res gestae - october 2014

October 2014 Vol. 58, No. 3

JEFF HAWKINSNEW ISBA PRESIDENT & FAMILY

EDITORSusan J. [email protected]

GRAPHIC DESIGNER & PHOTOGRAPHERVincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. [email protected]

5 PRESIDENT’S PERSPECTIVEJeff R. Hawkins, Sullivan, 2014-2015

10 ETHICS CURBSTONE: PRO BONO REPORTINGDonald R. Lundberg, Indianapolis

25 WORDWISE: EMAIL COMMUNICATIONSProf. Deborah B. McGregor, Indianapolis

30 RECENT DECISIONS 6/14Kathy L. Osborn and Sarah C. Jenkins, Indianapolis

39 CRIMINAL JUSTICE NOTES 6/14Jack Kenney, Indianapolis

42 FIT TO PRACTICE: INACTIVITY PHYSIOLOGYBy Carol Kennedy-Armbruster, Ph.D., Bloomington

46 FAIR COMMENT CLASSICRabb Emison, Vincennes

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 GESTÆOctober 2014 � Vol. 58, No. 3

D E PA R T M E N T S10 PRO BONO

18 DRONES

RES GESTÆ • OCTOBER 2014 3

F E AT U R E S

18 THE LEGAL IMPLICATIONS OF DRONESBy Todd J. Janzen, Indianapolis, and Sarah L. Doyle, State College, Pa.

7 JUDGES RECOGNIZED 43 SUPREME COURT ANNUAL REPORT

Featured on the cover is the Hawkins family of Sullivan, Ind. (from left to right): daughter Erin, new ISBA President Jeff and his wife & law partner, Jennifer

They are joined by their beloved & faithful companion, Toby.Photo by Jen Thompson of Jen’s Lens Photography, Sullivan, Ind.

25 EMAIL

RG 10.14_RG 09.05 10/29/14 9:45 AM

If you are reading this column, you are probably a member or associatemember of the Indiana State Bar

Association. Your ISBA is a 118-year-old,voluntary association of more than 12,000lawyers, judges and affiliated non-lawyerprofessionals. About 1,200 of your fellowmembers provide volunteer serviceamong ISBA’s 42 committees, 27 sections,our Board of Governors and House ofDelegates. Through this complex web ofvolunteer service, you help advocate forthe civil rights of children, teach newlawyers how to practice law competently,comment on proposed rules of practice,promote and defend the independence of the judiciary, advocate for improvedlegislation, promote lawyers’ physical and mental fitness, and many, many othernoble pursuits. Your ISBA participationmakes you an essential part of an amaz-ingly effective professional service organi-zation.

You and I live and work together as American and Hoosier legal profes-sionals of diverse cultures and perspec-tives. As judges, lawyers and non-lawyerprofessionals, our world revolves aroundthe rule of law and the administration of justice. One of our most prized profes-sional attributes is that we can serve ourprofessional interests, even when we dis-agree, without forfeiting or diminishingour rights and privileges as citizens. No matter what issues divide us as free-thinking people, we remain united asAmericans, Hoosiers and members ofIndiana’s largest association of legal professionals – the Indiana State BarAssociation.

We are people of many ages, cultures,races, ethnic origins, abilities, sexual orientations, gender identities, practiceenvironments and perspectives. This richdiversity empowers us to grow, evolve and

adapt to changing economic and politicalrealities that confront us now and withcertainty will emerge in the future.

Last year, the ISBA House ofDelegates added two at-large Board ofGovernors seats so that the Board wouldmore fully reflect the diverse ISBA mem-bership composition. We recently estab-lished a new Sexual Orientation & GenderIdentity (SOGI) Committee to buildbridges for members of all sexual orienta-tions and gender identities. On Nov. 20,the ISBA will present a CLE programfocusing on disabilities and how we, aslawyers and ISBA members, can serve,embrace and engage clients and fellowlegal professionals that live with physicaland mental disabilities. We are also reach-ing out into the far corners of the state toengage lawyers and other legal profession-als so that all of our members may experi-ence fulfilling engagement as members of a thriving professional association.

