For more than forty years, the Indiana Supreme Court has been aided in promulgating court rules by a select group of leading practitioners, judges and professors. The present organization of the Indiana Supreme Court Committee on Rules of Practice and Procedure (Rules Committee) began on November 13, 1979, when Indiana Trial Rule 80 was revised. The predecessor to the present committee was the Advisory Committee on Revision of Rules of Procedure and Practice which had existed since January 1, 1970.
Few records from those early days remain. The revised rule retained several members of the Advisory Committee as members of the initial Rules Committee. Mr. Charles W. Hoodenpyl, Jr. served as Chair and Dean William F. Harvey served as Vice-Chair of the new Rules Committee. Other members carried over were the Honorable Henry A. Pictor, Judge of the Ripley Circuit Court, the Honorable Patrick D. Sullivan, Judge of the Indiana Court of Appeals and Mr. Michael S. Fischer. New members to the Committee were Mr. Jerry Belknap and Mr. F. Boyd Hovde.
The Committee dealt with a wide range of topics that first year, but was predominately occupied with changes to the appellate and discovery rules; issues that today’s Rules Committee still addresses.
The Committee’s structure, duties and activities are spelled out in Trial Rule 80. The membership of the Committee represents a diverse cross section of the legal community. By rule one member must be a judge of the Court of Appeals and one must be a judge of a trial court of general jurisdiction. By tradition, at least one member is typically from each of the following categories: a prosecuting attorney, a criminal defense attorney, a civil plaintiff’s attorney, a civil defense attorney, and a member from the world of academia. In addition to coming from different legal practices the members come from different parts of the state.
In addition to working with the rules of practice and procedure, the Supreme Court has directed the Rules Committee to conduct a contiguous study of the Indiana Rules of Evidence and submit to the Court from time to time recommendations about those rules. (Ev.R. 1101) Presently, the Committee is conducting a comparison between the Indiana Rules of Evidence and the newly adopted Federal Rules of Evidence with the goal of publishing for comment proposed amendments that would comport the Indiana Rules of Evidence with the Federal Rules when appropriate.
Today, the Committee consists of Mr. Theodore F. Smith, Jr., Chair; Ms. Jessie A. Cook, Vice Chair; the Honorable L. Mark Bailey; Mr. Charles L. Berger; Professor Jeffrey O. Cooper; the Honorable Jeffery J. Dywan; Mr. Keith A. Henderson; Ms. Maggie L. Smith; and Mr. Christopher G. Scanlon. Lilia G. Judson, Executive Director of the Indiana Supreme Court Division of State Court Administration serves as the Committee’s Executive Secretary and Tom Carusillo, the Division’s Director of Trial Court Services, serves as attorney for the committee.
Theodore F. Smith, Jr., received his undergraduate and law degrees from the University of Notre Dame. He has been a member of the Supreme Court Committee on Rules of Practice and Procedure since 2003. He is a member of the Indiana Trial Lawyers Association and has served as its President. He is also a member of the Indiana State Bar Association and has served on its Board of Managers; and a member of the National Organization of Social Security Claimant’s Representatives. He was listed in Best Lawyers in America (2005-2012) and named in Indiana Super Lawyers 2004-06 and 2009-2012. Mr. Smith has served as faculty member in numerous continuing legal education seminars.
Jessie A. Cook maintains a solo practice in Terre Haute where she represents individuals accused of major felonies and capital offenses in state and federal courts. She graduated from the Indiana University Maurer School of Law and has served for the past 20 years as an adjunct professor of trial advocacy at both the Indiana University Robert H. McKinney School of Law in Indianapolis and the Maurer School of Law in Bloomington. She is a Fellow of the American College of Trial Lawyers and serves on the College’s Access to Justice and Indiana State Committees; a Master Fellow and former board member of the Indiana Bar Foundation; a member of the ISBA’s Board of Governors; a council member of the ISBA’s Criminal Justice Section; and is a member of the ACLU, the NLG and NACDL.
The Honorable Lloyd Mark Bailey has served continuously since his appointment to the Indiana Court of Appeals in 1998. Judge Bailey earned a B.A. from the University of Indianapolis, a J.D. from Indiana University Robert H. McKinney School of Law, and an M.B.A. from Indiana Wesleyan University. He was a practicing attorney and served as an administrative law judge before being elected judge of the Decatur County Court in 1991. From 1992 until his appointment to the Court of Appeals, he served as judge of the Decatur Superior Court. Judge Bailey helped organize the state’s pro bono program and served as the first chairperson of the Indiana Pro Bono Commission and was awarded the Pro Bono Publico and Randall Shepard Awards. In 2006, he was designated Distinguished Jurist in Residence at Stetson University College of Law and, in 2009, he was elected as an ASTAR Science and Technology Fellow. He also serves on the Board of Managers of the Indiana Judges Association, on the Council of the Indiana State Bar Association’s Appellate Practice Section, and on the Board of the Indiana University Robert H. McKinney School of Law Alumni Association. Judge Bailey is also an adjunct professor at the University of Indianapolis.
