ethical issues in appellate practice -...

Indiana State Bar AssociationAppellate Practice Section

Ethical Issues inAppellate Practice

Presenters:

Julia Blackwell GelinasMaggie L. Smith

Frost Brown Todd, LLC

June 13, 2016Appellate Skills Seminar

Contents

I. Efiling Ethics ................................................................................................. 3

A. Client signatures................................................................................. 3

B. Delegation of e-signing to staff........................................................... 3

C. Protecting client confidential information......................................... 4

D. Failure to see or inadvertent deletion of e-filed orders andpleadings ............................................................................................. 7

II. Appellate Amicus Curiae Ethics ................................................................... 8

III. Positional Conflicts On Appeal. .................................................................. 11

IV. Independent Research/ Judicial Notice at Appellate Stage....................... 16

V. Appellate Civility......................................................................................... 23

VI. Presenter Biographies ................................................................................. 26

I. Efiling Ethics

Appellate electronic filing brings great freedom, flexibility, and convenience to

practitioners and courts. But it also provides new ethical considerations.

A. Client signatures

If a court does not require original signatures when e-filing, then an electronic

signature is sufficient. But in some instances, original signatures are still required

for certain pleadings. In those instances, the e-filing attorney must

contemporaneously maintain an original paper signature in the file, or face potential

ethical charges and sanctions.

For example, a snowstorm prevented a client from making the appointment to

sign a bankruptcy petition. The attorney had his paralegal file the petition

electronically during the snowstorm and later obtained the client's signature. The

court held that an attorney who files an electronic petition represents to the court

that the attorney has secured an originally executed petition physically signed by the

debtor before filing the case electronically and that presenting an e-filed document

without such signatures amounted to fraud. In re Wenk, 296 B.R. 719, 728 (Bankr.

E.D. Va. 2002).

B. Delegation of e-signing to staff

“In our increasingly fast-paced world, attorneys face constant pressure to work

more efficiently and increase the volume of their practice. This pressure can tempt

even the most honorable attorney to cut corners. Nevertheless, the process of

reviewing and executing final documents must always be adhered to diligently by the

attorney.” THE HON. JOHN E. WAITES, SARAH LYTLE KISTLER, Think Before You Click

Ethical Implications of E-Filing, S.C. Law., September 2007, at 41, 41-42.

Attorneys must be careful when delegating the signing of documents to

paralegals or secretaries. “An attorney is permitted to provide his login and password

to a trusted paralegal, who can file documents on his behalf; however, ‘[a]attorneys

[who] delegate signatory authority to non-lawyer staff do so at their peril.’” Id. (citing

In re Ulmer, 363 B.R.777, 783 (Bankr. D.S.C. 2007)).

At least one court has held that delegation of electronic filing without proper

oversight can be aiding a non-lawyer in the unauthorized practice of law. See

GEIBank Indus. Bank v. Martin, 97 B.R. 1013 (Bankr. N.D. Ga. 1989) (finding an

attorney assists in the unauthorized practice of law by giving blanket delegation to a

non-lawyer to sign and file documents on his behalf).

C. Protecting client confidential information

The Florida Bar Standing Committee on Professional Ethics, in Opinion 06-1

(April 10, 2006), concluded that lawyers may utilize electronic filing provided that

attorneys “take reasonable precautions to ensure confidentiality of client information,

particularly if the lawyer relies on third parties to convert and store paper documents

to electronic records.” Id. Likewise, the New Jersey State Bar Association Advisory

Committee on Professional Ethics in Opinion 701 (April 2006) concluded that, when

using electronic filing systems, attorneys must safeguard client confidentiality by

exercising “sound professional judgment” and reasonable care against unauthorized

access, employing reasonably available technology. Id.

This takes on greater significance in Indiana, where electronic filing in our

appellate courts make anything filed presumptively accessible by the public. This

raises the ethical stakes greatly, as the failure to protect client confidential

information is less likely to be seen by the public when documents are conventionally

filed. But with e-filing, any member of the public can see your client’s confidential

information (mental health information, trade secrets, custody evaluations, etc.)

unless you assiduously comply with the requirements of Appellate Rule 23(F) and

Administrative Rule 9(G).

The chart on the next page gives an overview of the mechanics of e-filing

confidential information on appeal. (NOTE: This chart does not address the

substantive question of when you must exclude confidential information from public

access and when you can exclude confidential information from public access. That

is an entire CLE on its own. This chart only addresses the mechanics of how to do it

after you have determined it should be done.)

Guidance on Administrative Rule 9 (Access to Court Records)AR 9(G)(2) Cases1 Document Conventional Filing E-Filing

* Situations where

excluded (redacted

or omitted

documents) is

necessary for the

disposition of the

case. A.R.

9(G)(5)(b)(ii)(b)

Notice of

Exclusion

A.R. 9(G)(5)(a)(i)(a)

Must file Notice on white paper as a stand-alone

document

Same as Conventional Filing with these additional

steps:

Filing Code: Notice of Exclusion of

Confidential Info.

Lead Document: Notice itself

Security: Public

Public Version of

Redacted/Omitted

Documents.

A.R. 9(G)(5)(b)(i)

File on white paper as a stand-alone document

Include only non-confidential (public)

information

Confidential (non-public) information must be

redacted (if it is only part of a document) or

omitted (if it is a whole document) from the

Public Version.

EXCEPTION: If an entire document must be excludedfrom public access, do not file a White Public version;the 9(G)(5) Notice serves as the Public Version.


steps:

Filing Code: Varies depending on

document

Lead Document: Whatever is being filed

NOTE: the Non-Public Version will be an

attachment to this Lead Document

(below)

Security: Public

Non-Public

Version

A.R.

9(G)(5)(b)(ii)(b)

Exhibit, attachment, appendix, transcript,evidentiary designations

○ File on green paper only as a stand-alone document:○ File reproduction of ONLY the individual page(s) containing the redacted/omittedinformation;

Non-Public Version must provide reference to thelocation in the Public Version

Motion, memorandum, brief, containingsubstantive legal argument, etc.

○ File on white and green paper ○ Consists of a complete, consecu� vely-paginated replication including both the Publicmaterial on white paper and the Non-PublicVersion material on green paper.

Always marked “Not for Public Access” or“Confidential,” with the caption and number of thecase clearly designated

Same as conventional Filing EXCEPT no green

paper in e-filings and these additional steps:

Filing Code & Lead Document: N/A because

this is an ATTACHMENT to the Public

Version Lead Document

Security: Confidential

* Situations wherecourt theredacted/removedinformation is notnecessary for thedisposition of thecase (such as SocialSecurity or bankaccount #s) A.R.9(G)(5)(b)(ii)(a)

Notice of

Exclusion

A.R. 9(G)(5)(a)(i)(a)

File on white paper as a stand-alone document. Best practice: State on the Notice that you are

NOT filing anything on green paper because “theomission or redaction in [the Public Version] is notnecessary to the disposition of the case.”


steps:

Filing Code: Notice of Exclusion of

Confidential Info.