Again, if you’re reading this article,you are probably one of the members I am describing. The Indiana State Barbelongs to you, and it cherishes you asone of its members. I encourage you toown your ISBA membership and enjoy all that membership offers you. Like manythings, your Association’s value relatesdirectly to how you live out your mem-bership. I invite you, as a member whoseprofessional fellowship I cherish, to live large as an ISBA memberand to own it as your IndianaState BarAssociation.

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

Indianapolis, IN 46204800/266-2581 • 317/266-2588 fax

http://www.inbar.org

OFFICERSPresident Jeff R. Hawkins, Sullivan

President-Elect Carol M. Adinamis, Westfield

Vice President Mitchell R. Heppenheimer, South Bend

Secretary Michael S. Dalrymple, Indianapolis

Treasurer O. Adedoyin Gomih, Merrillville

Counsel to the Ted A. Waggoner, RochesterPresident

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Robyn M. Rucker, Valparaiso

3rd District Robert L. Jones Jr., Notre Dame

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District Patrick J. Olmstead, Greenwood

7th District Ann Z. Knotek, Brownsburg

8th District Hon. Leslie C. Shively, Evansville

9th District Crystal G. Rowe, New Albany

10th District Wilford A. Hahn, Huntington

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

11th District Andrew Z. Soshnick, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Sonia C. Das, Indianapolis

Past President James Dimos, Indianapolis

House of Delegates Andi M. Metzel, Indianapolis,Chair

House of Delegates Hon. Thomas J. Felts, Fort Wayne,Chair-Elect

Young Lawyers Matthew J. Light, Indianapolis,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]

Graphic Designer & PhotographerVincent Morretino • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Special ProjectsSection & Committee Liaison

Maryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

Director of CLEChristina L. Fisher • [email protected]

Assistant to Director of CLEKassandra Adams • [email protected]

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

Administrative AssistantKimberly D. Latimore • [email protected]

Section & Committee LiaisonMelanie Zoeller • [email protected]

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

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

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected] RES GESTÆ • OCTOBER 2014 5

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Own it

RG 10.14_RG 09.05 10/28/14 3:33 PM

Several judicial officers (judgesand magistrates) were recog-nized by Indiana Chief

Justice Loretta H. Rush for theircommitment to higher educationand their longtime service. ChiefJustice Rush, as chair of the JudicialConference, recognized 12 judicialofficers who received an IndianaJudicial College certificate and five judicial officers for 24 years of service on the bench. Both honors were presented at the fall judicial conference.

Indiana Judicial College

A judicial officer must com-plete 120 hours of education presented by the Indiana JudicialCenter to receive this certificate.The programs offered are designedfor judicial officers to enhance theirlegal knowledge and improve theirpersonal and professional develop-ment. To view and download pho-tographs of the Judicial Collegegraduates, please visit the Flickrpage at http://tinyurl.com/2014-Judicial-College-grads.

Judge James R. Ahler (Jasper)

Magistrate Sally E. Berish (Boone)

Judge Jonathan N. Cleary(Dearborn)

Judge W. Gregory Coy(Switzerland)

Magistrate Gael S. Deppert(Marion)

Magistrate Katherine J. Garza(Lake)

Judge David A. Happe (Madison)

Judge Clay M. Kellerman(Franklin)

Judge Mary Margaret Lloyd(Vanderburgh)

Judge Dan E. Marshall (Hancock)

Judge Gary L. Smith (Jennings)

Magistrate Karen A. Werner(Perry)

24 years of serviceThis award is presented to

judicial officers with 24 years of service on the bench. Judges aretypically elected to a six-year term;therefore, a judge receiving this certificate has likely been electedfour times. To view and downloadphotographs of the 24 Years ofService certificate recipients, please visit http://tinyurl.com/24-Years-of-Service.

