A Few Helpful Tips for Indiana Appellate Practitioners

Last week the Indiana Public Defender Council held its annual Appellate Advocacy CLE. Usually this is the “event of the year” for appellate public defenders because those of us crazy enough to do this work gather together to learn and to commiserate :) It always feels like that list shrinks every year, as we lose appellate lawyers to retirement or, as in the recent case, to the Court of Appeals.

Speaking of losing good appellate practitioners to the appellate courts, this year’s virtual event included an interview with the Court of Appeals’ newest jurist, The Honorable Leanna Weissmann. Judge Weissmann not only left the practice of appellate defense law to become a member of the Court of Appeals, but she “poached” another highly respected appellate defense attorney, Kim Jackson, who now serves as her senior clerk.

The virtual event also included Professor Joel Schumm’s famous annual court statistics and case law update, an hour on ethical obligations as an appellate public defender, a Q&A panel with former appellate clerks, and a spirited presentation on drafting a persuasive statement of facts.

As always, I learned tons of tips on how to hone my own appellate writing, but I thought I would share a few of those tips that really stood out to me.

The Court of Appeals Motions Panel

The motions panel makeup has changed in the last few years. The panel is now comprised of two senior judges and one current member of the Court of Appeals. The panel meets weekly to decide pending substantive motions, and the judges on the panel rotate monthly.

Petitions to Transfer

If you are filing a petition to transfer in a criminal case, your petition will be reviewed by the Justices’ individual clerks, who will prepare a memorandum for their particular justice to assist the Justices in their determination of whether to grant the petition, set the matter for oral argument, etc. If you are filing a petition to transfer in a civil case, your petition will still be reviewed by the Justices’ individual clerks, but the memorandum will be prepared by the Court’s staff attorneys, who also review the petitions.

The former appellate clerks on the panel indicated they read the petition to transfer first, before reading any other briefs prepared. They preferred for the petition to transfer to stand on its own; practitioners should not incorporate sections of their prior briefs by reference or otherwise assume the Supreme Court has read them before reading the petition.

Finally, even though it is not required by the Indiana Rules on Appellate Procedure, the former appellate clerks noted a table of authorities in a petition to transfer is always helpful to assist the clerks in their review.

Reply Briefs

In those cases where you decide to file a reply brief, do not simply jump right into replying to your opponent’s contentions. Instead, start by again framing the issue for the Court as you see it. Refocus the Court’s attention on your arguments. Similar to the petition to transfer, your reply brief should somewhat stand alone. Assume it has been some time since the reader reviewed your initial brief and briefly remind the reader of the case as you see it.

A Helpful Resource

To assist appellate lawyers in enhancing their brief writing skills, Judge Weissmann recommended the following book: Point Made by Ross Guberman. The book is written in small, easily digestible sections for the busy practitioner who has only a few minutes a day for professional development.