Lead Document: Notice itself

Security: Public

Public Version

A.R. 9(G)(5)(b)(i)

File on white paper as a stand-alone document

Contains only non-confidential information

Confidential information must be redacted (if it isonly part of a document) or omitted (if it is a wholedocument) from the Public Version, and theremust be an indication in the Public Version wherethe omission occurs.

EXCEPTION: If an entire filing is excluded from publicaccess, the 9(G)(5) Notice serves as the PublicVersion; no separate Public Version filing is required


steps:

Filing Code: Varies depending on

document

Lead Document: Whatever is being filed

Security: Public

Non-Public

Version

A.R.

9(G)(5)(b)(ii)(a)

Never filed because “the omission or redaction in

[the Public Version] is not necessary to the

disposition of the case.”

N/A because there is no Non-Public Version

1 An otherwise open case where a statute, Supreme Court rule, or common law declares only particular information confidential and to be excluded frompublic access.

D. Failure to see or inadvertent deletion of e-filed orders andpleadings

Beginning July 1, 2016, all appellate documents will be filed and served

electronically. This raises ethical (and malpractice) concerns with attorneys failing

to act on electronic notices from the courts or electronic pleadings from opposing

counsel because the notice was never received or was inadvertently deleted, as well

as issues regarding failure to upload correct documents—particularly when this task

is delegated to a staff member.

For example, a firm's spam filter blocked the court's electronic notice of a

settlement conference so the attorney never saw it was scheduled and failed to

appear. That attorney was fined and had to pay opposing counsel's fees. See Pace v.

United Serv. Auto. Ass'n, 2007 U.S. Dist. Lexis 49425 (D. Colo. July 9, 2007).

The United States Court of Appeals for the 8th Circuit has similarly been

unsympathetic when a law firm employee accidentally deleted an e-notice informing

the parties that a final order had been issued, causing the untimely filing of a notice

of appeal. See American Boat Co. v. Unknown Sunken Barge, 567 F.3d 348 (8th Cir.

2009)

In Kinsley v. Lakeview Reg'l Med. Ctr. LLC, 570 F.3d 586 (5th Cir. 2009) the

plaintiff was supposed to upload a Notice of Appeal, but inadvertently uploaded the

wrong document to the system. The deficiency notice directing him to refile the

correct document within the stated timeframe did not automatically extended the

time for electronically filing the Notice of Appeal.

Even when counsel never received notice of a filing because of a malware virus

on the computer, the court in Robinson v. Wix Filtration Corp., 599 F.3d 403 (4th Cir.

2010), denied relief because the court concluded the lawyer knew the deadline for

dispositive motions in the case was pending during the time his firm was experiencing

a computer meltdown but he never checked the system for docket activity and failed

to inform the court of his inability to receive e-notices. Id. at 407.

II. Appellate Amicus Curiae Ethics

Courts in other jurisdictions have found several amicus curiae practices

troubling, with some potentially implicating Professional Conduct Rule 3.3(b)

(Candor Toward the Tribunal); 4.1(b) (Truthfulness in Statements to Others); and

Rule 8.4(c) (Misconduct-dishonesty, fraud, deceit or misrepresentation). See, e.g.,

NANCY BAGE SORENSON, The Ethical Implications of Amicus Briefs, 30 ST. MARY'S L.J.

1219 (1999).

The first practice involves the actual party on appeal “ghostwriting” an amicus

brief that is then signed and filed by another attorney/party. While appellate rules

require coordination between the named party and the amicus party to avoid

duplication of arguments, a ghostwriter creates the substance of the Brief and then

gives it to another attorney to file.

Most ethics opinions addressing legal ghostwriting do so in the context of pro

se parties, but the analysis applies to amicus ghostwriting. In past years, there was

close to uniform agreement that ghostwriting without appropriate disclosure was

unethical. See, e.g., Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (“We hold

that the participation by an attorney in drafting an appellate brief is per se

substantial, and must be acknowledged by signature.”); JOHN C. ROTHERMICH,

Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward

Increased Access to Civil Justice, 67 Fordham L.Rev. 2687, 2697 (1999) (“It is

therefore likely that the failure to disclose ghostwriting assistance to courts and

opposing parties amounts to a failure to ‘disclose a material fact to a tribunal when

disclosure is necessary to avoid assisting a criminal or fraudulent act by the client,’

which is prohibited by Model Rule 3.3. Undisclosed ghostwriting would also likely

qualify as professional misconduct under Model Rules 8.4(c) and (d), prohibiting

conduct involving a misrepresentation, and conduct that is prejudicial to the

administration of justice, respectively.’”) (footnotes omitted).

More recently, however, the ethics opinions addressing legal ghostwriting have

become more “widely divergent” as to “its propriety.” DEBRA LYN BASSETT,

Characterizing Ghostwriting, 5 St. Mary's J. Legal Mal. & Ethics 286, 291-93 (2015).

The second practice involves the actual party paying some or all of the legal

bills for an amicus party to hire a different counsel to draft the amicus brief. In this

scenario, the party does not ghostwrite the brief; it instead hires someone else to draft

the brief and pays those bills.

There are not as many opinions or commentary addressing this practice, but

the federal courts and many state courts have affirmatively addressed this—and the

ghostwriting practice—by rule. The federal courts require disclosure as to whether

the party has written any part of the amicus brief and whether the party (or someone

else) has paid for any part of the brief:

An amicus brief … must include the following … astatement that indicates whether: (i) a party’s counselauthored the brief in whole or in part; (ii) a party or aparty’s counsel contributed money that was intended tofund preparing or submitting the brief; and (iii) a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing orsubmitting the brief and, if so, identifies each such person;

Fed. R. App. P. 29(E). Accord U.S. SUP. CT. R. 37(6) (“[A] brief filed under this Rule

shall indicate whether counsel for a party authored the brief in whole or in part and

whether such counsel or a party made a monetary contribution intended to fund the

preparation or submission of the brief, and shall identify every person other than the

amicus curiae, its members, or its counsel, who made such a monetary contribution.”).

Finally, some courts have objected to different members of a law firm which

represents the party authoring an amicus brief supporting that same party.

Recently, the Massachusetts Supreme Court called out this practice:

We acknowledge the amicus briefs submitted by …Attorney Mary Ellen Sowyrda. We note that AttorneySowyrda is a partner in the law firm that represents the[party] in this case. She is the head of the firm's specialeducation group.