Judge Nancy Eshcoff Boyer (Allen)

Judge David C. Chapleau (St. Joseph)

Magistrate Glenn D. Commons(Lake)

Judge P. J. Pierson (Sullivan)

Judge Patricia A. Riley (Court of Appeals)

The Indiana Judicial Centerserves as the state’s judicial researchand continuing judicial educationagency. It develops and sponsorseducation programming for judges,probation officers and other courtpersonnel. The Center works toenhance the performance of thejudicial system as a whole by continuously improving the professional competence of judi-cial officers. For more information on the Judicial Center, visitcourts.in.gov/center. �

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SJudges recognized for educational pursuits, longtime service


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Indiana Attorney General Gregory F. Zoeller applaudedthe Indiana Supreme Court’s

Oct. 7 ruling that local death certificates are a public recordthat the public should be able toobtain. The Attorney General’sOffice had weighed in on the casein support of keeping the docu-ments public under the Access toPublic Records Act, and had filedan amicus brief and participated in the oral argument before theCourt on May 8.

“Consistent with the princi-ple of transparency, we asked theSupreme Court to return to thelongstanding practice of makingthe cause of death in death certifi-cates promptly available to thepublic who has the right to know,and the Court agreed. We all mustbe sensitive to Hoosiers’ privacyconcerns particularly with fami-lies who have suffered a recentloss; but the intent of state law is that the certificate of death –listing the deceased’s name, age and cause of death – must be accessible at the county level,”Zoeller said.

The Indiana Supreme Courton May 8 heard oral argument in the case, Evansville Courier & Press and Rita Ward v.Vanderburgh County HealthDepartment, and the Court issued its ruling in favor of theplaintiff-appellants. The SupremeCourt’s ruling overturned theVanderburgh County trial court’sruling and ordered that the certificate of death filed by doc-tors, coroners and funeral direc-tors be treated as a public record.The Supreme Court’s ruling alsoaffirmed the legal position takenby an Attorney General’s Officeofficial opinion under former AG Jeff Modisett in 1998.

The State was not a party to the case, and the AttorneyGeneral’s Office did not representeither side. However, the AG’sOffice had filed an amicus brief,also known as a friend-of-the-court brief, in support of theplaintiff-appellants and of keep-ing the cause of death in deathcertificates accessible by the

general public. Citing the statutethe Legislature passed, the amicusbrief argued in favor of the gener-al policy of open access to govern-ment information and broadlyconstruing public access laws. �

Supreme Court rules in favor of public access on cause of death


RG 10.14_RG 09.05 10/28/14 3:33 PM

Almost all lawyers are aware of the professionalresponsibility to provide

pro bono publico services. I haveassiduously avoided using the word “duty,” since the obligation is morally compelling, but notmandatory. Rule of ProfessionalResponsibility 6.1 addresses it:

A lawyer should render public inter-est legal service. A lawyer may dis-charge this responsibility by provid-ing professional services at no fee ora reduced fee to persons of limitedmeans or to public service or charita-ble groups or organizations, by ser-vice in activities for improving thelaw, the legal system or the legal pro-fession, and by financial support fororganizations that provide legal ser-vices to persons of limited means.

“Should” is an unusual word inthe Rules of Professional Conduct.There is no other black-letter rulethat uses that word, although thePreamble and comments use itoften. According to the Preamble,when the Rules use the words“shall” or “shall not,” an obligationenforceable through lawyer disci-pline is created. When the Rules usethe word “may,” lawyers have dis-cretion in how to exercise their pro-fessional judgment. See Preamble at [14]. “Should,” although unde-fined, would appear to be some-where in between – conveying asense of moral force and communi-ty expectation without being

enforceable throughprofessional discipline.

Effective Jan. 1,2015, new Rule ofProfessional Conduct6.7, promulgated onSept. 2, will go intoeffect, creating certainpro bono reportingduties. I use the word“duties” advisedlybecause unlike thegeneral rule in Rule6.1 about pro bonopublico service, Rule

6.7 uses the word “shall.” Thechoices to use mandatory languageand to include this rule in the Rulesof Professional Conduct signal theCourt’s intent that the duties setforth in Rule 6.7 will be enforceablethrough lawyer discipline. In fact,the rule itself is quite explicit onthis point: The rule “creates amandatory reporting obligation,the violation of which may subject a lawyer to discipline.” Rule 6.7(c).Consequently, it is important for all lawyers to know what this new rule says.

