach us.

“Being a leader boils down toethics,” he said. “It’s about doingthe right thing when it’s going tocost you.” He advised the LDAclassmates to ask themselves whatthey really stand for. “Think aboutit now. That’s how you can be an ethical leader, by preparing for the choices.” And he offered onefurther piece of advice on how to succeed as a leader:

“Look for the tough job, the one nobody wants.” �


The ISBA Leadership Development Academy at the Muscatatuck Urban Training Center

Phot

o by

Vin

cent

Mor

retin

o

RG 05.14_RG 09.05 5/19/14 4:53 PM

The Indiana State Bar Association is excited to announce the launch of its Solo & Small Firm Conference app!

To download, search for Indiana State Bar Association at the iTunes App Store or at Google Play. Once downloaded, you will have access to both the ISBA and Solo & Small Firm Conference apps.

10:15 AMAT&T LTE

10:15 AM10:15 AM

Membership Sections &Committees

ISBAe-Directory

Res Gestae Addendum CLE Calendar

AT&T LTE 10:15 AM

CLE

ISBAe-Directory

CLE Calendar

CLE

ISBA SOLO & SMALL FIRM CONFERENCE ISBA SOLO & SMALL FIRM CONFERENCE French Lick Resort • June 5-7, 2014

10:15 AMAT&T LTE

AT&T LTE 10:15 AM

ISBASOLO & SMALL FIRM

CONFERENCE

French Lick ResortJune 5-7, 2014

10:15 AM

SOLO & SMALL FIRM CONFERENCE

French Lick Resort

ISBA Solo & Small Firm Conference AppView schedule by day, topic, speaker

Access program materials

Connect with other attendees

Contact sponsors & exhibitors

View French Lick Resort floor plans & area map

And so much more!

Access app over the Internet: http://crowd.cc/ssfc

10:15 AM

ISBA Solo & Small

Access app over the Internet:http://crowd.cc/isba

ISBA General AppFind out about upcoming

CLE & social events

Read Res Gestae & Addendum

Connect with ISBA staffers

Access the ISBA Boardof Governors directory

Contact Section & Committee chairs

View ISBA member benefits

Connect with ISBA onFacebook, Twitter & LinkedIn

And so much more!

Access app over the Internet: http://crowd.cc/isba

In 2011, the State Bar’s BusinessLaw Section had a vision of providing curriculum to

address significant business con-cerns of practicing lawyers andbegan working on a Business Schoolfor Lawyers. The ISBA partneredwith Butler University Corporate & Executive Education, a divisionof Butler University’s College ofBusiness, to develop and deliver the series, which is not conductedin a typical CLE format.1 Now,three years later, the State Bar andButler are getting ready to offer thishighly regarded series for the thirdtime this fall.

Remaining competitive in astill volatile legal market requires a law firm to have a clear strategicvision, the skills and techniques toturn strategy into reality, and theability to adapt to and endure bothinternal and external change. Whoare best prepared to lead law firmsthrough these steps? Lawyers and lawfirm managers who have strategiesto address current economic chal-lenges are the ones who can suc-cessfully lead change, inspire inno-vation and manage increasinglycomplex business issues.

In light of the multipledemands on your time andresources, the decision to invest in an in-depth series like thisrequires careful consideration. It is worth noting the following:

1. This series is designed to providetwo-fold value to your career by posi-tioning you to make better businessdecisions in your own practice whilealso giving you knowledge and experi-ence to better understand and advisebusiness clients.

2. Interested lawyers can take anycombination of the sessions offered in this series as each session is designedto provide value independent of theothers.2

3. An attorney who takes all fivesessions will earn a Certificate ofBusiness Administration from ButlerUniversity. ISBA members who sign up

for all five sessions also get a discountof $250 off the price of the full series(compared to the price of paying foreach session individually).

Evaluations of the secondseries, which is currently inprogress, have been strong. Courseattendees responded to the ques-tion “What part of the CLE did you find most useful?” as follows:

• “It’s very beneficial, especially to attorneys without a business back-ground.”

• “The analysis process”

• “All, always learn so much, real situations discussed”

• “Practical implications, decision-making for managing employees, and culture change discussion”

• “Importance of motivating anddeveloping [my] staff, admin andpeers”

To help gauge the ongoingvalue of the program, the ISBArecently asked participants inISBA’s first Business School forLawyers to reevaluate the programand describe any long-term effects

it has had on them. We spoke with three attorneys who earned the Certificate of BusinessAdministration in 2012: Candice D. Armstrong, a solo practitioner in Newton County; Kevin W. Betz,founding attorney of Betz & Blevinsin Indianapolis; and Sean M. Clapp,managing member of ClappFerrucci in Fishers.

Both members of small firms,Betz and Clapp each indicated thatthe investment of time and moneywas “absolutely” well spent. As asolo attorney, Armstrong describedthe opportunity as “truly a valuableexperience (well worth the timespent away from the office).”

Who should attend the Business School for Lawyers?

Clapp believes “any attorney,whether a sole practitioner, a man-ager of a firm or an associate,” willbenefit from developing a betterunderstanding of business princi-ples. Betz would “highly recom-mend” the course to “anybody whoaspires to lead, manage and grow a law firm, whether small, medium

ATTEN

TION

Next Business School for Lawyers starts Aug. 22


California MattersIf you have matters in California or referrals, we canhelp you. Please contact Guy Kornblum or his office for information.

In addition to litigation and dispute resolution services, Guy also serves as an expert witness in legalmalpractice and cases relating to insurance claims.

Guy is a native Hoosier and alumnus of Indiana University. He is a member of the Indiana and California bars, and certified in Civil Trial & PretrialPractice Advocacy by the National Board of Trial Advocacy.

Kornblum, Cochran, Erickson & Harbison, LLP1388 Sutter St., Suite 820, San Francisco, CA 94109

Tel: 415.440.7800 • Fax: [email protected]

Serious personal injury & wrongful death • Insurance coverage & bad faithProfessional liability • Business disputes • General civil litigation

For further discussion, contact David McNamar, of counsel to the firm,at [email protected] or 317.299.0160.

www.kcehlaw.com

Guy Kornblum is also available as a mediator.

(continued on page 12)

Course descriptions on p. 14

RG 05.14_RG 09.05 5/19/14 4:53 PM

or large, or who finds themselves inthe midst of leading, managing andgrowing a law firm.”

According to Armstrong, a former associate at Sidley Austinin Chicago turned solo practitioner,“There is something for everyone to gain” from taking the course –“from solo to large firms and small business to a corporate environment.”

A unique course with ongoing value

Compared to other CLE programs, Clapp noted that theBusiness School for Lawyers provided “more of a collaborativesetting in which the participantshad discussions with the profes-sors and dialogued about experi-ences, challenges and successes.” As a result, he said, “We learned

from each other as well as the professors.”

Armstrong recently pinpointedthe distinction, stating “the combi-nation of Butler professionals withpeer-to-peer learning in a hands-onway presents a unique opportunityto explore business concepts.”

The difference described by Betz was that “instruction andexecution of the course took placeat such a high level.” He also cited“the well-thought-out nature of thecourse and expertise of the lectur-ers.” Particularly impressed by lectures by Dick Fetter, whom Betzdescribed as “a superstar amongsuperstars,” Betz took to heartFetter’s mandate: “If you want torun a business, you must grow abusiness.” Betz continued, saying:“I absolutely loved the program. I thought it was tremendously welldone, combining academic analysiswith practical thought. The discus-sion among participants was reallyhelpful and confirmed that we’re all facing the same problems.”

Positive and lasting impact

“Personally,” Armstrong said,“I found application to my smallfirm, another business I own andwith respect to my businessclients.”

Noting that “law schooldoesn’t teach how to run a busi-ness or many of the intricacies ofhow businesses operate,” Clapp

BUSINESS SCHOOL FOR LAWYERS continued from page 11


At the Indianapolis area’s largest locally owned

national bank, we believe in giving our clients

the privileges they deserve. Privileges like

exceptional personal service, in-depth

knowledge, and timely responsiveness.

Our private bankers make it a priority to

meet your specific needs. So please call

Linda Allen at 261-0330 to set up

an appointment today. Because

working with you is our privilege.

©2014 The National Bank of Indianapolis www.nbofi.com Member FDIC

P R I V A T E B A N K I N G

Linda AllenVice President, Private Banker

NMLS #473835

IT’S OUR PRIVILEGE TO SERVE YOU.

We handle or assist on all types of civil appeals in state courts,

from consulting with trial counsel to brief writing and oral argument.

Clements Legal Group LLCwww.clementslegalgroup.com317.426.0581 • 260.267.0581

Indiana Appellate Review

RG 05.14_RG 09.05 5/19/14 4:53 PM

suggested, “If your practice involvesrepresenting businesses, it is impor-tant to understand the details andchallenges faced by businesses.”Clapp described the ongoingimpact on his practice, saying:

This set of courses provided infor-mation and knowledge that enabledme to be better prepared and to better understand various businessissues my clients face. As the manag-er of my firm, the courses were veryhelpful in getting me to think aboutaspects of my business that I haven’tconsidered before and to implementchanges to help our firm run betterand be more profitable.

Betz refers to three major areasof change he has made since takingthe series:

1.How I manage and lead my staffand fellow attorneys;

2.How I have developed metrics or measurements to track and monitornew business; and

3. Innovations and other ideasimplemented to grow business.

Conclusion

The State Bar’s Business LawSection set out to provide a busi-ness education that would improvea lawyer’s ability to make well-rea-soned decisions about growing hisor her firm and to discuss businessmatters at a higher level of under-standing when advising clients. It appears they have succeeded in that task.

Sean Clapp found the series so valuable that after he took it in2012, he convinced his partner totake the series the next time it wasoffered. Candice Armstrong hassuccessfully grown her businesssince taking the course and says:

I look forward to attending the minisessions offered at this year’s ISBASolo & Small Firm Conference

in June to explore new applications as my practice has grown since I received my Certificate of BusinessAdministration from the program.

Take this opportunity torefresh your approach to businessmanagement. Preserve and growyour firm’s long-term stayingpower in the legal market, andmaximize your career success bysigning up for the next series ofcourses at www.inbar.org. Classesbegin in August. �1. Developed by the Butler University College of Business to teach business acumen to attor-neys, a significant portion of this series is not focused on substantive law, but is eligiblefor Non Legal Subject Matter credit (NLS).Indiana’s rule on mandatory continuing legaleducation caps the amount of NLS credit that can be applied to meet the requirementsat 12 hours per three-year education cycle.

2. Attendees will benefit most from attendingboth Business Development I and BusinessDevelopment II; however, Business Develop-ment I is not required in order to sign up forBusiness Development II. They are mutuallybeneficial but not interdependent.


RG 05.14_RG 09.05 5/19/14 4:53 PM

Session 1, Aug. 22 – StrategicThinking for Lawyers:Having a strategy and

employing strategic thinking have a significant impact on law firmsuccess and are crucial to settingthe long-term direction of anyorganization. It is hard to look at the big picture or conduct long-range planning when our time is filled with the daily tasks of run-ning a law practice. The goal of this session is to introduce strategicthinking and analysis to attorneysand demonstrate its value, andlearn how to carve out time tospend on this essential activity. (6 hours NLS credit)

Session 2, Aug. 23 – Ethics & Business Development I: Thissession provides a comprehensiveoverview of the components of abusiness development plan, alongwith action strategies to help youdevelop and implement your plan.

This outcome-oriented sessionfocuses on business-developmentactivities targeted specifically at law firms. (6 hours Ethics credit)

Session 3, Sept. 19 – FinancialAccounting & Tax Reporting:The goal of this session is to intro-duce important financial, manager-ial and tax reporting concepts thatare relevant to law firms. Learn theprimary objectives of a law firm’sfinancial and tax-reporting system,including: (1) measuring and safe-guarding assets; (2) determiningincome or loss to allocate and dis-tribute to partners; (3) providinginformation to help managementevaluate performance, control costsand plan for the future; (4) generat-ing information that will help man-agers, partners and creditors inmaking business decisions; and (5)complying with federal and statetax reporting requirements. (1.5hours CLE & 4.5 hours NLS credit)

Session 4, Oct. 24 – Ethics &Business Development II: After abrief recap of Session 2’s overviewof business development, Session 4narrows the focus to emphasizefour high-impact approaches.These include: (1) the role of trustin business development; (2) devel-oping one’s selling skills in a profes-sional services setting; (3) theimportance of actively managingclient loyalty; and (4) building afirm’s brand as an integral part ofits business development strategy.By the end of the session, not onlywill you have learned about trust,personal selling, client loyalty andbranding, but you will have alsocompiled action-oriented templatesto guide you in putting what youhave learned into place after youreturn to your firm. (6 hours Ethicscredit)

Session 5, Oct. 25 – Develop-ing a Law Firm’s Human Capital:The goal of this session is to intro-duce leadership and human-capitaldevelopment techniques anddemonstrate how an attorney canuse these techniques to help man-age the daily activities of a firm andprovide longer-term opportunitiesfor employee development. ButlerUniversity College of Business hasidentified a number of core leader-ship capabilities and will zero in onthe most crucial ones. Developingthese capabilities will help you havemore productive workdays, moti-vate coworkers, evaluate your staff,avoid personnel problems beforethey emerge, and understand howto set personal and organizationalgoals. (1.5 hours CLE & 4.5 hoursNLS credit)

Contact Cheri Harris, [email protected], or MaryannWilliams, [email protected], at the State Bar for more informa-tion, 800/266-2581. �

ATT

ENTI

ON

Business School for Lawyers: fall schedule


RG 05.14_RG 09.05 5/19/14 4:53 PM

Nominations due Aug. 11

The following awards willbe presented at the StateBar’s Annual Meeting in

Indianapolis in October. For moreinformation and/or nominationforms, contact the ISBA at 317/639-5465 or 800/266-2581. Nominationforms will also be available asdownloadable PDF files at the ISBA website, www.inbar.org.

CIVILITY AWARDSSponsored by the Litigation Section

The ISBA Litigation Section’sCivility Awards recognize an attor-ney and judge for outstanding civility and professionalism in theirdealings with fellow judges, attor-neys, parties, witnesses and thepublic. In addition, the DefenseTrial Counsel of Indiana selects a plaintiff’s attorney, and theIndiana Trial Lawyers Associationselects a defense attorney.

Send your nominations to:

Maryann WilliamsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactMaryann at [email protected].