In these circumstances, her filing a separate brief,purportedly as an amicus, to make further argumentssupporting the client's position, was ill-advised—particularly as it appears from the record that AttorneySowyrda participated in drafting the settlement agreementbetween the plaintiff and the town, and also representedthe town earlier in this matter before the supervisor ofpublic records. See Aspinall v. Philip Morris Cos., 442Mass. 381, 385 n. 8, 813 N.E.2d 476 (2004) (“Briefs of

amicus curiae are intended to represent the views ofnonparties; they are not intended as vehicles for parties ortheir counsel to make additional arguments beyond thosethat fit within the page constraints of their briefs”). Cf.S.M. Shapiro, K.S. Geller, T.S. Bishop, E.A. Hartnett, & D.Himmelfarb, Supreme Court Practice § 13.14 (10thed.2013) (discussing disclosure requirements of UnitedStates Supreme Court Rule 37.6; suggesting that someamicus briefs deserve “a lesser degree of credibility”).

Champa v. Weston Pub. Sch., 39 N.E.3d 435, 437 (Mass. 2015).

As of right now, because Indiana does not have any of these rules requiring

disclosure and, therefore, one could make the argument that the ethical concerns

raised above are implicated in Indiana appellate practice.

III. Positional Conflicts On Appeal.

An often-occurring but not often discussed ethical issue in appellate practice is

positional conflicts. “A positional conflict of interest occurs when a law firm adopts

a legal position for one client seeking a particular legal result that is directly contrary

to the position taken on behalf of another present or former client, seeking an opposite

legal result, in a completely unrelated matter.” JOHN S. DZIENKOWSKI, Positional

Conflicts of Interest, 71 Tex. L. Rev. 457, 460 (1993); RONALD D. ROTUNDA & JOHN S.

DZIENKOWSKI, Legal Ethics—The Lawyer's Deskbook on Professional Responsibility

§1.10-7 (West Group 2005).

Consider this example of two appeals proceeding through the appellate courts

at the same time. In one appeal, your client is a professional liability insurer whose

business interests are served by an appellate court finding a very restricted meaning

of “professional services.” In the other appeal, your client is a homeowner's insurer

who is facing coverage for a catastrophic loss unless an appellate court assigns an

expansive interpretation to the meaning of “professional services.” Positional

Conflicts: Is It Ethical to Simultaneously Represent Clients with Opposing Legal

Positions?, Mich. B.J., MAY 2002, at 15.

Or when one appeal argues that the Federal Sentencing Guidelines are

constitutional, while another appeal argues for another client that the Guidelines are

unconstitutional. See Fed. Defs. of San Diego, Inc. v. U.S. Sentencing Comm'n, 680

F. Supp. 26, 30 (D.D.C. 1988).

What about arguing in one appeal that jury recommendations in a capital case

are entitled to great weight, and arguing in another appeal that such

recommendations are not entitled to great weight? See Williams v. State, 805 A.2d

880, 882 (Del. 2002) (“[W]e find that O'Donnell has identified and demonstrated the

existence of a disqualifying positional conflict. It would be a violation of the Delaware

Rules of Professional Conduct for O'Donnell to advocate conflicting legal positions in

two capital murder appeals that are pending simultaneously in this Court.”).

While positional conflicts occur at all levels of litigation, it is “particularly the

case when it comes to appellate attorneys” because “the case ‘first out’ from our court

of appeals governs all later cases until a conflict resolution panel or the supreme court

speaks on the question. When the court of appeals case ‘first out’ for one client will

defeat another client's appeal, how can the lawyer ethically pursue both results?”

Positional Conflicts: Is It Ethical to Simultaneously Represent Clients with Opposing

Legal Positions?, Mich. B.J., MAY 2002, at 15 (noting that conflicts that might be

permissible at the trial level are not permitted at the appellate level).

The answer to this question lies in Professional Conduct Rule 1.7, which

provides that “a lawyer shall not represent a client if the representation involves a

concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the

representation of one client will be directly adverse to another client; or (2) there is a

significant risk that the representation of one or more clients will be materially

limited by the lawyer's responsibilities to another client, a former client or a third

person or by a personal interest of the lawyer.” IND.PROFESSIONAL COND. R. 1.7(a).

Comment 24 explains:

Ordinarily a lawyer may take inconsistent legal positionsin different tribunals at different times on behalf ofdifferent clients. The mere fact that advocating a legalposition on behalf of one client might create precedentadverse to the interests of a client represented by thelawyer in an unrelated matter does not create a conflict ofinterest.

A conflict of interest exists, however, if there is asignificant risk that a lawyer's action on behalf of one clientwill materially limit the lawyer's effectiveness inrepresenting another client in a different case; for example,when a decision favoring one client will create a precedentlikely to seriously weaken the position taken on behalf ofthe other client.

Factors relevant in determining whether the clients needto be advised of the risk include: where the cases arepending, whether the issue is substantive or procedural,the temporal relationship between the matters, thesignificance of the issue to the immediate and long terminterests of the clients involved, and the clients' reasonableexpectations in retaining the lawyer.

If there is significant risk of material limitation, thenabsent informed consent of the affected clients, the lawyermust refuse one of the representations or withdraw fromone or both matters.

Id. Comment 24

The Restatement also addresses this issue, and provides some examples:

Representing Clients with Conflicting Interests inCivil Litigation

Unless all affected clients consent to the representationunder the limitations and conditions provided in § 122, alawyer in civil litigation may not: (1) represent two or moreclients in a matter if there is a substantial risk that thelawyer's representation of one client would be materiallyand adversely affected by the lawyer's duties to anotherclient in the matter; or (2) represent one client to assert ordefend a claim against or brought by another clientcurrently represented by the lawyer, even if the mattersare not related.

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 128 (2000). The Comments

and Illustrations explain:

f. Concurrently taking adverse legal positions on behalf ofdifferent clients. A lawyer ordinarily may take inconsistentlegal positions in different courts at different times. Whileeach client is entitled to the lawyer's effective advocacy ofthat client's position, if the rule were otherwise law firmswould have to specialize in a single side of legal issues.

However, a conflict is presented when there is a substantialrisk that a lawyer's action in Case A will materially andadversely affect another of the lawyer's clients in Case B.

Factors relevant in determining the risk of such an effectinclude whether the issue is before a trial court or anappellate court; whether the issue is substantive orprocedural; the temporal relationship between the matters;the practical significance of the issue to the immediate and

long-run interests of the clients involved; and the clients'reasonable expectations in retaining the lawyer.

Illustrations:

5. Lawyer represents two clients in damage actionspending in different United States District Courts. In onecase, representing the plaintiff, Lawyer will attempt tointroduce certain evidence at trial and argue there for itsadmissibility. In the other case, representing a defendant,Lawyer will object to an anticipated attempt by theplaintiff to introduce similar evidence. Even if there issome possibility that one court's ruling might be publishedand cited as authority in the other proceeding, Lawyer mayproceed with both representations without obtaining theconsent of the clients involved.