Now that we do our annualattorney registrations online, I imagine the registration form willsolicit this information in requireddata fields. Thus, it will be essential-ly impossible to not comply withthe reporting rule. Of course, non-compliance could arise in differentways. We are asked to reportapproximate hours and dollarsdonated. It would be a violation to materially under or over-reporthours. Recall that one Indianalawyer was disciplined for, amongother things, receiving full CLEcredit when he was not entitled toit. Matter of Benjamin, 756 N.E.2d967 (Ind. 2001).

Throughout this column I willuse the awkward phrase “reportablepro bono legal services.” I couldn’tthink of a pithy acronym. RPBLSdoesn’t exactly roll off the tongue. I have been careful to do thatbecause there are some significantdisconnects between Rules 6.1 and6.7 that lawyers need to be awareof. I will point them out.

When is it effective?

Rule 6.7 is nominally effectiveJan. 1, 2015. However, the firstobligatory reporting of pro bonoactivities will not be until the 2016annual registration, which is due by Oct. 1, 2016. That registrationprocess will call upon lawyers to report pro bono activities

in calendar year 2015. The consid-erable lead time is helpful because it lets all of us know that beginningJan. 1, 2015, we will need to startkeeping track of our time doing pro bono work and our financialcontributions in support of probono during the year. Each year by Oct. 1, we will be expected to report our pro bono activities for the previous calendar year.

Who has to report?

There are four categories ofexemptions: (1) members of thejudiciary and judicial staff; (2) gov-ernment lawyers prohibited bystatute, rule, regulation or agencypolicy from engaging in outsidepractice; (3) retired lawyers; and (4) inactive lawyers. I get theexemption from reporting probono legal services hours for thesecategories of lawyers. I don’t quiteget why these exempted lawyersshould be exempt from reportingdonations to qualified recipientorganizations. I know many lawyersand judges who fall into these categories who give generously.Shouldn’t we want to capture thatgenerosity as part of the measure of our profession’s commitment to access to justice?

What must be reported?

Two (or three, depending onhow you count) items of informa-tion must be reported on the annu-al registration statement: first, the approximate number of hoursspent providing reportable probono legal services during the cal-endar year. The specific reportinglanguage is: “I have personally pro-vided approximately ___ hours ofreportable pro bono legal servicesfor the previous calendar year end-ing December 31.” Rule 6.7(a)(1). I will discuss what activities arereportable as pro bono legal ser-vices below – it is not necessarilyobvious.

ETHICS CURBSTONE

Pro bono and pro bono reportingBy Donald R. Lundberg

10 RES GESTÆ • OCTOBER 2014

Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 10.14_RG 09.05 10/28/14 3:33 PM

The second reportable item is the amount of pro bono-relatedfinancial contributions made in the calendar year. The specificreporting language is: “I have either(a) contributed approximately$______ to the Indiana BarFoundation, to any of the local IRC501(c)(3) pro bono districts listedat http://www.in.gov/judiciary/probono/2338.htm, or to a legal service organization located inIndiana that is eligible for fee waiv-er under I.C. 33-37-3-2(b); or (b) made an in-kind contributionof $______ to one or more of theforegoing qualifying legal serviceorganizations or local pro bono districts.” Rule 6.7(a)(2).

The qualified recipient organi-zations include the Indiana BarFoundation, which is the statewideadministrator of Indiana’s Intereston Lawyer Trust Accounts (IOLTA)

program and the distributor ofIOLTA funds to regional pro bonodistricts and the 12 regional probono districts in Indiana. Id. The 12 regional pro bono districts are:

District A: NWI Volunteer Lawyers, Inc.

District B: The Volunteer Lawyer Network, Inc.