GALE M. PHELPS AWARDSponsored by the Family & Juvenile Law Section

The Gale M. Phelps Award is named in memory of Gale M.Phelps, a former chair of the ISBAFamily & Juvenile Law Section andone of the most active members ofthe section, who passed away in2003. Factors considered in theselection of the recipient reflectGale’s contributions to the familylaw legal community and include:

• Exceptional service to the profession: unsolicited mentoringto new attorneys, reaching out toother lawyers, and working withattorneys on an individualizedbasis;

• Highest level of competence/improving the profession: review-ing legislation and shaping familylaw policies, contributing to educa-tional seminars, serving in leader-ship positions for legal and nonle-gal organizations;

• Raising the level of profession-alism and civility in domestic rela-tions matters: going beyond theclient’s basic needs, maintainingrespect for the court system and its participants; and

• High moral character and ethical standards




GP HALL OF FAMESponsored by the General Practice,Solo & Small Firm Section

Nominees must practice assolo practitioners or in a small firmand be members of the IndianaState Bar Association. The selectioncriteria emphasize contributions toclients, the profession and the com-munity. There is no longevityrequirement. County bar associa-tions throughout the state will becontacted and encouraged to nomi-nate outstanding solo and smallfirm lawyers from their individualcounties.

Those making nominations areencouraged to submit up to five let-ters in support of the nomination,but no more than five letters will beaccepted. The intent is to avoidturning the selection into a letter-writing or popularity contest.




RABB EMISON AWARDSSponsored by the Diversity Committee

The Rabb Emison Awards,named for its first recipient in theindividual category, recognizes anindividual and an organization thathave demonstrated a commitmentto promote diversity and/or equali-ty in the legal profession and in themembership of the Indiana StateBar Association.


Christina FisherIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactChristina at [email protected].

OUTSTANDING JUDGE AWARDSponsored by the Young Lawyers Section

The ISBA Young LawyersSection is accepting nominationsfor this year’s Outstanding JudgeAward. The criteria for the awardare as follows:

1. The nominee provides sub-stantial education or mentoring to young lawyers.

2. The nominee fosters civilityamong those attorneys who prac-tice before the bench.

3. The nominee epitomizes the core values of our profession –honesty, competence and respectfor the judicial system.

4. The nominee has a recog-nized reputation for providing service to the local community.

Send your nomination to:

Carissa LongIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

ASS

OC

IATI

ON

NEW

S

Achievement award nominations sought


RG 05.14_RG 09.05 5/19/14 4:53 PM

The names of those submittingnominations for consideration shallbe kept confidential to avoid anyappearance of impropriety. Onlycurrent judges are eligible for thisaward.

For more information, contactCarissa at [email protected].

WOMEN IN THE LAWRECOGNITION AWARDSponsored by the Women in the Law Committee

State Bar members are invitedto nominate an attorney for theWomen in the Law RecognitionAward, which is presented to anindividual who has assisted in theadvancement of women in the legalprofession, served as a role modelor mentor or has influencedwomen to pursue a career in law orfor contributions to the legal pro-fession as a whole or to a particulararea of practice. The nominee mustbe an attorney licensed in the state.

Those making nominations areencouraged to submit letters ofsupport.


Cheri Harris Indiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactCheri at [email protected].

TRAILBLAZER/ABRIENDOCAMINOS AWARDSponsored by the Latino Affairs Committee

The Latino AffairsCommittee’s Trailblazer/AbriendoCaminos Award recognizes the out-standing achievements, commit-ment and leadership of a lawyerwho has paved the way for theadvancement of other Latino attor-neys and/or the Latino community.This award recipient will personifyexcellence in the profession, espe-cially by his/her steadfast commit-

ment, vision, courage and tenacity,which have resulted in substantialand lasting contributions to theLatino legal profession as well asthe broader Latino community.The nominee must be a currentISBA member.


Christina FisherIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactChristina at [email protected].

LIBERTY BELL AWARDSponsored by the Young Lawyers Section

The Liberty Bell Award celebrates community service that strengthens our system of freedom under law. Traditionallythis award has been presented tononlawyers who have rendered outstanding service to their

communities in any of the follow-ing areas:

• promoting a better under-standing of our Constitution andthe Bill of Rights;

• encouraging greater respect for the law and the courts;

• stimulating a deeper sense of responsibility so that citizens recognize their duties as well astheir rights;

• contributing to the effectivefunctioning of our institutions of government;

• fostering a better understand-ing and appreciation of the rule of law.

This is your opportunity tofocus on a local community leaderwho may not receive public recog-nition of his or her accomplish-ments. To nominate an individual,



RG 05.14_RG 09.05 5/19/14 4:53 PM

please submit the nomination form and explain why you feel thisperson deserves the Liberty BellAward.




OUTSTANDING YOUNG LAWYER AWARDSponsored by the Young Lawyers Section

Nominated candidates willexemplify the virtues embodied in the oath required of all Indianaattorneys when admitted to the bar.

To nominate a young lawyer,complete the nomination form and include a letter explaining whyyou believe your nominee shouldbe considered for the award. Anattorney qualifies as a young lawyerif he or she is under 36 years of ageor has less than six years of legalexperience. If you prefer that yournomination remain anonymous,

please advise, and we will honoryour request.




AFFILIATE MEMBER AWARDSponsored by the AffiliateMembership Committee

This award recognizes an affili-ate member of the Indiana StateBar Association who has con-tributed to the legal profession. The selection committee will giveprimary consideration to nomineeswhose efforts offer evidence of dis-tinctive service to the legal profes-sion in the areas of paralegalism,legal administration, law librarian-ship or court administration.

The selection committee mayalso consider:

• a nominee’s contributions inthe areas of leadership, professionaldevelopment and promotion ofparalegals, legal administrators,

law librarians or court administra-tors;

• commitment to the IndianaState Bar Association; and

• service not only to the legalcommunity, but compassion anddedication to others by involve-ment and volunteer service to thecommunity.


Susan JacobsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactSusan at [email protected].

DAVID HAMACHER PUBLIC SERVICE AWARDSponsored by the Appellate Practice Section

The ISBA Appellate PracticeSection is soliciting nominationsfor the David Hamacher PublicService Award. Any lawyer or non-lawyer may be nominated. The cri-teria for this award are as follows:high moral character and ethicalstandards; service to the communi-ty; peacemaking qualities; personnot necessarily a lawyer; award notgender specific.

Send a written statementregarding why the nominee shouldbe selected to:



HON. VIOLA TALIAFERROAWARDSponsored by the Committee on Civil Rights of Children

The Committee on Civil Rightsof Children annually honors anindividual who best exemplifiesJudge Taliaferro’s courageous

AWARDS continued from page 17


Bridget O’Ryan317.255.1000boryan@oryanlaw�rm.com1901 BROAD RIPPLE AVENUEINDIANAPOLIS, IN 46220IIND1901

yarob317

riB

LIS, IN 46220APOANIVENUELE A AVENUEPAD RIPOR B

mm.co�[email protected]

nyaRRya’t Odgei

E


RG 05.14_RG 09.05 5/19/14 4:53 PM

Membership in the ISBA now includes free access to CaseCheck+, Casemaker’s negative citator system that rivals Shepard’s® and KeyCite®. Previously available only by subscription, Casecheck+ allows you to quickly determine if your case is good law.

www.inbar.org

leadership in addressing the unmetlegal needs of children and in rais-ing the public’s awareness of theseneeds. Nominations for this awardmay be for an individual who is liv-ing or deceased.


Paje FeltsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactPaje at [email protected].

COMMUNITY SERVICE AWARDSponsored by the Service Committee

The Community ServiceAward was established by the ISBAService Committee, a project of the first ISBA Leadership Develop-ment Academy class. The ServiceCommittee was formed by the classwith an interest in advancing thenonlegal service work of lawyers in their communities and state.Factors considered in the selectionof the recipient reflect the core values the Service Committee wishes to promote and include:

1. exceptional nonlegal servicework in their respective community– this does not include pro bonowork, which is recognized sepa-rately;

2. an embodiment of the corevalues of our legal profession;

3. promoting communityinvolvement; and

4. helping in underserved areas– this includes providing service inlower-income areas, youth initia-tives, the elderly and infirm,schools, and similar areas.


Kim LatimoreIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactKim at [email protected]. �

AWARDScontinued from page 18


Semi- tractor trailer accident

MONTROSS MILLER MULLER MENDELSON & KENNEDY, LLP

8900 Keystone Crossing, Suite 1250Indianapolis, Indiana 46240

1-800-394-3094 www.4mklaw.com

A T T O R N E Y S A T L A W

Passionate plaintiff advocates for more than 33 years

Serious injury from a semi-truck accident can destroy dreams. Our attorneys include a board certified physician attorney with 20 years of clinical experience. His knowledge of injuries and the need for ongoing appropriate treatment combined with our successful trial experience is invaluable in protecting your client from being shortchanged by the insurance carrier. Call us. We’d like to discuss your case.

People are at the heart of our work

Save up to 26% today with UPS shipping!

As a member of the State Bar, you can take advantage of exclusivediscounts on shipping with UPS! Whether it’s overnight letters

across the country or international shipping around the world, you’llstart saving with the first package you send. There’s no catch and nominimums. You’ll enjoy the reliability and peace of mind that comeswith the company that delivers more packages on time than anyone, with service to more than 200 countries and territories worldwide. Visit www.savewithups.com/inbar to sign up and start saving! �

RG 05.14_RG 09.05 5/19/14 4:53 PM

Legal ethics essaycontest – deadlineto submit Sept. 1

The State Bar’s Legal EthicsCommittee, in coordination

with the Young Lawyers Sectionand the Written PublicationsCommittee, is sponsoring the 2014Legal Ethics Essay Contest, which is aimed at promoting the study of legal ethics within the legal community.

The contest is open to Indianalaw students, new lawyers (withinthree years of law school gradua-tion) and paralegals (with less thanthree years of experience).

The winning essay will be eligi-ble for publication in Res Gestae,the ISBA’s bar journal. If published,the essay would then be eligible fora Harrison Legal Writing Award (to include cash prize) to be award-ed at the State Bar’s fall meeting in 2015. The second- and third-place essays will be announced in Res Gestae and published on the Association’s website.

Nuts & bolts for participants:

• Essay length: between 2,500 -3,750 words (not including end-notes)

• Choose one of six topics listedin the Contest Guidelines or writeon a legal ethics topic of one’s ownchoosing.

• Submission deadline: Sept. 1,2014

• Submissions judged by theISBA Legal Ethics Committee

• The top 3-5 participants willpresent their essays to the ISBALegal Ethics Committee.

For questions, please contact Matthew D. Neumann at [email protected]. �

ASSO

CIA

TION

NEW

S


PURPOSETo encourage the study of legal ethics at Indiana law schools and byrecent law school graduates and paralegals. The program will alsoprovide academic scholarship on legal ethics topics to the membersof the Legal Ethics Committee.

CONTEST RULESEligibility: The essay contest is open to all students attending an Indiana law school, attorneys within three years of law schoolgraduation, and paralegals within the first three years of practice.

Essay length: Essay must be between 2,500 and 3,750 words, not including endnotes.

Topic: Participants may select one of the six suggested topics belowor write on a legal ethics topic of their own choice.

Deadline: Essays must be submitted via email to Catheryne Pully at [email protected] no later than Sept. 1, 2014. Submissions must bein Microsoft Word or PDF format.

Selection of finalists: The Legal Ethics Committee will select three tofive finalists. The finalists will be invited to attend a meeting of theLegal Ethics Committee during the fall of 2014 to present their essayand answer questions from the committee. Finalists who are unableto attend the meeting in person may attend via telephone.

Selection of winning essays: The Legal Ethics Committee will selectfirst-, second- and third-place winning essays. The winning writerswill be contacted personally. All other participants will be notified of the contest results by mail.

First Place: The winning essay will be submitted for publication inRes Gestae.1 The winning essay, once published, will be eligible for a Harrison Legal Writing Award, which is awarded by the State Bar’sWritten Publications Committee and includes a cash prize. Thewinning writer will be invited to serve on the Legal Ethics Commit-tee and recognized at the Annual Awards Luncheon during theISBA’s fall meeting.

Second and Third Place: The second- and third-place essays will beannounced in Res Gestae, and the essays will be published on theLegal Ethics Committee’s webpage.

ESSAY FORMAT & GUIDELINES1. Essays should use a legible 12-point font.

2. Essays should be double spaced with 1.5-inch margins.

3. Each page should be numbered in the lower right-hand corner,including the author’s last name.

4. Notes and citations should use Bluebook Citation form.

5. Essays should include a discussion of some or all of the follow-ing as applicable: the Indiana Rules of Professional Conduct,


RG 05.14_RG 09.05 5/19/14 4:53 PM

the Indiana Rules for Admission to the Bar & the Discipline ofAttorneys and Indiana case law.Essays may also contain referenceto model rules, the ethics rules of other states, other case law and secondary sources.

SUGGESTED TOPICS

1. The American Bar AssociationCommission on Ethics 20/20 is cur-rently studying the issue of alterna-tive business structures for lawfirms, including whether the modelrules should permit nonlawyerownership or management of lawfirms. Indiana Rules of ProfessionalConduct 5.4(b) and 5.4(d) prohibita lawyer from entering a partner-ship with a nonlawyer if any of theactivities of the partnership consistof the practice of law. What are the arguments for and against nonlawyer ownership or manage-ment of a law firm, and should theIndiana rule be changed to permitsuch business partnerships?

2. On Aug. 19, 2013, the AmericanBar Association Standing Commit-tee on Ethics & ProfessionalResponsibility issued FormalOpinion 464, which addresses the division of legal fees with other lawyers who may lawfully

share fees with nonlawyers. IndianaRule of Professional Conduct 5.4(a)prohibits a lawyer or law firm fromsharing legal fees with a nonlawyer.What are the arguments for andagainst allowing a lawyer to sharelegal fees with a nonlawyer? WouldRule 5.4 need to be changed toallow the conduct described inFormal Opinion 464, and if so,how? Should Rule 5.4 be changed?

3.Mr. and Mrs. Cloud contact Mr. Breese, their attorney and long-time friend. The Clouds and anoth-er friend, Mr. Rains, want to form a corporation but cannot afford to pay Mr. Breese’s normal fee forsuch service. Mr. Breese agrees toform a run-of-the-mill corporationin return for a 10 percent share inthe corporation. The Clouds andMr. Rains agree, and the corpora-tion is created with the followingshareholder arrangement: Mr.Cloud gets 35 percent of the corpo-ration; Mrs. Cloud gets 35 percent;Mr. Rains gets 20 percent; and Mr.Breese gets 10 percent. Mr. Cloud isthe president; Mr. Rains is the vicepresident; and Mrs. Cloud is thesecretary-treasurer. Mr. Breese is a shareholder and the attorney forthe corporation. The corporationhas become very profitable after a few years and is worth millions of dollars. What legal ethics issuesare raised by the circumstancesdescribed above? Does the relation-ship between the parties violate any Indiana ethics rules? If so, howcould the situation be changed so that no ethics rules are violated?