6. The same facts as in Illustration 5, except that the caseshave proceeded to the point where certiorari has beengranted in each by the United States Supreme Court toconsider the common evidentiary question. Any positionthat Lawyer would assert on behalf of either client on thelegal issue common to each case would have a material andadverse impact on the interests of the other client. Thus, aconflict of interest is presented. Even the informed consentof both Client A and Client B would be insufficient topermit Lawyer to represent each before the SupremeCourt.

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 128 (2000), Comment f &

Illustrations 5&6.

An example of an impermissible positional conflict of interest is found in

Fiandaca v. Cunningham, 827 F.2d 825 (1st Cir. 1987), where counsel argued on

behalf of one client that a state facility should be used as a state mental hospital,

while also arguing that the same state facility should be used as a correctional facility

for female inmates in a different case on behalf of a different client.

As one commentator has noted, there is no easy answer to this question:

The most troublesome aspect of defining positionalconflicts is determining when arguments conflict. Notevery contrary legal position constitutes a positionalconflict: some are innocuous. “[L]awyers take contrarylegal positions all the time. They sometimes takeconflicting legal positions in the same case.” For example,a lawyer may argue in one case that legislative intent is aproper source of statutory interpretation even where thetext is clear, but in another case urge the court not to lookbeyond the plain text of the statute despite clear evidenceof a different statutory intent. Such a “conflict” would notstrike most lawyers as noteworthy; in fact a lawyer whostubbornly stuck to one view of statutory interpretation inevery representation, no matter what the result for theclient, would probably be viewed as inept. Whetherconflicting arguments rise to the level of a positionalconflict will depend at least in part on how important theissues are to each representation. Some argue thatpositional conflicts can only arise with substantive, asopposed to procedural, legal arguments; although the linebetween substance and procedure is tricky to draw, andsome “procedural” issues can be of great significance to theclients.

HELEN A. ANDERSON, Legal Doubletalk and the Concern with Positional Conflicts: A

"Foolish Consistency"?, 111 Penn St. L. Rev. 1, 9-10 (2006). This author concludes,

“The difficulty in distinguishing between innocuous and significant positional

conflicts is one argument against requiring lawyers to avoid them.” Id.

Given these concerns, and until the Indiana Supreme Court weighs in on the

issue, appellate practitioners in this State should take care to avoid these types of

appellate positional conflicts.

IV. Independent Research/ Judicial Notice at Appellate Stage

The Indiana Code of Judicial Conduct provides, “A judge shall not investigate

facts in a matter independently, and shall consider only the evidence presented and

any facts that may properly be judicially noticed.” IND. JUDICIAL CONDUCT RULE

2.9(C). “A judge shall make reasonable efforts, including providing appropriate

supervision, to ensure that this Rule is not violated by court staff, court officials, and

others subject to the judge's direction and control.” RULE 2.9(D). “The prohibition

against a judge investigating the facts in a matter extends to information available

in all mediums, including electronic.” Id. Comment 6.

This ethical proscription on independent research and the express invocation

of judicial notice require Indiana appellate practitioners to have a firm understanding

of these principles. As of January 1, 2010, Indiana’s Judicial Notice rule provides:

(a) Kinds of Facts That May Be Judicially Noticed. Thecourt may judicially notice:

(1) a fact that:

(A) is not subject to reasonable disputebecause it is generally known within the trialcourt's territorial jurisdiction, or

(B) can be accurately and readily determinedfrom sources whose accuracy cannotreasonably be questioned.

(2) the existence of:

(A) published regulations of governmentalagencies;

(B) ordinances of municipalities; or

(C) records of a court of this state.

(b) Kinds of Laws That May Be Judicially Noticed. A courtmay judicially notice a law, which includes:

(1) the decisional, constitutional, and publicstatutory law;

(2) rules of court;

(3) published regulations of governmental agencies;

(4) codified ordinances of municipalities;

(5) records of a court of this state; and

(6) laws of other governmental subdivisions of theUnited States or any state, territory or otherjurisdiction of the United States.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it andthe court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stageof the proceeding.

(e) Opportunity to Be Heard. On timely request, a party isentitled to be heard on the propriety of taking judicialnotice and the nature of the fact to be noticed. If the courttakes judicial notice before notifying a party, the party, onrequest, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court mustinstruct the jury to accept the noticed fact as conclusive. Ina criminal case, the court must instruct the jury that it mayor may not accept the noticed fact as conclusive.

Ind.Evidence R.201.

Indiana Evidence Rule 201(a)(1) allows a court to take judicial notice of (1)

facts that are matters of common knowledge (the sun rises in the east and sets in the

west; there are 365 days in a year, etc.); and (2) facts that are not matters of common

knowledge, but may be easily verified by unquestionably reliable sources.

For example, judicial notice of the fact that the words “rats” and “rodents” are

frequently used interchangeably was proper. Journal-Gazette Co., Inc. v. Bandido's,

Inc., 712 N.E.2d 446 (Ind.1999). And judicial notice that institution was actually a

school was proper. Haley v. State, 736 N.E.2d 1250 (Ind.Ct.App. 2000).

“Earlier Indiana cases suggest that courts are more willing to notice general

facts than specific facts, and are more willing to notice facts that are not

determinative of ultimate facts.” 12 Ind. Prac. § 201.103 (3d ed.) “For example, the

appellate court took judicial notice that eating underdone pork may result in illness

(a general fact), but would not take notice that two hours' roasting at 400 degrees

constitutes undercooking (a specific, ultimate fact).” Id. “Similarly, the supreme

court took judicial notice in early cases that natural gas was highly flammable and

explosive, but would not take notice that it was impossible to manufacture iron pipes

that would not leak or explode when gas was conducted through them, or that it was

impossible for gas to pass through the soil from the street main to a house in

quantities sufficient to cause an explosion.” Id.

“A judicially-noticed fact must be one not subject to reasonable dispute in that

it is . . . capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” IND. EVIDENCE RULE 201(a)(2). “Such

facts might include a stock's closing share price on a given date, the day of the week

on which a specific date fell, the time of the sun's rising or setting on a given date and

the distance traveled in one second by a vehicle at 60 miles per hour, and whether

the records of a public agency reflect that a license has been issued. On the other

hand, a newspaper report of a person's wealth is not a source whose accuracy cannot

reasonably be questioned.” 12 Ind. Prac. § 201.104 (3d ed.)

Therefore, judicial notice of meaning of the word “mulligan” was proper

because it was defined in the dictionary and three cases from other jurisdictions.