Charles L. Berger graduated from the University of Evansville and received his law degree from the Indiana University Robert H. McKinney School of Law. After graduating he returned to Evansville and practiced law with his father, Sydney Berger, and has continued his father’s tradition of representing the working people in the Evansville area. His primary areas of practice are personal injury law, labor law, and civil litigation. He has served on committees and boards in the Indiana Trial Lawyers Association, American Board of Trial Advocates, Association of Trial Lawyers of America, Indiana Bar Foundation, American Inns of Court Foundation and the Indiana Judicial Nominating and Qualification Commission. Charlie and his family have served the Evansville community by establishing the Berger Award at the University of Evansville in memory of his parents, Sadelle and Sydney Berger, as well as the Sydney and Sadelle Berger Faculty Award at the University of Southern Indiana.
Jeffrey O. Cooper is an associate professor at Indiana University Robert H. McKinney School of Law, where he has taught since 1996. Professor Cooper teaches Civil Procedure, Evidence, Federal Courts, and Legislation and writes in the areas of statutory interpretation, civil procedure, and the decision-making processes of appellate courts. He has published in the Ohio State Law Journal, the Tulane Law Review, and the Brooklyn Law Review, among other journals. Prior to joining the faculty at Indiana University Robert H. McKinney School of Law, Professor Cooper clerked for the Honorable Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania and for the Honorable Guido Calabresi of the United States Court of Appeals for the Second Circuit. He also practiced law with the Washington, D.C. firm of Covington & Burling. He received his A.B. degree from Harvard University and his J.D. degree from the University of Pennsylvania Law School.
The Honorable Jeffery J. Dywan has been a Judge of the Lake County Superior Court in Lake County serving in the court’s Civil Division since his appointment to the bench in 1991. He served as Chief Judge of the Superior Court from 1998 to 2000. Judge Dywan is a member of the Indiana Supreme Court’s Judicial Technology and Automation Committee. He was the 1st District representative on the Board of Directors of the Indiana Judicial Conference and he is a former member and chairman of the Indiana Judges Association Civil Instructions Committee. He also served as a member of the Supreme Court’s Alternate Dispute Resolution Committee. He is the author of An Evaluation of the Effect of Court-Ordered Mediation and Proactive Case Management on the Pace of Civil Tort Litigation in Lake County, Indiana (2003 J.Disp.Resol. 239), he is a contributing author to Indiana Pattern Jury Instructions-Civil (Second Edition, Revised, Ind. Judges Assoc. 2001), and he is a contributing author to Indiana Evidence Workshop Manual, Professional Education Systems Institute, (1993 – 2006). Judge Dywan was the recipient of the Civility Award presented in 2006 by the Litigation Section of the Indiana State Bar Association. Before taking the bench, Judge Dywan worked in the private practice of law in Lake County, Indiana for 17 years. During that time he also worked as a deputy prosecuting attorney, a public defender, and taught legal courses at Calumet College and Indiana Vocational Technical College. Judge Dywan is a graduate of Purdue University (BS), Valparaiso University School of Law (JD) and The University of Nevada-Reno (MJS).
Keith A. Henderson is the Floyd County Prosecutor and a former State Trooper who served as First Sergeant and Legal Adviser for the Indiana State Police. He was appointed as the Crawford County Prosecutor in 1998 and elected to a full term the following November. In 2002, Mr. Henderson was elected to the Office of the Floyd County Prosecutor, and he has served continuously since then having won re-election in 2006 and 2010. He is a member of the Board of Directors for the Indiana Prosecuting Attorney’s Council, a past Chairman, and currently serves as the Chairman of its Ethics Committee. In December 2010, Mr. Henderson was selected by his peers as the Indiana representative to the National District Attorneys Association (NDAA) to represent the interests of Indiana prosecutors. Mr. Henderson received a B.A. in Criminal Justice from Valparaiso University and a J.D. from the Louis D. Brandeis School of Law at the University of Louisville.
