Today the Supreme Court of Indiana posted for public comment substantial proposed changes to the Indiana Rules of Appellate Procedure. Below I summarize each proposed rule change, and I comment on my thoughts about the proposal.

Indiana Appellate Rules12, 28, and 29: The Supreme Court has proposed a change to when the transcript and exhibits must be transmitted to the Appellate Clerk. Currently in a criminal appeal, the transcript and exhibits are not transmitted to the Appellate Clerk until after the Appellant has filed his initial brief. This has caused numerous problems. In some cases, the Appellant spends some of his 30-day brief preparation period obtaining a copy of the transcript or exhibits. This is particularly common in cases with audio or video exhibits. Further delay can occur after the filing of the Appellant’s brief when the trial court clerk delays transmission of the transcript and exhibits, thereby causing the Attorney General to seek a new due date for its brief due to lack of access to the transcript and exhibits.

But the proposed rule change should largely eliminate these delays. The proposed change requires the trial court clerk to do two things. First, the clerk must file the transcript and exhibits with the Appellate Clerk at the same time the clerk files the notice of completion of transcript. Second, if the exhibits include audio or video recordings, the trial court clerk must send one copy of the recordings to the Appellate Clerk and a second copy of the recordings to the Appellant.

Something to note: in civil cases where the Appellant receives a copy of the audio and video recordings, upon filing of the initial brief the Appellant must send the recordings to the Appellee. But in criminal appeals and CHINS/TPR appeals, where the Attorney General represents the State, the Appellant is relieved of this duty.

The proposed change to these appellate rules can be found here.

Indiana Appellate Rule 65: Currently, there are two types of decisions handed down by Indiana’s appellate courts: published opinions and memorandum decisions. Published opinions are binding precedent on lower courts and can be cited by a party or an attorney, while memorandum decisions are non-binding and cannot be cited. Under the proposed change, any memorandum decision issued on the effective date or after can be cited as persuasive (not binding) authority by a party or attorney if she so chooses.

During my years of practice, there have been only a handful of times when I wished I could cite to a memorandum decision to support my argument. Moreover, the number of memorandum decisions handed down every day far outnumber published opinions. This change to the rule will require me to pay closer attention to the memorandum decisions, which will require more of my time. So I am ambivalent about this particular change, the language of which can be found here.