Wright v. Spinks, 722 N.E.2d 1278 (Ind.Ct.App.2000). Likewise, there was no error

in judicially noticing the Dorland's Illustrated Medical Dictionary definitions of the

terms “meningism” and “pyrogen.” Campbell v. Shelton, 727 N.E.2d 495 (Ind.Ct.App.

2000).

And while interest tables are proper subject for judicial notice. Griffin v. Acker,

659 N.E.2d 659 (Ind.Ct.App. 1995), judicial notice of a 20% marketability discount

was improper. Conner v. Conner, 713 N.E.2d 883 (Ind.Ct.App. 1999). The fact that

“a standard clause in Indiana in Indiana land contracts is that if a party to a

contract/buy/sell agreement is forced to sue the other party, the non-prevailing party

shall be responsible for and pay the prevailing party's attorney fees” is not proper fact

for judicial notice. Stoll v. Grimm, 681 N.E.2d 749 (Ind.Ct.App.1997). And evidence

concerning the transmission of AIDS was not proper subject for judicial notice. Dollar

Inn, Inc. v. Slone, 695 N.E.2d 185 (Ind.Ct.App. 1998).

Other examples of judicially-noticed facts by Indiana courts include:

a) geography

b) Michigan is a state that lies outside the state of Indiana

c) the Indiana State Prison is located in Michigan City

d) whereabouts of Indiana counties

e) distances between cities

f) that a given county is in Indiana, that a given city is in a givencounty, and that the Sullivan city limits is a considerable distancefrom the Sullivan County line.

g) there is no Hills County in New Hampshire.

h) population figures of a city or county as shown by a state orfederal census

i) standard mortality tables

j) assessed valuations, at least when the figures' accuracy was notchallenged but the court also held that judicial notice cannot betaken of the rental value of farmlands

k) Interest tables to be used to determine present value

l) Statistics compiled by state geologists

m) records of the secretary of state concerning election results

n) corporations' compliance with statutory requirements forassumed names

o) history of the state and the country

p) election results

q) past inflation rates

12 Ind. Prac. § 201.104 (3d ed.). Federal courts have similarly allowed judicial notice

of:

a) location of cities, counties, and boundaries;

b) the fact that courts in Louisiana were still recovering fromHurricane Katrina;

c) public records and government documents, including those foundon federal, state, and local government web pages;

d) historical facts such as the dates upon which wars began andterminated;

e) identity of the principal officers of the national government andthe incumbents of principal state offices;

f) duration of terms and sessions;

g) calendars;

h) scientific principles which justify the evidentiary use of radar,blood tests for intoxication and nonpaternity,handwriting/typewriter identification, and ballistics;

i) information publicly announced on a party's website, as long asthe website's authenticity is not in dispute and it is capable ofaccurate and ready determination;

j) history and politics of Liberia in judgment creditor's action toenforce Liberian money judgment.

KEMPER, What Constitutes "Adjudicative Facts" Within Meaning of Rule 201 of

Federal Rules of Evidence Concerning Judicial Notice of Adjudicative Facts, 150

A.L.R. Fed 543.

In contrast, federal courts have not allowed judicial notice of:

a) federal funding of government contracts in the United StatesVirgin Islands;

b) information found on websites dedicated to the anthrax vaccine;

c) documents relating to the internment of Americans of Japanesedescent during World War II;

d) facts recited in a judicial opinion of another state;

e) the “fact” that asbestosis and mesothelioma are diseases causedby the inhalation of asbestos dust and fibers.

Id.

Finally, the Indiana Supreme Court has directly addressed Indiana Judicial

Conduct Rule 2.9(C), noting:

The Commentary to Canon 3B of the Indiana Code ofJudicial Conduct advises: “A judge must not independentlyinvestigate facts in a case and must consider only theevidence presented.” Notwithstanding this directive, inorder to facilitate understanding of the facts andapplication of relevant legal principles, this opinionincludes information regarding the operation and use ofMySpace from identified sources outside the trial record ofthis case.

A.B. v. State, 885 N.E.2d 1223, 1224 (Ind. 2008). See also Horton v. State, N.E.3d

, 2016 WL 1612335, at *8 (Ind. Apr. 21, 2016) (“[I]t is by far the preferable practice

to enter into the record the particular documents of which the court is taking notice.”).

V. Appellate Civility

Finally, we would be remiss by not discussing issues of civility before our

Indiana appellate courts. Indiana appellate courts have very little tolerance for

incivility against the appellate courts or between the parties/counsel.

Perhaps the most well-known example of incivility against an Indiana

appellate court comes from In re Wilkins, 777 N.E.2d 714, 715-16 (Ind. 2002):

“‘Indeed, the Opinion is so factually and legally inaccuratethat one is left to wonder whether the Court of Appeals wasdetermined to find for Appellee Sports, Inc., and then saidwhatever was necessary to reach that conclusion(regardless of whether the facts or law supported itsdecision).”’

The Indiana Supreme Court in In re Wilkins … suspended veteranappellate advocate Michael A. Wilkins from practice for allowing thatlanguage--which the Indiana Supreme Court labeled a “scurrilous andintemperate attack on the integrity” of the Indiana Court of Appeals--toappear in a footnote of a brief.

The court reasoned that Wilkins violated Indiana Rule of ProfessionalConduct 8.2(a), which provides in pertinent part that a lawyer “‘shallnot make a statement that the lawyer knows to be false or with recklessdisregard as to the truth or falsity concerning the qualifications orintegrity of a judge.”

Douglas R. Richmond, Appellate Ethics: Truth, Criticism, and Consequences, 23 REV.

LITIG. 301, 301-02 (2004) (noting the court later reduced Wilkins's suspension to a

public reprimand).

The Supreme Court is similarly troubled by counsel/party snipes directed to

opposing counsel/party. The court in Wisner v. Laney, 984 N.E.2d 1201 (Ind. 2012),

took the opportunity to express “dissatisfaction and frustration with the behavior of

counsel,” explaining, “Professionalism and civility are not optional behaviors to be

displayed only when one is having a good day. Professionalism and civility are the

mainstays of our profession and the foundations upon which lawyers practice law.

The public expects it. Fellow lawyers expect it. Our profession demands it.” Id. at

1203.

This was made extraordinarily clear in Amax Coal Co. v. Adams, 597 N.E.2d

350 (Ind.Ct.App. 1992):

Throughout the parties' briefs, they have launchedrhetorical broadsides at each other which have nothing todo with the issues in this appeal. Counsels' commentsconcern their opposite numbers' intellectual skills,motivations, and supposed violations of the rules ofcommon courtesy….

At the outset, we point to the obvious: the judiciary, in factand of necessity, has absolutely no interest in internecinebattles over social etiquette or the unprofessionalpersonality clashes which frequently occur among opposingcounsel these days. Irrelevant commentary thereon duringthe course of judicial proceedings does nothing but wastevaluable judicial time.