Maggie L. Smith practices law in Indianapolis as Counsel for the law firm Frost Brown Todd in the appellate and litigation practice areas. She has been involved in hundreds of appeals, and has represented businesses, individuals, and groups in all types of appellate proceeding at every level of the state and federal appellate courts, and also has significant experience representing amicus curiae parties before Indiana’s appellate courts. Prior to entering private practice, she served as a judicial law clerk with the Indiana Supreme Court and was an Adjunct Professor of Law at Indiana University, teaching legal writing and reasoning and appellate advocacy. Maggie has been actively involved in drafting the Indiana Appellate Rules, is a leader in the state and national appellate practice communities, and is a frequent presenter on appellate topics. She is involved in various bar association committees at the state and local level. She is also active in numerous civic and charitable organizations. She earned her B. A. degree at the University of Arizona and her J.D. degree from the University of Arizona, James E. Rogers College of Law.
Chris Scanlon practices law at the firm of Faegre Baker Daniels LLP in its Indianapolis office. He concentrates his practice in the area of business and commercial litigation. He is a member of that firm’s Management Board and has served as chair of the firm’s litigation section. Mr. Scanlon serves on the U.S. District Court, Southern District of Indiana, Local Rules Committee and the Committee on Rules and Practice of the Seventh Circuit Court of Appeals. He is First Vice President of the Seventh Circuit Bar Association and will be its President for the year 2012-2013. Mr. Scanlon is a graduate of Indiana University and the Indiana University Maurer School of Law.
Throughout the year the Committee receives proposed rule amendments from sources as varied as the Indiana Supreme Court, the State Bar Association, judges, attorneys, and private citizens. The Committee studies these requests and determines if proposing a change is appropriate. For relatively straightforward matters this process might only take a couple of months. For more complex issues the process may take years. It is not unusual for a proposal to go through several drafts before the Committee settles on one to publish for public comment. Much work and study occurs before the Committee recommends a change to the Court. But also, the committee often undertakes on its own to study and review rules, such as the attorney surrogate rule, rules dealing with e-discovery and the rules of evidence.
Frequently, the Committee is asked, “When do I have to have a proposal to the Committee to have it considered by the Supreme Court?” The answer to this question is not clear cut. The best answer is: “The sooner the better.” For an amendment to be effective January 1, 2014, it should be before the Committee by March 2012. However, if a proposed amendment is straightforward, simple and non-controversial getting it to the Committee by September 2012 may be sufficient for an effective date of January 1, 2014. Experience shows though that most proposed amendments are rarely simple even if they appear that way because of their interaction with other rules. To be safe, proposed amendments should be to the Committee not later than March, or roughly twenty-one months before the effective date. Sometimes, emergencies arise that make this timeline untenable and the Committee does its best to accommodate such situations.
The reason for the length of time it takes a proposed amendment to become a rule is the process that occurs. After review and study, the Committee publishes for public comment those amendments that the Committee plans on recommending to the Court. They are published for comment on the Supreme Court’s website for a period of 60 days. The Committee reviews the comments and, in some cases, makes additional changes to a proposed amendment. Due to this process, the Committee must finish its initial work on a proposed amendment usually no later than October so that the proposal can be transmitted to the Court in May. The Committee sends the proposals being recommended, along with the comments, to the Supreme Court for its consideration.
The Supreme Court generally begins its consideration of proposed amendments that will become effective January 1, in May or June of the preceding year. The Court normally issues Orders the September before the effective date. Not all proposals the Committee recommends to the Court are approved. The Court may reject some in their entirety, while others the Court may further modify. A chart summarizing a proposed rule’s typical path through the process follows:
In the recent past the Committee has worked on a wide variety of rules projects. Some were small, some were large. Among the larger projects, the Committee reviewed and made recommendations for changes to the Appellate Rules and Evidence Rules proposed by the State Bar Association. The Committee also invested a good deal of time reviewing and proposing changes to the new Code of Professional Conduct put forth by the American Bar Association.
Not all of the Committee’s work results in changes. For example, the Committee debated for months a proposal to have the Supreme Court certify Paralegals. Ultimately, a split Committee presented a modified recommendation to register paralegals, which the Court did not accept. Sometimes the Committee’s efforts generate no proposal for change. The Committee invested a substantial amount of time wrestling with a definition for the “unauthorized practice of law”, only to conclude that no change to the status quo should be made.
Notable changes to the Rules arising from the Committee’s work include the Attorney Surrogate Rule (Admission and Discipline Rule 23 § 27), E-discovery rules (Trial Rules 26, 34 and 37), and interlocutory appeals of the grant or denial of class actions (Appellate Rule 14). The Committee also made recommendations to the Court that resulted in the adoption of the custodial interrogation rule (Evidence Rule 617) and procedures for handling cases involving families and households (Trial Rule 81.1).
Currently, the Committee is taking on a project to review the Rules of Evidence in light of the recently passed restyled federal rules of evidence.