4. Changes in technology have ledto the growing use of electronicmeans for client communication(e.g., email, text message, socialmedia, etc.) and electronic storageof client data, not only in onsitedevices, but also in offsite servers,on mobile devices and “in thecloud.” What legal ethics issues areraised by the growing use of tech-nology for client communication

and storage of client data? WhichIndiana ethics rules apply or maybe violated by electronic communi-cation and storage of client data?Should any Indiana ethics rules bechanged or new rules instituted togovern electronic communicationand storage of client data?

5. Changes in technology haveopened up new avenues for adver-tising legal services, including useof social media, banner and pop-upads, search engine optimization andkeyword advertising, and deal-of-the-day marketing programs (e.g.,Groupon, Living Social, AmazonLocal, etc.). What legal ethics issuesare raised by the use of these typesof advertising? Which Indianaethics rules apply or may be violat-ed by such advertising? Should anyIndiana ethics rules be changed ornew rules instituted to govern thesetypes of advertising?

6. A long-range planning initiativeof the Indiana State Bar Associationis civility. What can be done to pro-mote civility in the practice of law?What are some of the current chal-lenges faced by attorneys in balanc-ing the duty of civility and the dutyof zealous advocacy? Do you thinkthere is a trend toward less civilityin the practice of law? If so, why?What can be done to reverse orimprove this trend? Does Rule 3.4,which governs fairness to opposingparty and counsel, require civilitybetween attorneys, and if not,should Rule 3.4 be amended or an additional rule on civilityadded? How does Preamble 9 to the Indiana Rule of ProfessionalConduct affect these issues? Shouldit be changed or expanded? �1. Final publication decisions are at the discretionof the Written Publications Committee.

ESSAY CONTEST continued from page 21


Child Support SoftwareIndiana

SUPPORT MASTER™4 All Calculations4 All Worksheets4 Large Incomes4 Arrearage and Interest

Professional Software CorporationFast, accurate supportcalculations since 1989

POB 716 812/781-1422Mount Vernon marc.edwin.hawleyIN 47620 @gmail.com

www.supportmastersoftware.com

RG 05.14_RG 09.05 5/19/14 4:53 PM

BENEFITS &MEMBER SERVICES

INDIANA STATE BAR ASSOCIATION

–Services to Assist Your Legal Practice–

• 26 Law Sections• Casemaker – Online legal research tool Unlimited research at no additional cost.• CLE Programs – (800) 266-2581 Quality programs at discounted prices.• CLIO – Web-based practice management system. (888) 858-CLIO or www.goclio.com/landing/inbar• Hewlett-Packard – (888) 202-4465, Code: STBAR or www.hp.com/go/statebar• IndianaDocs – legal forms – (800) 266-2581• Indiana Legal Directory – (800) 447-5375• Intercall – Telephone conferencing – (800) 636-2377• LawPay – Credit Card Processing (866) 376-0950, or www.tinyurl.com/4uqe7du• O�ce360 – Special pricing on o�ce supplies. www.o�ce3sixty.com/o�web/login.aspx ID: ISBA Password: REG22555• Leadership Development Academy• Legal Ethic Opinions• Mentor Match• O�cescape – (888) 893-1234 – Discounted rates on temporary o�ces, virtual o�ces & more. Code INBARDISCOUNTS40 for 40% o� O�cescape membership; Code INBARDISCOUNTS10 for 10% o� other services listed. www.o�cescape.com• Sure Payroll – online payroll service (877) 954-7873 www.lps.surepayroll.com/ISBA• United Parcel Service – (800) 325-7000

–Other Vendors–O�ering special rates for ISBA members:

• Adaptibar – Online study tool for the Multistate (MBE) portion of the bar exam. ISBA student members save $100. (877) 466-1250, Code: INBAR or visit www.adaptibar.com• American Bar Association Books – 15% discount at www.abanet.org/abastore - Code: PAB8EINB • Brooks Brothers – Save 15% on non-sale items. membership.brooksbrothers.com Code: 27400, PIN: 80190• Framing Success - Frames for certi�cates & awards. www.framingsuccess.com Code: Indiana State Bar Association• Go Next – Travel Program – (800) 842-9023 www.gonext.com/inbar• Indy Park Ride & Fly – (888) 230-0300 Special rates for ISBA members tinyurl.com/IndyParkRideFly-ISBA• Men’s Wearhouse Perfect Fit – www.menswearhouse.com

–Publications–• Res Gestae• Addendum• Public Service Information Pamphlets• Section Newsletters

–Insurance through ISBA Insurance Agency–(877) 647-2242

• Health Insurance/Major Medical/Dental/Optical• Disability/Life/Long Term Care• Long Term Care & Life• Homeowners/Auto, Business/Auto• Worker's Compensation/Business/Property Liability

–Ritman & Associates–(888) 3Ritman

• Employment Practices Liability Insurance• Professional Liability Insurance

–Online Services–• e-Discussion lists• EsqSites123.com – Website Design (877) 748–3712 or esqsites123.com• ISBA Career Center & Job Board – jobs.inbar.org• LexisNexis – (818) 203-7031 Brian Beck, [email protected]

–Car Rental Programs–�e following car agencies o�er special rates for ISBA members:

• Avis – (800) 331-1212 Discount No. A861100• Budget – (800) 527-0700 Discount No. D414400• Hertz – (800) 654-2210 Discount No. CDP343552

–Financial Programs–Special rates for ISBA members:

• ABA Retirement Funds Program – (800) 826-8901• �e Hartford – (317) 324-8660, Tom Hedrick• Raymond James – (317) 566-6412, David Doucle�• Regions Bank – (317) 221-6039, Andrew McIntyre

–Ancillary Programs–

For information about these programs,contact the Association o�ce at (800) 266-2581

• Clients’ Financial Assistance Fund• JLAP – (866) 428-5527 or www.in.gov/judiciary/ijlap• Law-Related Education Programs

Skillful writers think very care-fully about what their readerswant from documents writ-

ten for those readers. Often, thisconsideration is confined to thesubstance of the writer’s message to the reader – in other words, whatthe writer will say to the reader. Buta good writer also considers howthat message will be communicatedto the reader. This “how” includesthe appearance of the document in which the message is conveyed,including the typeface and spacingused for the text in the document.

As lawyers, our readers areoften “law-trained” readers, such as other lawyers and judges. Likeother accomplished writers, welawyers carefully consider whatwe’re going to say to these readersin the memoranda and briefs wewrite for them. But how often dowe truly consider how we’re goingto convey our message to them?How often do we ponder what an effective memo or brief shouldlook like rather than merely what it should say?

Good document design is a key skill for attorneys to learn. Longgone is the era in which documentdesign was constrained by the limit-ed capabilities of the typewriter.

In the digital world ofthe 21st century, wordprocessing applica-tions give us the basictools that professionaltypographers use,allowing us to createdocuments that areaesthetically pleasingand easier to read.This article will discussbasic document designprinciples that willallow you to moreeffectively convey your message to a law-trained reader.1

Why is good document designimportant?

To be skilled writers, lawyersmust cater to their readers’ attribut-es. Law-trained readers have threecommon attributes. First, law-trained readers are busy people.Many of them, especially judges,read a multitude of documents on a daily basis.2 Second, like otherreaders, law-trained readers havelimited attention spans; their inter-est will wane quickly if a documentis difficult to read.3 And third,some law-trained readers – namelyjudges – are decision-makers. Thus, they expect to be persuadedby documents they read.4

Good document design shouldbe important to you as a lawyerbecause a well-designed documentmakes the document more read-able,5 which in turn enables you to cater to a law-trained reader’sattributes in three ways. First, well-designed documents are easier for a busy reader to understand andremember.6 Second, well-designeddocuments maintain the reader’sattention.7 And third, well-designeddocuments help the author to per-suade the reader. More specifically,an effectively designed documentcan put the reader in a positivemood, make the arguments in thedocument more memorable to thereader, and make a strong state-ment to the reader about theauthoring attorney’s credibility.8

Court rules and document-design conventions within your law office will often limit the designchoices available to you for the doc-uments you write. But to the extentthat rules or conventions permityou to do so, you should follow twomain document design principles:(1) use the most readable font inyour document, and (2) use effec-tive vertical and horizontal spacingin the text.

1. Use the most readable fontThe first consideration in

designing your document is thefont you will use for your docu-ment’s text. The term “font” refersto the design and physical appear-ance of the letters used in text.9

a. Use a proportionally spaced font

Fonts fall into two broad categories: monospaced fonts and proportionally spaced fonts.10

A monospaced font uses the samewidth for each letter in the alpha-bet.11 An example of a monospacedfont is Courier. By looking at theword Courier, you will see thatall letters in the word, including a narrow letter like “i” and a wideletter like “o,” are actually the samewidth. In contrast, a proportionallyspaced font uses different widthsfor different letters.12 Examples of proportionally spaced fonts are

Times New Roman and Calibri. By looking at the words in thesefont names, you will see that differ-ent letters in the words have differ-ent widths. For example, the “i”used in both font names is narrow-er than the “a.”

According to studies of adultreaders, proportionally spaced fontsare easier to read than monospacedfonts.13 Therefore, use a propor-tionally spaced font in your docu-ments, even when the rules or conventions governing the designof your document allow you to use a monospaced font.14

b. Use a serif font for extendedblocks of textFonts are further classified as

serif or sans serif.15 Serifs are littlestrokes appearing at the ends oflines that make up letters.16 Seriffonts include serifs in their letters.17

Sans serif fonts do not.18 For

instance, Book Antiqua is a seriffont; Helvetica is a sans serif font.

WORDWISE

Best practices in document designBy Prof. James D. Dimitri


James D. DimitriClinical Professor of Law

IU Robert H. McKinney School of Law

Indianapolis, [email protected]

RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

Just as proportionally spacedfonts are more legible than mono-spaced fonts, serif fonts are morelegible than sans serif fonts,19 espe-cially in extended passages of text,because they lead the reader’s eyesacross the page.20 For this reason,books and magazines are almostalways set in serif fonts.21 Mostdocuments that lawyers write forlaw-trained readers require thosereaders to read extended passagesof text. In this sense, those docu-ments are book-like. Therefore, use serif fonts for extended blocksof text, particularly fonts that werespecifically designed for books,

such as Baskerville, Book Antiqua,

Calisto MT, Century and

Century Schoolbook.22 However,a serif font you may want to avoid

is Times New Roman because thisfont was designed for optimal read-ing in narrow columns with shortlines of text, not for optimal read-ing in the longer lines of text thatappear in briefs and memoranda.23

c. Reserve sans serif fonts for headings and for docu-ments to be read on screen

While you should prefer a seriffont for extended blocks of text,you may use a sans serif font forshort blocks of text, such as sectionheadings.24 Indeed, using a sansserif font for a document’s sectionheadings and a serif font for the restof the document provides varietythat may help to keep your readerengaged.25 But if you choose to usedifferent fonts like this, use onlyone type of sans serif font for thesection headings and one type ofserif font for the rest of the text.26

And in any event, never use morethan two different fonts in a docu-ment because to do otherwise willdistract the reader.27

You may also use a sans seriffont for the whole document if youknow your reader will read yourdocument on a computer or elec-tronic tablet screen rather than in a print document because sans seriffonts are generally easier to read on screen than serif fonts.28

Typography expert MatthewButterick recommends the sans

serif fonts Helvetica, Franklin

Gothic, Gill Sans and Optimainstead of the more common

Arial.29

d. Use a readable font size

Fonts come in different sizes aswell. Font size is measured accord-ing to two units of vertical mea-surement. The first unit is called



RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

a “point.”30 In typography par-lance, a point is 1/72 of an inch.31

The second unit is called “x-height.”32 X-height refers to the vertical size for a particularfont’s lowercase “x.”33

Choosing the most readablefont size can be a bit tricky for acouple of reasons. First, typography

experts disagree on an optimal fontsize, so there is no one best font sizefor legibility. Second, court rulessometimes limit your choice of fontsize. For example, the Indiana Rulesof Appellate Procedure require doc-uments filed with the state’s appel-late courts to use a font size of at

least 12 point,34 and the Federal

Rules of Appellate Procedurerequire a minimum font size of 14 point for briefs.35

Even though typographyexperts don’t agree on an optimalfont size, they do agree that largefonts don’t necessarily promotereadability. Indeed, fonts largerthan 14 point may decrease read-ing speed and may look inappropri-ately aggressive to the reader.36

Conversely, fonts smaller than 10 point aren’t as legible as largerfonts.37 Therefore, even if a mini-mum font size hasn’t been imposedon you, you should use a font in your document that is at least 10 point. And in any case, youshould use a font that is no largerthan 14 point, even if rules or con-ventions do not impose a maxi-mum font size for the document.

As a final consideration inchoosing the appropriate font size,keep in mind that different fonts ofthe same point size will not neces-sarily appear to be the same size on the page because of variations inx-height.38 Consider the followingfonts. Both are 10-point fonts:

This is an example of Garamond 10 point.

This is an example of Book Antiqua 10 point.

Note how the words in the

sentence using Book Antiquaappear larger than the words in

the sentence using Garamond.

That’s because Book Antiqua has

a larger x-height than Garamond.Therefore, if you choose a 10-pointfont for your document, considerusing a font with a large x-height to enhance legibility. Conversely, ifyou choose a 14-point font for yourdocument, consider using a fontwith a small x-height so your read-ers won’t feel like you’re yelling atthem on the page. To figure out thex-height of a font, you’ll have totype the same phrase using several

DOCUMENT DESIGN continued from page 25


www.georgeandfarinas.com

Why refer cases to George & Farinas?

RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

different fonts of the same pointsize and see which fonts look small-er and larger on the page.39

e. Avoid using all caps for extended blocks of text

Readers draw meaning fromwords by looking at the shapes ofthose words, focusing particularattention on the tops of the lettersused in the words.40 Perceiving the shapes of words is easier for a reader when the shapes are moredistinct than they are similar.41

Lowercase letters convey more dis-tinctive word shapes than do capitalletters. This is because capital lettersuniformly use rectangular shapes,while lowercase letters do not.42

Therefore, text using lowercase letters is more legible than text conveyed in all capital letters.Consequently, avoid using all capi-tal letters in your documents forextended passages of text.43 If youfeel that you must draft somethingin all caps, do it only for shortheadings that have no more than a few words, such as the headingsfor brief sections (e.g., “STATE-MENT OF THE ISSUES,” “ARGUMENT”).44

f. Don’t underline textWhen typewriters were the pri-

mary tools used to generate printdocuments for lawyers, the onlyway to indicate emphasis in a docu-ment’s text was to underline thattext because typewriters did notpossess keys for boldface type oritalic type.45 But word processingapplications now give you moretypeface choices than simply under-lining. And underlined text is moredifficult to read than text that isn’tunderlined.46 Therefore, if youmust emphasize a portion of the text in your document, use italics instead of underlining.47

Furthermore, use boldface only for headings rather than in the textto avoid the appearance of shoutingat your reader.48

2. Use effective horizontal and vertical spacing

Making a document more legi-ble isn’t limited to using the mostreadable font. You should also layout each page in a way that opti-mizes legibility. To do this, youneed to achieve the proper balancebetween the document’s whitespace and text through the use of effective horizontal and verticalspacing.

a. Use one space after punctuation

If you learned to type on a typewriter, you undoubtedlylearned to space twice after periods.This horizontal spacing conventionserved a purpose when typewriterswere the prevailing publication toolbecause typewriters used mono-spaced fonts.49 Because each letterin a monospaced font is the samewidth, using two spaces after sen-tences helped to set off sentencesfor the reader.50

However, the prevailing typo-graphic convention for publica-tions, including books and maga-zines, is to use only one space after

any punctuation, even periods.51

This is so because professional pub-lishers use proportionally spacedfonts, and the use of two spacesafter each period in a proportional-ly spaced font creates “rivers” ofwhite space that disrupt a reader’seye movement through the text.52

Therefore, forget what your typingteacher taught you; use only onespace after any punctuation,including periods.53

b. Align your text on the left side of the document

Text may be either justified orleft-aligned.54 Justified text is hori-zontally spaced so the left and rightsides of the text block are flush withthe margins.55 In contrast, left-aligned text is flush only at the leftside of the text block, leaving theright side of the text block uneven(which is why left-aligned text isalso called “ragged right” text).56

Just as spacing twice after peri-ods may create disruptive rivers ofwhite space in a block of text, sotoo may justifying the text because


Terry NoffsingerAccepting Statewide Referrals of Wrongful Death and Personal Injury CasesMr. Noffsinger brings his many years of experience, whichdemonstrate his desire to help people. His whole career has been devoted to the representa-tion of individuals harmed by others, and he has been firstchair in over 100 jury trials.Martindale Hubble sets national standards for attorneys;

since 1979, it has rated Terry as an “AV” Lawyer, which is the highest possible rating in both legal and ethical standards. Complex litigation cases include five separate jury trials that have lasted one month or more. Terry focuses his practice on wrongful death and personal injurycases, including medical malpractice and motor vehicle/truck/motorcycle accidents.

Hensley Legal Group, P.C. • 350 E. New York St., Suite 300Indianapolis, IN 46204 • 317.472.3333

[email protected]


RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

extra horizontal spaces must beinserted between words in the text block to make the right side of the text aligned.57 Thus, use left-aligned text to promote legibility.58

In addition, centered text may reduce legibility, along withtext that contains large indents.59

Therefore, use centered text sparingly. Reserve it for only mainsection headings so you do not frequently disrupt the reader’sprogress through the document.60

Furthermore, indent the first line of text a quarter-inch from the left margin rather than a half-inch,which is the default tab setting for most word processing applica-tions.61 You can change this settingby using your word processing program to insert a tab at a quarter-inch. Finally, left alignheadings other than main sectionheadings.62

c. Use shorter lines than you might normally use

Court rules and legal writingconventions typically require mar-gins of no less than one inch fordocuments.63 But long lines of textreduce legibility because the readermust use more time to shift his orher eyes from the end of one line of text to the beginning of the nextline of text.64 This is why text innewspapers and magazines is set innarrow columns with short lines.65

While the default margin set-ting for most word processingapplications is 1.25-inch margins,consider making the left and rightmargins of your document larger toincrease the document’s readability,provided that doing so wouldn’tcause you to run afoul of any pagelimit mandated by the applicablecourt rules. Left- and right-pagemargins of 1.5 inches will make

the text lines shorter and thus morecomfortable to read.66

d. Use line spacing that promotes readability

The term “line spacing” refersto the vertical distance betweenlines of text in a document.67 Likeother parts of a document’s design,the line spacing of a document’stext affects the document’s read-ability. Lines that are set closertogether are more legible than linesthat are set farther apart.68

For most fonts, the optimalline spacing for legibility is between120 percent and 145 percent of thefont’s point size.69 This line spacingrange is slightly larger than single-spacing: 1.03 to 1.24 line spacing.70

To be sure, some rules require doc-uments filed with the court to havedouble-spaced text.71 Other courtrules are not as restrictive.72 If rules

DOCUMENT DESIGN continued from page 27


RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

Effective July 1, ISBA members can take up to 3 hours of ethics credit (a $90+ value) during the 2014-15 bar year at no additional cost, as a part of the State Bar's ongoing commitment to improve the practice of law by promoting adherence to high ethical standards.

Stay tuned for more information about designated programs in the coming year. ISBA members qualify upon paying their 2014-15 dues.

Connect with the ISBA

CLEINDIANA STATE

B A R A S S O C I A T I O N

Get more with yourmembership dollars –

3 hours offree ethics CLE

or conventions do not require a particular line spacing for yourdocument, choose a line spacing for extended passages of text that is within the optimal range.Microsoft Word makes this choiceeasy because it offers 1.15 line spac-ing among its standard line spacingchoices. That spacing is within theoptimal range.73

ConclusionNow you possess the basic

tools to craft a well-designed docu-ment for law-trained readers. Foran advanced discussion of effectivedocument design for lawyers, consult Matthew Butterick’s well-received book, Typography forLawyers.74 And if you are writing a brief for the Seventh Circuit, youcertainly should read the court’srequirements and recommenda-tions for typography.75 �1. This article will not discuss document design

for documents written for other readers, such as clients.

2. See Seventh Circuit, “Requirements &Suggestions for Typography in Briefs & OtherPapers,” http://www.ca7.uscourts.gov/rules/type.pdf, at 4 (accessed April 14, 2014) (noting that the judges read up to about 1,000 pagesper argument session); Linda H. Edwards,Legal Writing & Analysis 72 (3d ed., AspenPublishers 2011).

3. Matthew Butterick, Typography for Lawyers:Essential Tools for Polished & PersuasiveDocuments 22-23 (Jones McClure Publg.2010); Edwards, supra n. 2, at 72.

4. Id. at 74-76.

5. Ruth Anne Robbins, “Painting with Print:Incorporating Concepts of Typographic &Layout Design into the Text of Legal WritingDocuments,” 2 J. Ass’n Legal Writing Directors108, 112 (2004).

6. Id. at 110-11.

7. Butterick, supra n. 3, at 23.

8. Derek H. Kiernan-Johnson, “Telling ThroughType: Typography & Narrative in Legal Briefs,”7 J. Ass’n Legal Writing Directors 87, 115(2010); Robbins, supra n. 5, at 110-11.

9. Kiernan-Johnson, supra n. 8, at 91.

10. Robbins, supra n. 5, at 121.



13. Id.


15. Bryan Garner, The Redbook: A Manual on Legal Style 77 (2d ed., West 2006).



18. Id.

19. Garner, supra n. 15, at 77.

20. Robbins, supra n. 5, at 119-20.


22. Seventh Circuit, supra n. 2, at 5; see alsoButterick, supra n. 3, at 83 (listing serif fontsthat are suitable for law-related documents).The manuscript for this article was preparedusing Century Schoolbook. [The magazine’sbody type is Minion.] The Solicitor General’sOffice and the U.S. Supreme Court also usefonts from the Century family in their docu-ments. Kiernan-Johnson, supra n. 8, at 114. Be aware, however, that court rules may limitthe types of fonts you may use in a document.For example, the Indiana Rules of AppellateProcedure list 16 fonts that are acceptable inbriefs and petitions filed with the state’s appel-late courts. Ind. Appellate Rule 43(D).

23. Seventh Circuit, supra n. 2, at 5.

24. Garner, supra n. 15, at 77; see also Fed. R. App.P. 32(a)(5)(A) (“A proportionally spaced facemust include serifs, but sans-serif type may beused in headings and captions.”)


26. Garner, supra n. 15, at 78-79.

27. Id.

28. Tonya Kowalski, Appellate Advocacy Blog, “A Font of Wisdom,” http://lawprofessors.typepad.com/appellate_advocacy/2014/03/a-font-of-wisdom.html (accessed April 17,2014); Robbins, supra n. 5, at 127. The likeli-hood that a law-trained reader might be read-ing documents on screen is increasing. Forexample, Fifth Circuit judges read the majorityof their briefs on iPads. Daniel Sockwell,Columbia Business Law Review,Announcements, “Writing a Brief for the iPad Judge,” http://cblr.columbia.edu/archives/12940 (accessed April 18, 2014).



31. Id.

32. Id. at 95.

33. Id.

34. Ind. Appellate Rule 43(D).

35. Fed. R. App. P. 32(a)(5)(A).

36. Garner, supra n. 15, at 79; Robbins, supra n. 5,at 122.







43. Id.




47. Antonin Scalia & Bryan Garner, Making YourCase: The Art of Persuading Judges 122 (West2008).

48. Id.


50. Id.

51. Id. at 41-42.

52. Id.

53. Id. at 41; Garner, supra n. 15, at 83; Seventh Circuit, supra n. 2, at 5.


55. Id. at 135; Garner, supra n. 15, at 82.

56. Butterick, supra n. 3, at 135; Garner, supra n. 15, at 82.

57. Id.

58. Id.; Robbins, supra n. 5, at 130.

59. Id. at 131; Garner, supra n. 15, at 81.

60. Butterick, supra n. 3, at 134; Garner, supra n. 15, at 82.

61. Id. at 81; see also Butterick, supra n. 3, at 136 (recommending an indent of 0.17 to 0.67 inches).


63. E.g. Ind. Appellate Rule 43(G).




67. Id. at 139.



70. Id.

71. E.g. App. R. 43(E).

72. See Lake County Local Court Rule LR45-TR10-2 (containing no restriction on usingsingle-spaced text).


74. Matthew Butterick, Typography for Lawyers:Essential Tools for Polished & PersuasiveDocuments (Jones McClure Publg. 2010).

75. Seventh Circuit, “Requirements & Suggestionsfor Typography in Briefs & Other Papers,”http://www.ca7.uscourts.gov/rules/type.pdf(accessed April 14, 2014).

After graduating summa cum laudefrom Valparaiso University School ofLaw in 1993, Prof. James D. Dimitrijoined the Indianapolis law firm of Frank & Kraft. He then served as staffcounsel for the Indiana Department ofCorrection. In 1995, he was appointed as a deputy attorney general with theIndiana Attorney General’s Office. Jim began teaching as an adjunct profes-sor in 1997. He was appointed as a full-time professor in 1998. He currentlyserves as faculty advisor to the MootCourt Society, advising the Moot Court Board in its administration of the Hon. Robert H. Staton Intramural Moot Court Competition.


RG 05.14-pp-24-29_RG 09.05 5/19/14 5:21 PM

Ipreviously wrote about resolv-ing lawyer disciplinary actionsby agreement. “I’ve Looked

at Life from Both Sides Now: The Meaning of Agreed DisciplineOrders,” Vol. 55, No. 10 Res Gestae23 (June 2012). Now come tworecent final orders of discipline by the Indiana Supreme Court thatraise difficult questions for respon-dents and their counsel in the reso-lution of disciplinary actions byagreement. Matter of Kinnard, 2 N.E.3d 1267 (Ind. 2014); Matterof Dilk, 2 N.E.3d 1263 (Ind. 2014).

Rejections with counterproposals

Both cases are interesting onthe merits – Dilk is the more inter-esting of the two – but I propose to discuss a procedural point, unre-lated to the merits, that the caseshave in common. In both cases, theCourt ordered the respondent sus-pended for no less than six monthswithout automatic reinstatement.To set the stage for discussion ofthe procedural uniqueness of thesetwo cases, I quote from the Court’sopinion in Kinnard:

Respondent suggests that he be sus-pended for a period of time followedby probation during which he wouldbe under the supervision of JLAP andan attorney mentor. Similar disci-pline was earlier proposed by a con-ditional agreement, which this Courtrejected. Respondent did not acceptthe Court’s counterproposal for sus-

pension of six monthswithout automatic rein-statement. See Admis.Disc. R. 23(11)(c). Now, upon considera-tion of the fully devel-oped record, the Courtagain concludes that thediscipline proposed byRespondent is inappro-priate and insufficientfor Respondent’s mis-conduct, which includ-ed the deliberate andvindictive abuse of thelegal system in an

attempt to thwart the disciplinaryprocess. The Court again concludesthat Respondent should be suspend-ed for at least six months and shouldthen be permitted to resume practiceonly after obtaining approval forreinstatement.

The Court used similar lan-guage in Dilk, referring also to the parties’ proposed agreed sanc-tion that the Court had previouslyrejected with a counterproposal of a suspension for at least six monthswithout automatic reinstatement,that the respondent rejected infavor of taking the matter to a hear-ing. The Court’s ultimate sanctionwas the same one it had counter-proposed.

I have done a quick review offormer lawyer discipline decisions,and I believe these cases, decidedon the same day, are the first casesin which the Supreme Court dis-closed the fact that there had been a previous, rejected effort to resolvea case by agreement.

Settling lawyer discipline cases

Let’s review the rule provi-sions that provide the context for understanding why these cases areremarkable. Lawyer discipline pro-ceedings are, to lapse briefly intoLatin, sui generis; or to use mynative Hoosier-speak, there’s noth-in’ else like ’em. They are governedby their own, specialized procedur-al rules found in Admission &Discipline Rule 23. They are alsounusual because they are originalactions decided by the SupremeCourt, prosecuted by the Court’sown agency, to enforce substantivelaw promulgated by the Court – the Rules of Professional Conduct.It’s enough to give a separation-of-powers absolutist a heart attack.

Disciplinary actions are neithercivil nor criminal. They have beencalled quasi-criminal In re Ruffalo,390 U.S. 544, 551 (1968). If that is supposed to mean they are likecriminal cases, that seems wrong

to me – no lawyer has ever beendeprived of personal liberty for violating the Rules of ProfessionalConduct. When a law license dies,nobody goes to prison. They aredefinitely serious matters, reflectedin the fact that the Commission hasa burden of proving its allegationsof misconduct by clear and con-vincing evidence, but they are atleast as much like civil as criminalcases.

But unlike in civil cases, therespondent and the DisciplinaryCommission cannot simply settlethe matter between them and bedone with it. More like in criminalcases, if the respondent agrees withthe Commission to be disciplined,the agreement must be approved by the Court. And the Court hasthe power to reject the agreementbecause it is either too lenient or,less often, too harsh. However, as ageneral rule, the Court encouragesresolutions by agreement. Admis.Disc. R. 23(11)(c). In fact, inaccepting such agreements, theCourt occasionally remarks that“[t]he discipline imposed forRespondent’s misconduct mighthave been more severe had thismatter been submitted without the Commission’s agreement to the proposed discipline.” See, e.g.,Matter of Randolph, 993 N.E.2d1135, 1136 (Ind. 2013).