On appeal, it generates a voluminous number of uselessbriefing pages which have nothing to do with the issuespresented, as in this appeal.

Further, appellate counsel should realize, such petulantgrousing has a deleterious effect on the appropriatecommentary in such a brief. Material of this nature is akinto static in a radio broadcast. It tends to blot out legitimateargument.

On a darker note, if such commentary in appellate briefs isactually directed to opposing counsel for the purpose ofsticking hyperbolic barbs into his or her opposing numbers'psyche, the offending practitioner is clearly violating theintent and purpose of the appellate rules.

In sum, we condemn the practice, and firmly request theelimination of such surplusage from future appellatebriefs.

Id. at 352.Over the years, many decisions have repeated and affirmed this disdain with

appellate incivility:

“A brief is far more helpful to this court, and it advocates far moreeffectively, when its focus is on the case before the court and not oncounsel's opponent. … Mother could have presented her argumentswithout these ‘hyperbolic barbs,’ and we firmly request the eliminationof such surplusage from future appellate briefs.” In re H.M.C., 876N.E.2d 805, 806 (Ind. Ct. App. 2007).

“Barker claims that in its brief, the State uses disrespectful languageaimed at insulting opposing counsel. We remind counsel that thepurpose of appellate briefs is to present this Court with concisearguments supported by statutory law, case law, and the record. Ind.Appellate Rule 46(A)(8). Invectives are not argument and have no placein legal discussion.” Barker v. State, 994 N.E.2d 306, 311 (Ind.Ct.App.2013)

Finally, we note that Garrard's argument section is also rife withunsupported accusations and derogatory comments against opposingcounsel, the trial judge, and the trial bench as a whole…. We warnGarrard that we do not look favorably upon disparaging anddisrespectful language in briefs with regard to this Court or the trialcourts of this state. In re Garrard, 985 N.E.2d 1097, 1104-05(Ind.Ct.App. 2013).

Even calling opposing counsel’s argument “absurd” has led to a rebuke from

the court: “We admonish the State for its use of intemperate language in its brief

when it referred to Cochran's argument as ‘absurd.’ Such language adds nothing to

the debate and undermines civility in the practice of law.” Cochran v. State, 859

N.E.2d 727, 729 (Ind.Ct.App. 2007).

The memorandum decision in In re Marriage of Farrell, 2008 WL 5401412

(Ind.Ct.App. 2008), provides an excellent example of the different ways of

characterizing an argument to avoid incivility. Counsel for Appellee attempted to

defend the following statements in the Brief of Appellee:

calling Appellant’s Statement of the Issues a “minefield of problems”;

characterizing a place in the Appellant’s Brief as “moves on to apointless tangent,”

referring to the Appellant’s self-employment history as “dismal” andcalls him “selfish”

Id. at *4. “In defense of that tone, counsel asserts he ‘cannot discern how a description

of an argument can be disrespectful,’ and attempts to demonstrate how the evidence

and dictionary definitions of ‘dismal’ and ‘selfish’ support counsel's characterizations

of John and his employment history.” Id. The Court of Appeals explained, “In an

attempt to help counsel understand how to discern a disrespectful tone, we provide

an example.” Id.

“We could state we find no merit in his assertions in defense of the brief's tone,

which would indicate our disagreement with his arguments.” Id. “Alternatively, we

could state we find his assertions in defense of the brief's tone are immature, petty,

classless, and unbecoming of a lawyer admitted to the bar of Indiana, which would

insult not just the assertions, but also the author of the assertions.” Id. “Such

insulting characterizations have no place in appellate advocacy. And regardless

whether an opposing party's behavior can be alleged to fit the dictionary definition of

an insulting word, there is no place for such insults in appellate brief writing.” Id.

VI. Presenter Biographies

www.frostbrowntodd.com

Julia Blackwell Gelinas

[email protected]

201 North Illinois StreetSuite 1900Indianapolis, Indiana 46204-4236

T: 317.237.3845 | F: 317.237.3900

AssistantMichalin [email protected] 317.237.3804

PRACTICE AREAS

Appellate

Construction Law

Litigation

INDUSTRIES

Construction

FIRM COMMITTEES

Appellate Practice Group, Chair

Strategic Planning Committee,Member

Compensation Committee, formerMember

Diversity and Inclusion Committee,former Member

EDUCATION

Indiana University School of Law,J.D., 1978, cum laude

Saint Mary's College, Notre Dame,IN, B.A., 1975, cum laude

Julia chairs the Firm's appellate practice group and is the former chair of theLocke Reynolds appellate practice group. She continues to practice inappellate, construction, fidelity and surety, and other commercial matters.She also represents lawyers before the Indiana Supreme Court DisciplinaryCommission. Julia served as chair of the management committee of theformer Locke Reynolds law firm from 2000 to 2005, one of very few womento hold that title in Indianapolis. A well-respected national leader in theprofession, she is a frequently requested speaker.

Highlights & Recognitions

American Academy of Appellate Lawyers, Fellow

Recipient of the Antoinette Dakin Leach Award, 2010

Selected for inclusion in Indiana Super Lawyers® and the Top 25 FemaleSuper Lawyers, 2004-2016

The Best Lawyers in America®, 2007-2016

The Best Lawyers in America®, Indianapolis Construction Lawyer of the Year,2012

"Women to Watch," Indianapolis Business Journal and Indiana Lawyer, 2000

Chambers USA® America's Leading Business Lawyers

The American Bar Foundation, Fellow

Indianapolis Bar Foundation, Distinguished Fellow

AV® Preeminent™ Peer Review Rated, Bar Register of Women Lawyers,Martindale Hubbell Inaugural Edition®, 2011


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Memberships & Affiliations

American Bar Association, Torts and Insurance Practice Section; Fidelity and Surety Committee, Vice-Chair,1990-1995 and 1997-2002; Professional Issues Committee

American Bar Association, Forum on the Construction Industry Committee

Council of Appellate Lawyers

Indianapolis American Inns of Court, Founding Member, Master of the Bench

Indianapolis and Indiana State Bar Associations

Legal Advisory Committee to the Indiana Legal Foundation

Seventh Circuit Bar Association, Committee on Membership & Programs, Indiana Chair

Indiana State Supreme Court Disciplinary Commission, Former Chair, 1999-2001, Executive CommitteeMember, 1991-2001

Surety Claims Institute

The Lawyers Club

Fidelity Law Association

IU School of Law - Indianapolis, Board of Directors, President 1992-1994

News

May 14, 2016These lawyers are community assetsIndianapolis Business Journal

Press Releases

February 15, 201623 Frost Brown Todd Attorneys Recognized by Indiana Super Lawyers®