Conditional agreements for discipline

Agreed resolutions in disci-pline cases are put to the Court in the form of an agreement calleda Statement of Circumstances and Conditional Agreement for Discipline. The ConditionalAgreement is not filed with theClerk and is not docketed as a pub-lic filing in the case. Instead, it issubmitted to the Court outside thepublic record through the Divisionof Supreme Court Administration.Admis. Disc. R. 23(11)(c). Rule 23is silent about whether Conditional

ETHICS CURBST

ONE

The not-so-confidential conditional agreement for disciplineBy Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 05.14_RG 09.05 5/19/14 5:02 PM

Agreements are otherwise avail-able to non-parties. In practice,Conditional Agreements have beenhandled like resignation affidavitsor consents to discipline, which,under Rule 23(17)(c), “shall not bepublicly disclosed or made availablefor use in any other proceedingexcept upon order” of the SupremeCourt. This is presumably becauseresignation affidavits and consentsto discipline, just like ConditionalAgreements, must include therespondent’s unqualified, swornadmission of misconduct. If theaffidavit were available to the pub-lic, respondents who were at risk ofcollateral civil or criminal liabilityfor their conduct would rightfullybe reluctant to ever resolve mattersby agreement.

The Conditional Agreementmust stipulate to the facts, the ruleviolations and the disciplinarysanction. It must also be accompa-nied by the respondent’s affidavitdeclaring, among other things, that: “The respondent acknowl-edges that the material facts setforth in the conditional agreementare true,” and “[t]he respondentsubmits his or her agreementbecause the respondent knows that if charges were predicatedupon matters under investigation,or if the proceeding were prosecut-ed, the respondent could not suc-cessfully defend himself or herself.”Admis. Disc. R. 23(11)(c)(3) and (4).

This is a bitter pill, not unlikecriminal guilty pleas in Indiana,which must be unequivocal. Morrisv. State, 896 N.E.2d 1149, 1152(Ind. 2008). So-called Alford pleas,in which the defendant pleadsguilty without fully admitting guiltbecause the risks of going to trialare worse, are not allowed. Thereare no Alford-type pleas in lawyerdiscipline.

Court responses to conditional agreements

If every effort to resolve disci-pline cases by agreement were suc-cessful, I would have nothing towrite about this month. But theyaren’t. Rule 23 contemplates thatnot all agreements for disciplinewill be accepted. Upon receivingthe Conditional Agreement, theCourt has three options: “(1) enteran order for the discipline condi-tionally agreed to, or (2) submit to the parties a proposed disposi-tion for such discipline as the Courtshall deem appropriate, or (3) noti-fy the parties that it declines toapprove the agreement or recom-mend a disposition.” Admis. Disc.R. 23(11)(c).

If the Court follows optionone, as it typically does, it issues an order of the type you regularlysee, styled, “Published OrderApproving Statement of Circum-stances and Conditional Agreementfor Discipline.” These are normallybrief orders running a page or twothat summarily describe the facts,list the rule violations, and describethe disciplinary sanction. They

suffice to resolve the matter asbetween the Commission and therespondent, but are not very eluci-dating to outside observers. I sug-gested in my column on agreed dis-cipline cited at the outset that theyshould have little to no precedentialvalue for cases that come later.

Option two contemplates theCourt having a sense of appropriatediscipline different from what wasproposed by the parties and com-municating a counterproposal for a different disciplinary sanction tothe parties. In that event, the partiesmay, within 60 days, notify theCourt that they accept the Court’scounterproposal, thereby conclud-ing the matter once the Courtenters a corresponding order. If the parties cannot mutually agreeto the Court’s counterproposal,they return to the status quo ante(darn, there’s that Latin again) andtake the case to a contested hearing.As we will see, rejecting the Court’scounterproposal is not for the faintof heart.


www.thearctrust.org

Trust I Helping families plan for the financial future of their loved one

Trust II Helping people with disabilities fund their own trust

Regardless of your age, or

your child’s age or disability, planning for the future is important.

Serving Hoosiers of all disabilities and their families for over 25 years

ving Hoosiers of all disabilities and their families for over 25 yearsServ

dless of Regaryour age, or

s age your child’ ’s age

ll disabilities and their families for over 25 years

r 25 years

rust I

www

TTrust I Helping families plan for the financial e of their loved onefuturre of their loved one

rust IITTrust II Helping people with disabilities fund their own trust

r the financial

.thearctrust.orgw

abilities fund

g y , or disability y,

planning for e is the futur

tant.impor


RG 05.14_RG 09.05 5/19/14 5:02 PM

Option three is when the Court simply rejects the parties’Conditional Agreement withoutmaking a counterproposal. When the Court refuses to acceptConditional Agreements, it’s usual-ly without offering a counterpro-posal. In this event, or if the partiesdo not accept the Court’s counter-proposal under option two, “theparties shall proceed as if no condi-tional agreement had been filed in the first place.” Admis. Disc. R.23(11)(c). That rule continues: “A conditional agreement shall notbe admitted into evidence at anyhearing of the matter.”

Do you want to look behindCurtain B?

With the stage set, let’s consid-er Kinnard and Dilk. For the firsttime since the lawyer discipline system has been governed byAdmission & Discipline Rule 23,the Court revealed that the respon-

dents and the Commission submit-ted Conditional Agreements thatthe Court rejected because theywere not severe enough. The Courtalso revealed that both respondentsrejected the Court’s counterpropos-als for discipline and took theircases to hearing. Lastly, the Courtrevealed that the respondents, withthe benefit of a more fully devel-oped record, urged the Court toorder sanctions similar to what theyand the Commission had previous-ly proposed. But in both cases, theCourt wasn’t having it. It enteredorders of discipline identical towhat it had counter-proposed afterrejecting the earlier ConditionalAgreements. In other words, theCourt was not convinced by themore developed record that thefacts were sufficiently differentfrom those presented in theConditional Agreements to warranta different sanction from what theCourt had counter-proposed.

It is unquestionably a boldmove to reject the Court’s counter-proposal. But with the assurancethat the parties can proceed after a rejection as if no ConditionalAgreement had been submitted and with the further assurance thatthe Conditional Agreement is notadmissible into evidence, the theoryof the process is that the respon-dent gets to litigate the matter on a clean slate without the specter of the rejected Conditional Agree-ment hanging over the respon-dent’s head. The respondent shouldbe able to make a convincing casein a contested proceeding for a lesser sanction. It could happen,but not in these two cases.

I pause here to raise an unre-solved question: At a hearing,which takes place “as if no condi-tional agreement had been filed,”can the Commission use the reject-ed Conditional Agreement toimpeach the respondent, albeitwithout offering it into evidence?As a practical matter it would befoolhardy for a respondent to testi-fy at odds with the stipulated factsin the Conditional Agreement. But the respondent, while saddledwith the stipulated facts in theConditional Agreement, should befree to argue favorable inferencesfrom those facts, dispute whetherthe facts satisfy the elements for aparticular rule violation, and arguethat the facts support a morelenient sanction.

To be clear, the Court inKinnard and Dilk did not say that it was ordering six-month suspen-sions without automatic reinstate-ment because it was going to turn a deaf ear to the respondent’s evi-dence at the hearing. Indeed, I amconfident that the Court fully con-sidered the evidence in each case,but found it to be unpersuasive in justifying a lesser sanction.

ETHICS CURBSTONE continued from page 31


RG 05.14_RG 09.05 5/19/14 5:02 PM

Nonetheless, the Court couldhave written orders in both casesreaching the same results, withoutmentioning that its earlier counter-proposals for the same sanctionshad been rejected by the respon-dents. Reference to the rejectedcounterproposals seems not onlyunnecessary, but could also leavethe erroneous, but unfortunate,impression that the respondent, not the Commission, now has theburden of proving that a differentsanction should be ordered. Thisnot entirely unjustified mispercep-tion might chill the occasionalrespondent’s decision to reject theCourt’s counterproposal and optfor developing his case for a morelenient sanction at a contestedhearing.

Vanishing confidentiality

The Court’s description of therejected Conditional Agreementsseems contrary to the spirit, if notthe letter, of the two provisions ofRule 23(11)(c), discussed earlier,that a respondent may proceed “as if no conditional agreement hadbeen filed” and that the conditionalagreement shall not be admittedinto evidence. In other words, therespondent should be able to rejectthe Court’s counterproposal and go forward with the matter on acontested basis confident that therejected counterproposal will notcreate a de facto shift in the burdenof proof on what is the appropriatesanction in the case.

As a formal matter, the Rule23(11)(c) reference to “proceedingas if no conditional agreement hadbeen filed” is a direction to the par-ties to the case, which the Courtmight not consider binding on theCourt itself. And the reference tothe Conditional Agreement notbeing admitted into evidence at anyhearing could be understood by theCourt as not limiting its own con-sideration of the rejected agreement

even though it was not part of theevidence submitted into the recordat the hearing. This, however,seems to be generally at odds withthe Supreme Court review proce-dure described in Admission &Discipline Rule 15, which contem-plates that the Court’s review willbe on the Hearing Officer’s reportof the proceedings at the hearingand the evidentiary record devel-oped at the hearing.

The Court’s description of the terms of a rejected ConditionalAgreement also seems inconsistentwith Indiana Supreme CourtAdministrative Rule 9(G)(2)(b)(xi),which states that “proceedings andpapers in attorney disciplinary mat-ters that relate to … statements ofcircumstances conditionally agree-ing to discipline, and affidavits ofresignation or consenting to disci-pline pursuant to Admission &Discipline Rules 23” are excludedfrom public access and confidential.Had the Court not described theConditional Agreements in itsorders in Kinnard and Dilk, thepublic would have had no way of knowing that the Commissionand the respondents had tenderedConditional Agreements, that theCourt had rejected them, that theCourt had made counterproposals,and that the respondents hadrejected the Court’s counterpro-posals.

The counter to this concern is that there should be more trans-parency in the lawyer disciplineprocess. Fair point. But if trans-parency is to now extend to thedetails of rejected ConditionalAgreements and the Court’s coun-terproposals, the rules should bechanged to give respondents andtheir counsel (I was not counsel ineither case) advance notice that thecontent of those agreements mightnow become a part of the publicrecord.

ConclusionHave Kinnard and Dilk

changed the rules of the game? In some ways yes, in some ways no.One thing that has changed is thatlawyers can no longer predict withconfidence that the terms of reject-ed Conditional Agreements will be confidential. Something thathasn’t changed is that ConditionalAgreements are still a fine way toresolve lawyer discipline cases whenthe Commission and the respon-dent are able to reach a commonunderstanding of the basic elementsof a case, including the appropriatesanction. Somewhere in between is a lingering uncertainty overwhether, regardless of what therules say, the practical burden ofproving an appropriate sanctionshifts to the respondent who rejectsthe Court’s counter-proposed sanc-tion. One can no longer say withconfidence that after Kinnard andDilk the follow-on proceedingsafter rejection of a counterproposalwill take place “as if no conditionalagreement had been filed in the firstplace.” �


Pay your 2014-15ISBA dues onlineat www.inbar.org

RG 05.14_RG 09.05 5/19/14 5:02 PM

Earlier this year, the ISBAWellness Committee hadthe pleasure of hearing

Dr. Carol Kennedy-Armbrusterspeak about the importance ofmovement in the workplace. Dr.Kennedy-Armbruster is a facultymember with the School of PublicHealth at I.U., Bloomington, having received her undergrad-uate degree from the University ofIllinois, her master’s in exercise andsport science from Colorado StateUniversity and her Ph.D. at IndianaUniversity in human performance.

Dr. Kennedy-Armbruster presented a compelling talk on the importance of movement in the workplace vis-à-vis wellness and fitness – compelling from thestandpoint of both the importanceof getting off your duff and mov-ing and the ease and simplicity ofimplementation. She stressed sim-ple ideas like drink lots of water, so that you walk to take more bath-room breaks; stand as much as pos-sible rather than sit; schedule walk-ing meetings; walk somewhere for lunch; take the stairs instead ofthe elevator; and park further awayfrom work, so that you employmore movement to and from work.Her presentation provided numer-ous studies, some from her work inthis area with the U.S. Navy, whichsupported the idea that one’s well-

ness and fitness can beimproved simply bymoving about in theworkplace.

More recently, an article in the Los Angeles Times by Rene Lynch containedan exhaustive list ofsimple things to do in the workplace thatmight bear favorablyupon one’s wellnessand fitness. We reprintthat article here withpermission. �

How to add a workout at the workplaceWays to add more movement to your workday include taking the stairs, pacing while on the phone and marking walking trails.

1.Walk or bike to work once a week.

2. Don’t park your car in the spot closest to the front door. Instead,find the parking stall farthest away. (Of course, take security into consideration.)

3. Stairs, no elevators.

4. Stop the impulse to email. Instead, get up off your duff and walk to a colleague’s desk to deliver a work message.

5.Walk 15 minutes before work. (That’s 7-1/2 minutes in one direc-tion, and then turn around.)

6.Walk 15 minutes at lunch.

7.Walk 15 minutes after your shift ends.

8.Walk 15 minutes after you park your car at home. Boom. You justput in an hour’s worth of walking.

9. Consider commuting at least once a week. Walking to and from a bus or train stop could be a nice way to break up the routine.

10. Get a headset, or a long handset cord, and pace while talking on the phone or listening to a conference call.

11. No room to pace? Then stand at your desk.

12. Boss won’t spring for a standing desk? Then just stand while you’resorting mail.

13. Stand while you’re reviewing your schedule for the day.

14. Stand while you’re reading paperwork or riffling through files.

15. Need to catch up with a colleague to dissect a hot date? Do it over a walk, not while standing at the water cooler. Speaking of walking andgossiping, how about:

16.Walk-and-talk meetings.

17. Standing meetings.

18. Create “walking trails” in your building. James A. Levine, M.D.,Ph.D., of the Mayo Clinic suggests different colored pieces of duct tape,and signs, to let trail walkers know just how far they’ve gone.

19. Relocate your mailbox to the opposite side of the building.

20. Use the bathroom on the opposite side of the building.

21. Same goes for the microwave.

22. Ditto for the refrigerator.

23. Repeat for the water cooler.

FIT TO

PRACTICE

Improve your fitness by moving!By C. Erik Chickedantz


C. Erik ChickedantzHawk Haynie Kammeyer &

Chickedantz, LLPFort Wayne, Ind.

[email protected]


RG 05.14_RG 09.05 5/19/14 5:02 PM

planning/operational test for deter-mining whether an act was “a dis-cretionary function,” as is requiredunder Ind. Code section 34-13-3-3(7) (2008) for statutory immunity.In Veolia, the City failed to gothrough the Peavler planning/oper-ational test, and thus, the Courtheld that statutory immunity was not established. However, the Court held that the City wasentitled to common law sovereignimmunity because “[t]he govern-ment’s provision of both adequatefire and police protection is anessential service; thus, we recognizea governmental unit’s failure toprovide adequate fire protection asan exception to governmental tortliability under [Campbell v. State,259 Ind. 55, 284 N.E.2d 733(1972)].”

Next the Court addressedwhether the City’s common lawsovereign immunity extended pro-tection to Veolia. Finding “[m]ostinfluential” the insurer’s argumentthat “granting common law immu-nity to a private company – with a fundamental goal of maximizingprofits – invites negligence,” theCourt held that the immunity wasnot available to Veolia. Therefore,“a for-profit, private companyoperating a public water utilityunder contract with a governmen-tal unit” is not protected by thecommon law sovereign immunityto which a city may be entitled.

Smoking ordinance may not treat riverboat casinosdifferently than other bars

In Paul Stieler Enterprises, Inc.v. City of Evansville, 2 N.E.3d 1269(Ind. 2014), the Court consideredwhether an Ordinance issued by the Common Counsel of the City of Evansville violated the EqualPrivileges and Immunities Clause,Article 1, Section 23 of the IndianaConstitution. In a 3-2 vote, theCourt found the Ordinance to be

unconstitutional. The Ordinanceprovided a smoking ban to all barsand taverns, but exempted river-boat casinos. The Court’s majorityopinion did not find the unequalprohibition of smoking to be rea-sonably related to any distinguish-ing characteristic between the river-boat casinos and other bars andclubs. The focus of the opinion was“not on the purposes presumablymotivating the enactment, but onthe disparate treatment it accords.”

In a dissenting opinion joinedby Justice Rucker, Justice Rushfound exempting a riverboat to bereasonably related to distinguish-ing characteristics because of theRiverboat Casino’s “fiscal impacton the local economy and tax revenues” and “[i]t significantlyimpacts the local economy andattracts mostly out-of-town visitors– visitors who are not the primaryfocus of the City’s effort to expandits public health law pro-tecting its residents fromsecond-hand smoke.”

Liability of college and fraternities for hazing injuries

In Yost v. WabashCollege, et al., 3 N.E.3d509 (Ind. 2014), theCourt discussed thepotential liability of a col-lege, a national fraternityorganization and a localfraternity chapter stem-ming from injuries sus-tained by a pledge at afraternity house. Becausethe college did not main-tain exclusive right topossess and control thepremises when it leasedthe fraternity house to thelocal fraternity, it did nothave a duty to protect thepledge from his claimedinjuries. Moreover, the

REC

ENT D

ECISIO

NS 2/14

Appellate civil case law updateBy Curtis T. Jones and John Z. Huang

John Z. HuangBose McKinney & Evans LLPIndianapolis, [email protected]

Curtis T. JonesBose McKinney & Evans LLPIndianapolis, [email protected]


The Indiana Supreme Courtissued seven opinions inthe month of February,

including four civil matters, which are summarized below. The Supreme Court additionallygranted transfer to three civil matters, which are also summarizedin this article. For the month ofFebruary, the Indiana Court ofAppeals issued 14 published civilopinions, several of which are high-lighted herein. The full text of allIndiana appellate court decisions,including those issued not-for-publication, are available viaCasemaker at www.inbar.orgor the Indiana Courts website,www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT

Reach of common law sovereign immunity has its limits

In a unanimous opinion cap-tioned as Veolia Water Indianapolis,LLC, et al. v. National Trust Ins. Co.,et al., 3 N.E.3d 1 (Ind. 2014), theIndiana Supreme Court discussedthe scope and reach of Indiana’ssovereign immunities. After arestaurant was damaged by fire, the insurer of that restaurantargued that the fire department’sservices were delayed because thenearby fire hydrants were frozen. A lawsuit was brought by the insurer, standing in the shoes of the insured, against the City of Indianapolis (“City”) and Veolia Water Indianapolis, LLC(“Veolia”), with which the City had entered a contract to maintainthe fire hydrants.

First addressing the sovereignimmunity claims of the City, theCourt held that the City was notentitled to statutory sovereignimmunity on claims regarding the adequacy of the water supply.In Peavler v. Bd. of Comm’rs ofMonroe Cnty., 528 N.E.2d 40, 45(Ind. 1988), the Court adopted the (continued on page 37)

RG 05.14_RG 09.05 5/19/14 5:02 PM

24. And the coffee maker.

25. And the trash can.

26. Find a coffee spot that’s a brisk10-minute walk away. Make a pointto walk there three times a week.

27. Bosses, take your employees for coffee at aforementioned coffeeshop. Conduct a walk-and-talkmeeting along the way.

28. Operation #fittopractice:Challenge your coworkers to get to 10,000 steps a day on theirpedometer or fitness tracker.

29. Put social media to work. Post your fitness tracker results to Twitter and Instagram each day. Use the hashtag #fittopracticeso we’ll see it too and help cheeryou on.

30. Start a walking club. Threetimes a week, meet before or after work for a 30-minute walk.(Everyone starts together but proceeds at his or her own pace.)Do it indoors and you never haveto worry about the weather.

31. Grab your GPS and map outsimple walking routes outside theoffice. Come up with a variety ofdistances. Create maps. Distribute.

32. Create friendly challengesamong coworkers or departments.Tally up step counts once a month:Losers buy the winners a healthfullunch.

33. Find a race that’s friendly towalkers. Twice a week, coworkerscan gather for a walking session,and then everyone trains on theirown the rest of the time.

34. Unleash your inner “top chef.”Once a week, hold a healthfulpotluck. Everyone brings in arecipe. Vote. Crown a winner.Share the recipe.

35. Instead of Friday night happyhour, how about Friday nighthealthy hour? Bring in wholesomesnacks to share before walking overto the local watering hole for adrink. (Think of all the money andjunk-food calories you’ll save onbar food.)

36. Replace the office candy dishwith a fruit jar.

37. Replace the office candy dishwith a nut jar.

38. Throw out the office candydish.

39. Scout out fast-and-healthfullunch options that are a brisk walkaway. Share the menus.

40. Twice a week, brown bag a healthful lunch.

41. Leave the lunch in a cooler in your car and walk to your car at lunchtime to retrieve it.

42. After eating at your desk, walk the cooler back to the car.(That can all count as No. 5.)

43. Bring your cooler in when youarrive for work and then walk to apark to eat lunch.

44. Consider the businesses within walking distance of your job.Can you get in some walking whileknocking out errands before orafter work, or at lunch? Thinkabout the dry cleaner, post office,pharmacy, farmer’s market.

45. Set an alarm to go off everyhour on the hour. When it does, get up and take a short, brisk strollor stand and stretch – and then getback to work.

46. Bring your coffee in a Thermos,and you can make your coffeebreak a walk break.

47. Start a private Facebook pageand use it to share workouts, web-sites, recipes and anything else thatwill keep everyone encouraged.

48. Do you have a place that wouldbe great for yoga, Pilates or guidedmeditation classes? Consider find-ing instructors to conduct classesbefore or after work.

49.Want to amp up the workdayworkout? Levine suggests a portablehydraulic stepper under your desk.Break it out during lengthy confer-ence calls.

50. Instead of a traditional deskchair, consider a stability ball,Levine said.

51. Turn fitness into a game of tag.When you’re “it,” you must com-plete a walk of a certain distance oractivity before passing the baton toa colleague. “The more creative, thebetter,” says Levine. “The idea is tomake it dynamic, fun and playful.”

Levine encourages challengingemployees to come up with theirown no-cost exercise equipmentthat they can stow under theirdesks. One woman, he recalled,made hand weights out of jars filledwith sand collected on a familyvacation. She couldn’t help butsmile when she reached for theweights and did light arm exerciseswhile listening in to conferencecalls. Another office used fitnesschallenges to settle friendly argu-ments. And one created “steps”using reclaimed wood that employ-ees stepped up and down on duringno-sit meetings. �

Copyright © 2014. Los Angeles Times.Reprinted with Permission.

FIT TO PRACTICE continued from page 34


RG 05.14_RG 09.05 5/19/14 5:02 PM

Indiana Trial Rule 56. The IndianaSupreme Court held that “althougha trial court may indeed makematerial modifications to a non-final summary judgment order, it must do so on the timely submit-ted materials already before thecourt when the order was initiallyentered.” Thus, since the new evi-dence was not properly before thetrial court at the time the partialsummary judgment order wasentered, it could not be consideredfor purposes of reversing that priorruling.

TRANSFER ORDERS

Indirect civil contempt of court versus criminal contempt, and the courts’ power to sanction contempt

In In the Matter of MentalHealth Actions for A.S. SarahTownsend, 997 N.E.2d 30 (Ind. Ct.App. 2013), a nurse, after speaking

RECENT DECISIONS 2/14 continued from page 35


college did not “deliberately andspecifically undert[ake] to controland protect Yost from the injurieshe sustained or to generally preventits students from engaging in inju-rious private conduct toward eachother.” The Court similarly foundno liability could be assigned to thenational fraternity organization, asit too “lacked any direct oversightand control of the individual frater-nity members.” However, becauseYost “was living at the local frater-nity house, subject to the mentor-ship of a Pledge Father from thelocal fraternity, participating in traditions maintained at the localfraternity, [and] involved in thepledgeship program being run bylocal fraternity members,” summa-ry judgment was not available to the local fraternity chapter.Therefore, the Court held that Yost was allowed to pursue hisclaims against the local fraternity,and further found that he may seekan award for punitive damages.

Effect of newly discovered evidence on a court’s prior summary judgment ruling

In Mitchell v. 10th and theBypass, LLC, 3 N.E.3d 967 (Ind.2014), the Court discussed whetherevidence obtained after entry of anorder granting a motion for partialsummary judgment may form thebasis for vacating that order ongrounds that a non-final order is subject to revision at any timebefore entry of a final judgment.The trial court entered an ordergranting a motion for partial sum-mary judgment on grounds thatJames T. Mitchell (“Mitchell”) wasnot personally liable for 10th andthe Bypass, LLC’s (“LLC”) environ-mental damages. About a year later,LLC obtained evidence from a for-mer employee alleging that Mitchellmay be personally liable. LLC fileda motion to vacate, pursuant toIndiana Trial Rule 54(B), and a motion to correct error, citing

occasionally to a coworker abouther marital problems, as well asother stressful situations, filed an “Application For EmergencyDetention” at a mental health facili-ty, seeking a 72-hour emergencydetention of the coworker ongrounds that she was dangerous to herself and others and gravelydisabled. Without having met orevaluated the coworker, a doctorsigned a physician statement, rec-ommending that she be detainedfor 72 hours. The trial court thenissued a detention warrant, autho-rizing police officers to arrest anddetain the nurse’s coworker. Shewas subsequently detained andexamined at a local hospital, andthe examination “found no proba-ble cause to believe that this patientmeets the criteria for involuntarycommitment.”


RG 05.14_RG 09.05 5/19/14 5:02 PM

The trial court found the nursein indirect civil contempt of courtand ordered her to pay her cowork-er’s hospital bills and attorney feesfrom the contempt hearing. TheIndiana Court of Appeals held that the matter should have been pursued as an action for criminalcontempt because the nurse “lied to the court in completing the Application for EmergencyDetention, for the purpose ofinducing the court to issue agroundless warrant.” Despite this holding, the court upheld thetrial court’s sanctions against thenurse as a reasonable exercise of its sanctioning power. The IndianaSupreme Court has granted transfer.

Res judicata acts to bar State Ethics Commission’s complaint against former state employee for personal use of state property

In Indiana State EthicsCommission v. Sanchez, 997 N.E.2d16 (Ind. Ct. App. 2013), a terminat-ed state employee petitioned forjudicial review of the decision of

the State Ethics Commission, whichfound that she violated the prohibi-tion on personal use of state prop-erty and barred her from futurestate employment. The trial courtfound that the Ethics Commissionwas bound by another trial court’sdecision in the prior criminal theftcase against the state employee,namely that there was no probablecause to seize evidence against the state employee, and enteredjudgment lifting sanctions againstthe employee and dismissing theEthics Commission complaint. The Indiana Court of Appealsaffirmed, holding that the EthicsCommission’s finding, namely thatthe ethics complaint of the Office ofInspector General (“OIG”) againstthe terminated state employee forpersonal use of state property wassupported by probable cause, wasbarred by res judicata, since the trial court in the criminal theft case against the employee foundthat the search warrant was (1) not supported by probablecause; (2) the prosecutor did notappeal the trial court’s ruling; and(3) OIG’s probable cause affidavit

in support of its ethics complaintrelied exclusively on the same evi-dence that was suppressed by thetrial court in criminal proceedings.

Regional sewer district cannotsell residential parcels at a taxsale to enforce unpaid sewer bill liens when those liens arethe only liens on the parcels

In In re Carroll County 2012Tax Sale, 993 N.E.2d 635 (Ind. Ct.App. 2013), a regional sewer districtappealed the removal of certain res-idential properties from the countytax sale list based on the determina-tion that unpaid sewer bills werethe only liens on the parcels. The trial court ruled in favor of the property owners and denied the sewer district’s motion to correct error. The Indiana Court of Appeals affirmed, holding thatunder Indiana Code section 13-26-14-4, the regional sewer district’sliens on parcels of real property for unpaid sewer bills could not beenforced by selling the parcels at a tax sale, since the unpaid sewerbill liens were the only liens on theparcels, and the sewer district hadthe available remedy of filing a civilaction to recover unpaid bills andrelated fees assessed against theparcels.

INDIANA COURT OF APPEALS

Court decides not to apply the ‘blue pencil doctrine’ andheightens the level of specificityfor non-compete agreements

In Clark Sales and Service, Inc. v. Smith, 4 N.E.3d 772 (2014), a two-year post-employmentcovenant set forth a series ofIndiana counties in which competi-tion was forbidden, and also pro-hibited competition within a 50-mile radius of the plaintiff’s office.Although the parties agreed that the50-mile radius was reasonable, the



FLORIDA LOCAL COUNSELPlaintiff or Defendant

Ron A. Hobgood, Esq.Former senior partner with Kightlinger & GrayAdmitted Indiana 1971Admitted Florida 1975Active trial practice in central and west coastof Florida since 1994Certified mediator/arbitrator since 1992Board Certified Civil Trial Advocate by the NationalBoard of Trial Advocacy, a Florida Bar Approved AgencyMulti-Million Dollar Advocates Forum member

813-368-4593 tel813-289-4334 fax

[email protected]

The hiring of a lawyer is animportant decision thatshould not be based solelyupon advertisements.Before you decide, ask me tosend you free writteninformation about myqualifications and experience.