August 17, 2015175 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2016

February 13, 201526 Frost Brown Todd Attorneys Recognized in Indiana Super Lawyers® and Four Recognized in Indiana RisingStars® for 2015

August 20, 2014175 Frost Brown Todd Attorneys Listed in The Best Lawyers In America® 2015

March 5, 201427 Frost Brown Todd Attorneys Named to Indiana Super Lawyers®; 7 Attorneys Named to Rising Stars®

August 15, 2013



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172 Frost Brown Todd Attorneys Recognized in 2014 Best Lawyers®

February 27, 201323 Frost Brown Todd Attorneys Named to Indiana Super Lawyers®; 11 Attorneys Named to Rising Stars®

August 27, 2012167 Frost Brown Todd Attorneys Recognized in 2013 Best Lawyers®

February 10, 201223 Frost Brown Todd Attorneys Recognized by Indiana Super Lawyers® and 12 Recognized by Indiana RisingStars® for 2012

October 5, 201113 Frost Brown Todd Attorneys Recognized as 2012 “Lawyers of the Year”

September 6, 2011150 Frost Brown Todd Attorneys Recognized in Best Lawyers® 2012 Edition

May 26, 2011Julia Blackwell Gelinas Elected to the American Academy of Appellate Lawyers


September 28, 2010Julia Blackwell Gelinas Receives Prestigious Dakin Leach Award

August 20, 2010145 Frost Brown Todd Attorneys Recognized in Best Lawyers® 2011 Edition


January 12, 2010Frost Brown Todd Attorneys Receive Recognition in 2010 Super Lawyers® Corporate Counsel Edition

Civic & Charitable Organizations

Indiana University School of Law, Indianapolis Alumni Association, Past President, 1992-1994

St. Elizabeth's Home, Board Member, 1990-1995

Cathedral Arts Midsummer Festival

Non-FBT Publications And Events

"Ethics," The Alumni Association of the Indiana University Robert H. McKinney School of Law, Indianapolis,Indiana, September 16, 2015



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Panel Discussion with Judge Heather Welch, Marion Superior Court, Women in Law, Defense Trial Counsel ofIndiana, Indianapolis, Indiana, April 17, 2014

"Ethical and Effective Ways to Communicate With Former, Current and Future Clients," Forum on theConstruction Industry, American Bar Association, 2013 Annual Meeting, Dana Point, California, April 27, 2013

"Safely Steering Your Practice Through the Orange Cones - Ethics Tips," ICLEF, Merrillville, Indiana, October24, 2012

"Advanced Appellate Practice," ICLEF, French Lick, Indiana, July 20, 2012

"Defenses Available to Surety," American Bar Association, 2012 Mid-Winter Meeting, New York, New York,January 27, 2012

"Ethical Issues Pitfalls and Update for Family Lawyers," ICLEF, Fort Wayne, Indiana, December 9, 2011

"Civil Issues Percolating in Courts of Appeal" Appellate Judges Education Institute, American Bar Association,2010 Summit, Dallas, Texas, November 18, 2010

"Legal Ethics Issues in Federal Construction Contracting" Forum on the Construction Industry, American BarAssociation, 2010 Midwinter Meeting, San Francisco, California, January 28, 2010

"Defenses Available to the Surety" The Law of Performance Bonds (2d Ed.), American Bar Association, 2009

Ethics and Family Law, ICLEF, November 21, 2008

Ethics Presentation, IBA Business Section Ethics and Transactions, November 14, 2007

Appellate Presentation, IBA, March 4, 2007

"Indiana Ethics: The Top 5" ICLEF, 2007

"Commercial Surety Indemnity Agreement Issues" Commercial Surety, Chapter 10, Co-Author, American BarAssociation, 2007

Payment Bond Manual, Indiana Chapter, 2006

"Ethics in Transactions" Indianapolis Bar Association, 2006

"Criminal and Civil Appellate Practice" Lorman Education Services, 2006



5

Advanced Ethics, ICLEF, May 2006

Appellate Skills Institute, November 2006

"Outreach Back to Basics: Contract Surety Bond Claims" Tort Trial and Insurance Practice, American BarAssociation, 2004

"Human Resources" Women in Law Conference, 2002

"How do you Define a Final Judgment in Federal Appeals? When is Enough Enough?" Advanced Federal Practice, 2002

"Defenses Available to the Surety" The Law of Suretyship (2d Ed.), American Bar Association, 2000

"Annotated Banker's Blanket Bond" American Bar Association

"Financial Institutions Bond - Annotated" American Bar Association



Maggie L. Smith

[email protected]

201 North Illinois StreetSuite 1900Indianapolis, Indiana 46204-4236

T: 317.237.3223 | F: 317.237.3900

AssistantChristy [email protected] 317.237.3939

PRACTICE AREAS

Appellate

Litigation

BAR MEMBERSHIPS

Indiana

CLERKSHIPS

Judicial Law Clerk, IndianaSupreme Court

EDUCATION

Indiana University Maurer Schoolof Law, visiting student,1995-1996

University of Arizona, James E.Rogers College of Law, J.D., 1994, magna cum laude

University of Arizona, B.A., 1991,cum laude

Maggie has been recognized as one of the The Best Lawyers in America® in thefield of appellate practice and has been named one the top 25 WomenAttorneys in Indiana by Super Lawyers®.

She has been involved in hundreds of appeals, and has representedbusinesses, individuals, and groups in all types of appellate proceeding atevery level of the state and federal appellate courts, and also has significantexperience representing amicus curiae parties before Indiana's appellatecourts. Maggie has been actively involved in drafting the Indiana AppellateRules, is a leader in the state and national appellate practice communities,and is a frequent presenter on appellate topics.

Prior to entering private practice, she served as a judicial law clerk with theIndiana Supreme Court and was an Adjunct Professor of Law at IndianaUniversity, teaching legal writing and reasoning and appellate advocacy.

The Indiana Supreme Court appointed Maggie to its Committee on Rules ofPractice and Procedure in 2009, and in this capacity she is engaged in thecontinuous study of all the Indiana Rules of Procedure (Trial Rules,Evidence Rules, Jury Rules, Appellate Rules, Professional Conduct Rules,etc.). Maggie has been actively involved in the e-fling projects,Administrative Rule 9(G) overhaul, and the appellate rules.