RG 05.14_RG 09.05 5/19/14 5:02 PM

Indiana Court of Appeals agreedwith the plaintiff’s claim that theoverall geographic scope of thecovenant was overly broad. Thecourt, however, declined to applythe well-established “blue pencildoctrine” to delete those geograph-ic restrictions that were allegedlyoverbroad and instead struck downthe non-compete covenant in itsentirety. In addition, the courtheightened the level of specificityrequired in identifying an employ-ee’s competitive activities by hold-ing that a covenant may only pro-hibit the employee from engagingin the same kind of activity theemployee engaged in for theemployer, not “competitive” activity in general, even as it relates to the employer’s customers serviced by the former employee.

Action commences upon filingof amended complaint andmotion to amend, and not upon court’s grant of motion to amend

In Magic Circle Corp. v.Schoolcraft, 4 N.E.3d 768 (Ind. Ct.App. 2014), the personal represen-tative of the decedent’s estatebrought a wrongful death actionagainst the lawn mower manufac-turer and, the day before the limita-tions period expired, filed a motionto amend the claim to add defen-dants who manufactured parts forthe mower. The trial court grantedthe motion after the limitationsperiod had expired and subse-quently denied parts manufactur-ers’ motion to dismiss or for judg-ment on the pleadings, and theparts manufacturers appealed. The Indiana Court of Appealsaffirmed and decided to adopt themajority rule in holding that anaction against a new party, broughtin through amendment to a preex-isting complaint, is commencedwhen the motion to amend, and thenew complaint, is filed even though

permission to make the amend-ment is given at a later date.

Motion to dissolve preliminaryinjunction must be filed within 30 days of trial court’sorder granting or denying the injunction

In Kindred v. Townsend, 4 N.E.3d 793 (Ind. Ct. App. 2014),neighbors brought an action toquiet title to property by adversepossession. The trial court grantedthe record owner’s request for apreliminary injunction to preventdamage to the property and deniedthe neighbors’ motion to dissolvethe injunction, which was filed sixmonths later. The Indiana Court of Appeals affirmed and held that under Indiana Appellate Rule14(A)(5), “a party who wishes tochallenge the entry of a preliminaryinjunction order (or the denial of a request for a preliminary injunc-

tion) must initiate their appealwithin 30 days of the trial court’sorder granting or denying therequest for a preliminary injunc-tion. If a party fails to do so, it maynot thereafter seek to dissolve thepreliminary injunction based upongrounds that were known or know-able at the time of the entry of thepreliminary injunction, as thiswould simply be a belated, collater-al attack on the trial court’s initialdecision to enter or deny theinjunction.” The court rejected the plaintiffs’ grounds for dissolv-ing the injunction, namely that (1) the defendants lacked standing;(2) that the trial court lacked juris-diction; and (3) that the defendantshad failed to present sufficient evidence to support the entry ofinjunction, as grounds that wereknown or knowable at the time of the entry of the preliminary


Over 31 years

experience

helping

Hoosier Lawyers

and their clients.

E. Victor Indiano

8310 Allison Pointe Blvd.Suite 204Indianapolis, IN 46250

P: 317.436.7402F: 317.585.8562

www.gadgetlawyers.com


RG 05.14_RG 09.05 5/19/14 5:02 PM

injunction. The court also held that“if a party moves to dissolve a pre-liminary injunction based upon a change in circumstances since the entry of the injunction, and the trial court grants or denies thismotion, then the party has the rightto appeal the trial court’s order dissolving or refusing to dissolvethe injunction.”

County waived right to subrogate damages under the terms of the American Institute of Architects form contract with the general contractor

In Board of Commissioners ofCounty of Jefferson v. Teton Corp.,3 N.E.3d 556 (Ind. Ct. App. 2014),the County, which had entered intoa construction project contract withthe general contractor for court-house renovation, filed suit againstthe general contractor and the sub-contractors, alleging negligence,breach of implied warranties and

breach of contract, alleging that the subcontractor’s negligence wasthe primary cause of the fire thatoccurred during renovation thatseverely damaged the courthouse.The trial court granted the defen-dants’ motions for summary judg-ment, and held that the Countywaived its right to subrogate dam-ages pursuant to the terms of theAmerican Institute of ArchitectsContract (“the AIA Contract”) it entered into with the general contractor. The Indiana Court ofAppeals affirmed and in the processadopted the majority approach toaddress the waiver of subrogationissue under AIA contracts, whichrejects the “Work” versus “non-Work” distinction that priorIndiana cases relied upon. In par-ticular, the majority approachplaced emphasis upon the plainlanguage of the AIA Contract,which stated that the County was “directed to insure the con-struction project and the building

or property it pertains to, and towaive claims against the associatedcontractors for losses covered by its insurance.” The court also notedwith approval the public policybehind the AIA form contract,which “has long been recognized as having as a central tenet itsintention to liquidate and settleconstruction-related claimsthrough non-subrogated insurancecoverage purchased specifically for the project.” �Curtis Jones is a partner at BoseMcKinney & Evans LLP in the firm’s litigation, insurance and appellategroups. While at Valparaiso UniversitySchool of Law, he served as executivesymposium editor for the ValparaisoUniversity Law Review, earned an honors program scholarship, and servedfor a year in an externship with the Hon. Kenneth F. Ripple, U.S. Court ofAppeals, Seventh Circuit. Upon graduat-ing and prior to joining Bose McKinney& Evans, Curtis served as a judicial lawclerk to Justice Theodore R. Boehm on the Indiana Supreme Court. His email is [email protected].

John Huang is an associate at BoseMcKinney & Evans LLP in the firm’s litigation and insurance groups. While at Notre Dame Law School, he served assymposium editor for the Notre DameJournal of Law, Ethics & Public Policy,was a White Scholar, and served as presi-dent of the Public Interest Law Forum.Upon graduating and prior to joiningBose McKinney & Evans, John served as a judicial law clerk to Justice FrankSullivan Jr. on the Indiana SupremeCourt, assistant litigation counsel with the City of Indianapolis Office of Corporation Counsel, and staff attorney with the Indiana Department of Education. His email is [email protected].



• Will & Trust Contests

• Interference with Inheritances

• Guardianship Disputes

• Co-counsel and Expert Testimony in all Indiana counties

PROBATE LITIGATION

Curtis E. Shirley

Toll Free: 877/953-4900151 N. Delaware St., Suite 1700, Indianapolis, IN 46204

Telephone: 317/685-6512 Facsimile: 317/685-6505

E-mail: [email protected] URL: www.shirleylaw.net

RG 05.14_RG 09.05 5/19/14 5:02 PM

In February, Indiana appellatecourts issued opinions on a variety of issues, including

police officers’ use of lies or ultima-tums to gain entry into a suspect’shome or to procure a pat-downsearch; evidentiary and instruc-tional errors; vagueness of the public intoxication statute; and the intent element of intimidation.

The Fourth Amendment and police officers’ use of lies or ultimatums

In two recent cases, the Court of Appeals found FourthAmendment violations based onpolice officers’ use of lies or ultima-tums. In Harper v. State, 3 N.E.3d1080 (Ind. Ct. App. 2014), thecourt reversed Robin Harper’sresisting law enforcement convic-tion where, without any exigent circumstances and after beingdenied consensual entry, a policeofficer lied to gain entry into herhome and was thus not “lawfullyengaged in the execution of theofficer’s duties” under Ind. Code§35-44.1-3-1. When the officerswent to Harper’s residence to arrest her for domestic battery, she refused to open her screen doorand allow them inside. She alsorefused to step outside; so the offi-cers lied to Harper, telling her sheneeded to sign a protective order.When Harper opened the screendoor, the officers stepped inside to arrest her, and she was chargedwith misdemeanor resisting arrestwhen she pulled away from one ofthe officers as he tried to removeher wedding ring after she washandcuffed. Id. at 1082.

Although the officer’s purposefor entering Harper’s home was toarrest her, the court noted he wasstill required to obtain an arrestwarrant before entering. Instead, he chose to use fraud to gain entryinto the home. This was not a situa-tion of hot pursuit or a crime

committed in the presence of theofficer. Id. at 1084. DistinguishingUnited States v. Santana, 427 U.S.38 (1976), the court noted thatHarper never crossed the thresholdof her residence onto her stoop or porch. Harper, 3 N.E.3d at 1085.Given the officers’ unlawful entryinto Harper’s residence, they werenot engaged in the lawful execu-tion of their duties at the time theyarrested her. Thus, the evidence wasinsufficient to support her convic-tion. Id.

Similarly, a police officer’s useof an ultimatum during a trafficstop resulted in an illegal pat-downsearch and suppression of evidencein State v. Cunningham, 4 N.E.3d800 (Ind. Ct. App. 2014). After theofficer properly stopped MichaelCunningham’s vehicle for havingonly one red tail lamp, he toldCunningham he would pat himdown if he left his vehicle to inspectthe broken tail lamp. Absent con-sent by Cunningham, the officercould not have legally conducted a pat-down search because he hadno reasonable suspicion to believethat Cunningham was armed anddangerous. Id. at 805. The courtconcluded that the officer clearlydid not ask Cunningham for per-mission to conduct a pat-downsearch. Instead, he gave an ultima-tum to Cunningham, who had no choice but to submit to the pat-down when he exited the vehicle.Id. at 806. Thus, the State failed toestablish that Cunningham’s pur-ported consent to the pat-down was constitutionally valid; there-fore, the officer’s subsequent dis-covery of marijuana and drug para-phernalia was fruit of the poisonoustree. Judge Brown issued a dissent-ing opinion, expressing her beliefthat in opting to exit the vehicle,Cunningham consented to the pat-down search. Id. at 807.

Vagueness problems with criminalizing ‘annoying’ behavior

In an issue of first impression,the Court of Appeals in Morgan v.State, 4 N.E.3d 751(Ind. Ct. App.2014), held that the subsection of Indiana’s public intoxicationstatute that criminalizes “annoy-ing” another person is unconstitu-tionally vague. Rodregus Morganwas intoxicated as he slept in a Plexiglas bus shelter. When apolice officer awakened Morgan, he smelled alcohol, Morgan wasunsteady on his feet, and his eyeswere bloodshot and glassy. BecauseMorgan was intoxicated and hisbehavior was “annoying,” the offi-cer arrested him. Id. at 754. Thecourt concluded that Ind. Code§7.1-5-1-3(a)(4) is unconstitution-ally vague because it fails to providenotice to enable ordinary people tounderstand the prohibited conduct.It is also unconstitutional “becauseit neither requires that a defendant... specifically intended to annoyanother person, nor does it employan objective standard to assesswhether a defendant’s conductwould be annoying to a reasonableperson.” Id. at 758. Because thestatute does not require the defen-dant to be warned that his behavioris annoying, it allows arbitrary and discriminatory enforcement, as the illegality of conductis based on “the subjec-tive feelings of a particu-lar person at any giventime.” Id. (citing Gaines v. State, 973 N.E.2d 1239,1243 (Ind. Ct. App.2012)). Striking down the term “annoying” as unconstitutionallyvague does not inhibit the execution of the public intoxicationstatute, so the remainder

CRIM

INAL JU

STICE N

OTES 2/14

Police officers’ use of lies or ultimatums, other holdingsBy Jack Kenney

Jack KenneyDirector of Research & PublicationsIndiana Public Defender CouncilIndianapolis, [email protected]



RG 05.14_RG 09.05 5/19/14 5:02 PM

of Ind. Code §7.1-5-1-3(a) stands.Id. at 758-59.

Evidentiary and instructional errors

In Inman v. State, 4 N.E.3d 190(Ind. 2014), a murder and robberyprosecution, the trial court abusedits discretion in allowing a detective

to testify that the defendant,Michael Inman, was a suspect in another crime. This testimonyinvited jurors to make the forbid-den inference of demonstratingInman’s propensity to commit the charged crimes in violation of Indiana Evidence Rule 404(b).Id. at 197.

The trial court also erroneouslyinstructed the jury that the spirit ofthe law would not be fostered if aperson could not be convicted ofrobbing a man he had just killed.The Supreme Court noted that“[i]nstead of dispassionately statingthe law in order to guide the jury’sdeliberations, [this] instructionappears to argue for the State.” Id.at 200. In light of all the evidence,the Court concluded that the likelyimpact of these isolated errors onthe jury was minor; thus the testi-mony and erroneous instruction“did not deprive Inman of his rightto a fair trial or his right to com-plete justice.” Id. at 203.

In contrast, the Court ofAppeals reversed a conviction for Class B felony possession of afirearm by a serious violent felon in Blount v. State, 4 N.E.3d 787(Ind. Ct. App. 2014), due to theerroneous admission of hearsay.The trial court erroneously alloweda police officer to testify that twonon-testifying witnesses providedthe nickname of the perpetrator.The nickname allowed the officer toidentify Shawn Blount as the perpe-trator. In a 2-1 opinion, the courtrejected the State’s argument thatthe non-testifying witnesses’ state-ments were admissible under thecourse-of-investigation hearsayexception, which “is generally irrel-evant because it does not make itmore or less probable that a defen-dant committed the act alleged.” Id. at 791-92 (quoting Kindred v.State, 973 N.E.2d 1245, 1252-55(Ind. Ct. App. 2012)). How theofficers narrowed the investigationto Blount was irrelevant to any contested issue, and the prejudicialimpact of the testimony was great.Thus, the error was not harmless.

CRIMINAL JUSTICE NOTES 2/14 continued from page 41


RG 05.14_RG 09.05 5/19/14 5:02 PM

Intimidation – threats withoutproof of intent insufficient

In McCaskill v. State, 3 N.E.3d 1047 (Ind. Ct. App. 2014), an intimidation prosecution,the State failed to prove that RakieaMcCaskill communicated a threatwith the intent that the complain-ing witness, Tamika Matlock,engage in conduct against her will:i.e., to leave her husband and/orcause her husband to leave her. See Ind. Code §35-45-2-1(a)(1).McCaskill had a 1-year-old childwith Matlock’s husband whenMcCaskill called Matlock fourtimes and threatened to beat herup. She also said she was outside of Matlock’s home. Id. at 1048.

The Court of Appeals notedthere was insufficient evidence of McCaskill’s intent because shenever specified the reason for herthreats toward Matlock. At trial,Matlock admitted she did not knowwhy McCaskill wanted to beat herup. The State argued that becauseMcCaskill and Matlock did nothave a relationship other thanthrough the husband, McCaskill’saim must have been for Matlock toleave her husband, and thus therewas enough circumstantial evidenceto show intent. Id. at 1049-50. ButMcCaskill had been in a relation-ship with the husband for severalyears before threatening Matlock,and “it is not clear why McCaskillwould suddenly start threateningMatlock with that aim.” Id. at 1051.

Although intent may be provenby circumstantial evidence, theconclusion that McCaskill intendedto make Matlock leave her husbandwas pure speculation and not a log-ical inference. Because the Stateargued at trial for the lesser-includ-ed offense of Class B misdemeanorharassment, which was supportedby the evidence, the court enteredjudgment of conviction on thatcharge. Id. at 1051. �

U.S. District Court free CLE June 27

On June 27, the U.S. District Court of the Southern District of Indianawill host a CLE seminar on medical issues in prisoner litigation.