Experience

Successfully defended the constitutionality of the original Indiana wineshipping statute on appeal in the federal courts

Successfully represented Dolby Laboratories on appeal in patent challengeto Dolby Surround Sound systems


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Successfully prosecuted appeal resulting in long-dormant cause of action for Title by Acquiescence beingrecognized

Highlights & Recognitions

AV® Rated, Martindale Hubbell® Highest level of "ethical standards and professional ability"

The Best Lawyers in America®, 2009-2016

Selected for inclusion in the Indiana Super Lawyers®, 2012-2016

Selected as one of The Top 25 Women Lawyers by Indiana Super Lawyers®, 2014

2013 Indiana State Bar Association David Hamacher Public Service Award

Indiana Outstanding Young Attorney of the Year, 2000

Presidential Citation for Excellence, Indiana State Bar Association, 1999

Indiana Bar Foundations, Fellow

Memberships & Affiliations

Indiana Supreme Court Committee on Rules of Practice and Procedure, 2009 to present.

Indiana State Bar Association, Appellate Practice Section, Section Chair, 2010-2011; Vice Chair, 2008-2009; Appellate Rules Update Committee, Chairman, 2008, Bench/Bar and Special Projects Committee, Chair,Indiana Docs Appellate Drafting Committee, Chair, Evening with the Appellate Judges, Chair, Appellate SurveySeminar, Planning Committee, Appellate Skills Seminar, Planning Committee, Masters Level Appellate PracticeCLE, Planning Committe, Council Member for District 11; Committee on Judicial Improvements; FederalJudiciary Committee, former Chair; Committee on State Legislation; Long Range Planning Commission

American Bar Association, Council of Appellate Lawyers; Speakers Board, Indiana and Seventh Circuitrepresentative

Indianapolis Bar Association, Pro Bono Recognition Committee, Past Chair

Indianapolis Sagamore Inn of Court, Past Barrister

News

December 17, 2014State and federal courts clamp down on confidential filingsThe Indiana Lawyer

Press Releases

February 15, 201623 Frost Brown Todd Attorneys Recognized by Indiana Super Lawyers®

August 17, 2015

Maggie L. Smith


3

175 Frost Brown Todd Attorneys Listed in The Best Lawyers in America© 2016

February 13, 201526 Frost Brown Todd Attorneys Recognized in Indiana Super Lawyers® and Four Recognized in Indiana RisingStars® for 2015

August 20, 2014175 Frost Brown Todd Attorneys Listed in The Best Lawyers In America® 2015

March 5, 201427 Frost Brown Todd Attorneys Named to Indiana Super Lawyers®; 7 Attorneys Named to Rising Stars®

October 23, 2013Frost Brown Todd Attorney Wins Hamacher Award


February 27, 201323 Frost Brown Todd Attorneys Named to Indiana Super Lawyers®; 11 Attorneys Named to Rising Stars®

February 6, 2013New Members Named to Frost Brown Todd



September 6, 2011150 Frost Brown Todd Attorneys Recognized in Best Lawyers® 2012 Edition

August 20, 2010145 Frost Brown Todd Attorneys Recognized in Best Lawyers® 2011 Edition

Civic & Charitable Organizations

Beacon of Hope Center for Women, Volunteer Grant Writer

Indiana Department of Child Services, volunteer

Purchased, Inc., volunteer

Kids Games, group leader

Navajo Christian Foundation, team leader

Shepherd Community Center, coordinator for service outreach program

Maggie L. Smith


4

Traders Point Christian Academy, Parent Teacher Fellowship Executive Committee; Chair, Fundraiser Auctions2009, 2010, 2011; Coordinator of Family Involvement Campout; Attorney Coordinator for Lincoln Days; RoomParent

Common Ground Christian Church, Sunday School Lead Teacher; Small Group Leader; Hospitality Committee

Indiana Appellate Pro Bono Project, Volunteer, 2008-present

Planning Committee for Statewide Gala honoring Chief Justice Shepard

"Why Lincoln Was A Lawyer" Program, TPCA School Coordinator, 2010, 2012

Indiana Chapter, University of Arizona Alumni Association, Board of Directors, President

Preserve at Eagle Creek Homeowners Association

Community Organization Legal Assistance Program, Community Coordinator

Care Center Women and Children's Shelter

Neighborhood Fellowship Inner City Ministry, Board of Directors

Non-FBT Publications And Events

Chair and Moderator: An Insider's Guide to Appellate Practice, May 8, 2014

Presenter: Appellate Practice: Challenging and Defending Decisions of the Worker's Compensation Board, MastersRoundtable Worker's Compensation, Indiana Continuing Legal Education Foundation, March 7, 2014

Presenter: Advanced Appellate Practice, ICLEF Masters Series Conference, July 20-21, 2012

Presenter: Survey of Recent Amendments to the Appellate Rules, ISBA Family and Juvenile Law Symposium, April11, 2012

Presenter: What You Need To Know About The Recent Amendments to the Indiana Appellate Rules, IndianaContinuing Legal Education, March 22, 2012

Moderator and Author: Making Your Case: The Art of Persuading Judges--Indiana Style, May 13, 2011

Presenter: Initiating The Appeal, Indiana Continuing Legal Education, May 13, 2011

Presenter: Mechanics and Strategies For Brief Writing In Indiana Appellate Courts, City of Indianapolis Office ofCorporation Counsel, April 16, 2010

Presenter: Developing Appellate Skills, Indiana Continuing Legal Education, November 10, 2009

Presenter: Indiana Appellate Practice Legal Seminar, City of Indianapolis Office of Corporation Counsel, July 24,2009

Maggie L. Smith


5

Presenter: Judicial Notice of Facts, Indiana Continuing Legal Education, October 27, 2008

Presenter: "Welcome to the 21st Century: An Appellate Perspective," ICLEF 2008

Presenter: "Advanced Appellate Practice," Masters Level Series, ICLEF 2008

Presenter: "Appellate Statistics," DTCI Annual Meeting, 2007

Presenter: "Survey of Indiana Appellate Practice," ICLEF 2007

Presenter: "Notice of Appeal Through Certification of the Decision," Defense Trial Counsel of Indiana, 2007

Presenter: "Arguing The Call: Key Practice Tips for Indiana's Appellate Courts," Defense Trial Counsel ofIndiana, 2007

Presenter: "Appellate Motions Practice," Indiana Continuing Legal Education, 2006

Presenter: "Reading the Appellate Courts and Planning Your Appeal," Defense Trial Counsel of Indiana,2006

Presenter: "State Court Appellate Practice, Top Ten Practice Tips for Young Lawyers and GeneralPractitioners," Indiana Continuing Legal Education, 2004, 2003, 1999

Presenter: "The Art of Oral Argument," Indiana Continuing Education, 2003

Author: "Appellate Civil Case Law Update," Res Gestae,ongoing contributing editor, 2003-present

Author: "Recent Cases on Appellate Practice," The Appellate Advocate, ongoing contributing editor,2002-present

Author: "Indiana Constitutional Law: What You Don't Know Could Hurt You," Indiana Lawyer, 1999

Maggie L. Smith