Medical claims by prisoners are some of the most interesting and prevalentcases for which lawyers are recruited to provide representation to indigentplaintiffs. This seminar will provide substantive legal training and will begeared to assist court-recruited counsel in prisoner medical care cases.

Lawyers recently appointed by the court to represent a prisoner andthose interested in accepting pro bono appointments are strongly encour-aged to attend this special seminar. Please forward this announcement toeveryone in your firm. All are welcome whether they are currently workingon a case or not.

This free seminar will be held at the Chase Tower, 111 MonumentCircle, in downtown Indianapolis. It will begin at 8:30 a.m. and end at12:30 p.m. Four hours of CLE credit, including one hour of ethics credit,are anticipated.

This program will be led by the Hon. Judge Magnus-Stinson;Magistrate Judge Dinsmore; Monica Foster, Chief Federal Defender; andAssistant U.S. Attorneys Jill Julian and Jon Bont. Practitioners AliceMorical and Jan Michelsen share their experiences, and opportunities toget involved will be presented.

Please submit the following information to Mary Ellen Henn [email protected] to register: name; firm or organiza-tion; email address; attorney registration number; and phone number.Limited space is available, so please register soon to reserve a seat.

If you have any questions, contact Kristine Seufert, Pro BonoCoordinator, at 317/229-3950. �


RG 05.14_RG 09.05 5/19/14 5:02 PM


EmploymentOpportunities

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 haveexperience with sophisticated estateplanning techniques, trust and estateadministration and charitable planning.Well-developed writing, interpersonaland client management skills are alsoessential requirements. The firm offersan excellent compensation and benefitspackage. Please send résumé to RozHazzard, [email protected].

ASSOCIATE ATTORNEY. Indianapolisdowntown law firm seeks an attorneywith 0-3 years of civil litigation experi-ence. Candidates should possess superior academic credentials (top 20%of class) as well as strong verbal andwritten communication skills. Pleaseemail résumé, transcripts and writingsample to: [email protected] or mail to: Hackman Hulett & Cracraft,LLP, Attn: Hiring Partner, 111Monument Circle, Suite 3500,Indianapolis, IN 46204-2030.

ASSOCIATE ATTORNEY. Growing FortWayne insurance defense firm is seek-ing an associate attorney with 0-5 years’experience preferred. Excellent acade-mic credentials, research and writingskills required. Competitive salary. Emailrésumé, transcript and writing sample, in confidence, to: [email protected].

MID-SIZED CHICAGO law firm is look-ing for a litigation associate with 2-6years of experience. Indiana and Illinoislicense required. Please contact PatriciaMorrow, Human Resource Manager, at 312/321-8423.

Employment Desired

LOCAL COUNSEL, northern and central Illinois. AV-rated, Illinois/Indianalicensed civil litigator. Available for local counsel assistance with injury and business disputes and related discovery, plaintiff or defendant, state or federal. Please contact Howard L. Huntington, [email protected], 815/355-2780.

WORKER’S COMPENSATION.Evansville attorney Kevin R. Bryantseeks referrals on worker's compensa-tion cases statewide. Please telephone812/437-9991.

FRED PFENNINGER, COMMERCIAL & other collections. When you need helpcollecting your judgment. On faculty for over 30 seminars on collection law.Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500,[email protected].

QDRO PREPARATION by Indiana attorney. Reasonable rates, quick turn-around, assistance at any stage of thedissolution, from discovery through planand court approval. For information,email [email protected] or call 260/755-0873.

INDIANAPOLIS IMMIGRATION attorneyseeks professional or co-counsel posi-tions with Indiana attorneys in the prac-tice of immigration law. Over 25 years’experience in immigration. Will handleadjustment of status, change of status,labor certificates and other matters.Also, will attend interviews atIndianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes,P.C., 317/639-1210, [email protected]

VETERANS DISABILITY. Acceptingreferrals of veterans' disability, militaryMedical and Physical EvaluationBoards, Courts Martial, military discharge upgrade and Boards forCorrection of Military Records casesthroughout Indiana and across the country. Bosley & Bratch, 800/9536224,[email protected],www.lawyers4veterans.com.

EMPLOYMENT LITIGATIONIndianapolis area attorney available for referrals and co-counsel affiliationson wide range of employment matters.25+ years of experience representingbusinesses and employees. Robert S.Rifkin, Maurer Rifkin & Hill, P.C.,317/844-8372.

ERISA CLAIMS, long-term disability,health insurance claims, life insuranceclaims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad RippleAvenue, Indianapolis, IN 46220,[email protected]

INSURANCE DEFENSE & coverage.AV-rated northwest Indiana insurancedefense firm with over 75 years of com-bined experience in insurance practiceis available to work with insurance companies on coverage issues and torepresent insureds in litigation through-out northern Indiana. Huelat Mack &Kreppein P.C., 450 St. John Rd., Suite204, Michigan City, IN 46360, 219/879-3253, [email protected].

CLASSIFIEDS

Practice managementmade simple

Completely Web-based, Clio is a practice-manage-

ment system that is specificallydesigned for solo practitionersand small law firms. Simplifythe critical business compo-nents of your legal practiceusing Clio, which includes accu-rate time tracking, online billingand invoicing, secure collabora-tion and communication tools,business productivity andreporting solutions and somuch more. As an ISBA mem-ber, you are eligible to receive a 10 percent discount on your subscription. Visit www.goclio.com/landing/inbarto sign up today. �

Bradtke Reporting Licensed & Certified Court ReportersServing Central & Southern IndianaBradtkeCourtReporters.comCourtReportersIndiana.com

(708) 334-3895 • (860) 3-REPORT

TAYLOR & COMPANY Specializes in the liquidation of fine jewelry, collectibles,

high-end furniture, decorative arts, art, coins and antiques. Jewelry, art and antiques experts, as well as an attorney on staff, offer a combined 100 years of experience.

Locations in Warsaw & Indianapolis

Discreet • Confidential • Personal • Professional • Profitable

574-267-0101 • [email protected]

ASSOCIATE ATTORNEYInsurance Defense and Commercial Litigation

Carson Boxberger seeks a litigator with 2-5 years insurance defense and/or commercial litigationexperience who desires to develop into a �rstchair trial lawyer. Case management experiencepreferred. Strong academic record and superior work ethic essential.

Email resume, academic transcript and references to: [email protected]

301 W. Je�erson Blvd., Suite 200 • Fort Wayne, IN 46802www.carsonboxberger.com

RG 05.14_RG 09.05 5/19/14 5:02 PM


APPRAISALSStamp & Coin Collections

30 Years ExperienceKnight Coin & Stamp

237 Main St., Hobart, IN 46342219/942-4341• 800/634-2646

www.knightcoin.comA.N.A. Life Member No. 867

600+ appeals30+ years experience

Stone Law Office & Legal Research26 W. 8th St., P.O. Box 1322

Anderson, IN 46015

765/644-0331 800/879-6329765/644-2629 (fax)[email protected]

David W. Stone IV Cynthia A. EggertAttorney Paralegal

CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father andbrother practiced many years in Marion.Enjoys interacting with Indiana lawyers.Handles transactions, ancillary probatesand 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, [email protected]; www.jbrownelaw.com

FLORIDA ANCILLARY PROBATE in most counties. Call collect, PaveseLaw Firm, 239/542-3148, attn: MichaelGennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904.

LOCAL COUNSEL, southwesternIndiana. 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, [email protected]

STEVE TUCHMAN, IMMIGRATION.Experienced practitioner for statewidereferrals, consultation and co-counselpositions. Lewis & Kappes, P.C.,317/639-1210, [email protected]

WORKER’S COMPENSATION.Indianapolis attorney Charles A. Carlockseeks referrals on worker’s compensa-tion cases statewide. Tele., 317/573-5282 or 866/573-5283.

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

SpecialServices

OSHA SAFETY EXPERT WITNESS in construction and industry accidents.U.S. Dept. of Labor Authorized Trainer.Former OSHA inspector. OSHA Safety Expert, Inc., contact Wendell Rust toll-free at 877/544-4323, email:[email protected]

COAL, OIL, GAS – Leases, Surface Use Agreements, Title Opinions, Due Diligence, Royalty Determination. Hugh R. Hunt, Attorney at Law, 10 N.Court St., Sullivan, IN 47882; phone,812/241-1480.

239.254.2900 hahnlaw.com

Florida Estate Planning & Probate

BRAD A . GALBRAITH

H A H N L O E S E R & PA R K S L L P

MISSING HEIRS & WITNESSES located, intestate heirs verified.Complete family lineage establish-ment. Mark E. Walker & Company,LLC – Indiana Private Investigator Firm; 800-982-6973;www.MissingHeirsLocated.com

HEALTH CARE PROVIDER licensedefense. Experienced nurse attorney is available to represent nurses, physi-cians, pharmacists, dentists, veterinari-ans and other licensed health care pro-fessionals before the various licensingboards or to respond to an attorney general’s office license investigation.Lorie A. Brown, RN, MN, JD,[email protected], 317/465-1065.

Miscellaneous

MEDIATION TRAINING: Certified 40-hour Domestic Relations MediationCourse, July 17-21, Fort Wayne. This course sells out – only 22 seatsleft! To register: 260/483-7660 orwww.JanetMitchellMediator.com.

PRIME OFFICE SPACE for rent. 10th floor, beautiful, prestigiousKeystone Crossing address availablewith all the amenities (receptionist, high-speed Internet, multifunction copier, kitchenette, 3 conferencerooms). Room for 2-3 attorneys withsupport staff. Surround yourself withseasoned legal professionals. Interestedor for more information, contact RachelMilner, [email protected] or 317/571-1101.

USE WHAT YOU’VE GOT PrisonMinistry Keeping Families Connected is looking for prospective attorneys toserve on our board of directors. Wemeet once a month for now on the 4thThursday from 5:30-6:30 p.m. Held atIvy Tech Community College, 2535 N.Capitol Ave., Indianapolis, IN 46208.Please call Cecelia Whitfield, 317/728-2518, if you have any questions.

OFFICE SPACE: Attorneys located inthe Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarialservices available. Possible referrals.Low rent. Reply to [email protected] reference “Gold Building” officespace.

Email your classified word ad to [email protected]. You will be billed upon publication. ISBA members: 40¢ per word,$10 minimum; nonmembers: 60¢ per word,$15 minimum.

Appellate Attorney seeks referrals/projects for hire

Experienced in appellate advocacy

for civil & criminal appeals, including PCR representation

Will travel to meet with clients as needed

R. Patrick MagrathAlcorn, Goering & Sage, LLP

[email protected]

APPELLATE COUNSEL

RG 05.14_RG 09.05 5/19/14 5:02 PM

FAIR COMMEN

T

In defense of the practice of lawBy Randall K. Craig

be remembered that “when physicians were still bleed-ing their patients and treating them with leeches,lawyers were writing the Constitution of the UnitedStates of America.”

Those of us who have been in the trenches formany years (I will soon be completing my 39th year in the practice of law) know that it is the nature of lawand its practice that gives rise to criticism. People uselawyers and the legal system as a way of achieving apolitical end or maintaining a particular hegemony,which is one reason why we hear so much about our“litigious society.” In fact, there is less tort litigationtoday than there was 150 years ago. Many who deni-grate trial lawyers never hesitate to rush to the court-house when it suits their own personal or political purposes. In fact, today we live in a medicated andmedicalized society, rather than a litigious or legalisticone, with almost 20 percent of our GDP committed tohealth care, while only between 1-2 percent of GDP isthe result of legal and liability costs. Every knowledge-able attorney knows that there are many more legiti-mate cases that are never brought than there are frivo-lous cases that are actually filed, and they also knowthat large settlements are rarely in fact as significant as the reports suggest, and they do not stem fromunmeritorious claims. Because I work with the elderlyand the disabled, I am very cognizant that there aremultitudes of people who are injured by medical mal-practice, many of whom die, for whom claims are neverbrought because they have no one to pursue the claimor because the process is so expensive and difficult.Please know that I am a staunch conservative and not a trial lawyer, but I have been in the practice longenough to know the truth. It is time that we as a profes-sion stand up and speak that truth.

I am fatigued by the hoary comments that deni-grate our profession. We should confront the calum-nies and the canards, and remind people that our free-doms are based on the Rule of Law and that the onlybarrier between them and a malevolent government or rapacious business interest is the courts. Those who denigrate lawyers do so in part to undermine oursystem, and we must fight against it. Repining is fruit-less; instead we should respond to dishonest attacksagainst our profession and our legal system with verve.The attenuated arguments of those who have an axe to grind should be answered – our populace needs to be educated about history and truth. �


Recently, a distinguished bar leader posited that the genesis of the negative public attitudetoward lawyers was the result of an emphasis

on money. I disagree. Lawyers as a group are no moremercenary than any other identifiable professionalgroup. We are no more to blame for the actions ofsome than the membership generally of any other profession. The public’s belief is due in significant part to the fact that it is culturally de rigueur to deni-grate lawyers. That criticism foments further criticism,in the nature of a self-fulfilling prophecy. In otherwords, it is more a matter of perception than fact.Irrespective of our actions, our pro bono efforts andour frequent and tireless representation of those inneed, the lambasting continues unabated. Lawyers,unfortunately, rarely defend themselves or their profes-sion. Many fall into the trap of blaming themselves. We should stop sheepishly accepting blame that we do not deserve. It is time that we confront such attacksboth individually and as a professional body.

Lawyers should refuse to listen to deprecating jokesand lawyer-bashing diatribes. When they occur, weshould respond. Would we listen to insulting epithetsbeing hurled at a minority group? I think not. Thenwhy should we accept disparaging remarks about our-selves? People should be reminded that lawyers as agroup provide more free assistance to the needy andvolunteer their time to charities and benevolent causesmore than any other identifiable professional group.People should be reminded also that the Declaration ofIndependence was conceived of by lawyers and writtenby a lawyer, namely Thomas Jefferson, and that therewere more signers of the Declaration of Independencewho were lawyers than those who were members of anyother business or profession. Lawyers also wrote ournation’s Constitution, and just as important, passage

of the U.S. Constitution was promoted by lawyers (notably by the triumvirate ofJohn Jay, Alexander Hamilton and JamesMadison, whose written arguments wereultimately compiled as The Federalist).Further, the majority of the presidents ofthe United States have been lawyers – withthe two most notable, perhaps, who servedduring a time of serious conflict, beingAbraham Lincoln and Franklin D.Roosevelt. Although I cannot identify the source, it was once said and should

Randall K. CraigAttorney at LawEvansville, Ind.

[email protected]

RG 05.14_RG 09.05 5/19/14 5:02 PM

Res Gestae - May 2014

Documents

Transcript of Res Gestae - May 2014