District C: Volunteer LawyerProgram of Northeast Indiana, Inc.

District D: Indiana Legal Services, Inc.

District E:Wabash Valley Volunteer Lawyers, Inc.

District F: District 6 Access to Justice, Inc.

District G:Heartland Pro BonoCouncil, Inc.

District H: District 10 Pro Bono, Inc.

District I: Legal Aid District Eleven, Inc.

District J: Legal Volunteers, District 12, Inc.

District K: Volunteer LawyerProgram of Southwestern Indiana, Inc.

District L: Southern Indiana Pro Bono Referrals, Inc.

In addition, the qualified recip-ient organizations include legal services organizations whose clientsare automatically exempt from pay-ing civil filing fees and other courtcosts under I.C. 33-37-3-2(b).Those organizations are IndianaLegal Services, Inc., or “anothercivil legal aid program.” It isunclear what organizations fallwithin the definition of a “civil legal aid program,” and that listmay change from time to time. The Indiana Division of State CourtAdministration administers a state


(continued on page 12)

RG 10.14_RG 09.05 10/28/14 3:33 PM

fund for legal assistance to indigentpersons in civil cases. The followingorganizations are currently quali-fied to receive distributions fromthe Civil Legal Aid Fund, but thenumber of civil legal aid programsis undoubtedly more extensive:

Center for Victim & Human Rights

Disability Legal Services of Indiana

District 10 Pro Bono Commission,Inc.

Elkhart Legal Aid Service, Inc.

Indiana Legal Services, Inc.

Indianapolis Legal Aid Society, Inc.

Law School Legal Services, Inc.

Legal Aid District Eleven, Inc.

Legal Aid Corporation of TippecanoeCounty, Inc.

Legal Aid Society of Evansville, Inc.

Neighborhood Christian LegalClinic, Inc.

Volunteer Program of NortheastIndiana, Inc.

Whitewater Valley Pro BonoCommission, Inc.

As you can see, this list over-laps in part with the pro bono districts.

What are reportable pro bono legal services?

Rule 6.7 is helpful in distin-guishing between what are and arenot reportable pro bono legal ser-vices. “Reportable pro bono legalservices are those legal services ren-dered directly to or for the benefitof persons reasonably perceived tobe of limited means without chargeor expectation of a fee by the lawyerat the time the service commences.”Rule 6.7(b)(1). Reportable probono legal services or for represen-tations that are the result of a conscious decision to provide legalservices for free to someone whocannot pay for them – it is not an after-the-fact assessment when

a client doesn’t pay a bill. See Rule6.7(b)(3). Pro bono legal servicesmay be rendered outside the state of Indiana. Rule 6.7(b)(2).Reportable pro bono legal servicesdo not include “services renderedto improve the law, the legal systemor the legal profession unless solelyaimed at assisting persons of limit-ed means.” Id. Some of those ser-vices might count as in-kind contri-butions though, a point I discusslater. “Activities for improving thelaw, the legal system or the legalprofession” are considered to bepro bono services for purposes of Rule 6.1.

Reportable pro bono legal services are those that are providedfree of charge to the client. Thus,they will not include the value of a discount given by a lawyer to a client who cannot afford to pay a lawyer’s normal rate. That is per-plexing – or at least unexplained –since Rule 6.1 expressly includesproviding professional services at a reduced fee to persons of limitedmeans in its definition of pro bonoservices.

Persons of limited means aredefined as “individuals or familieswhose household incomes are up to 200 percent of the federal pover-ty guidelines.” Rule 6.7(b)(1). 200 percent of the federal povertyguidelines amounts to $23,340annually for a household of one;$31,460 for a household of two;$39,580 for a household of three;and $47,700 for a household offour. These amounts are adjustedannually and reported in theFederal Register. Thus, it is notreportable pro bono legal services if the client is known to haveincome above 200 percent of thefederal poverty guidelines, even if the person is legally indigent, i.e., does not have the resources to be able to afford the legal servicesneeded to resolve a particular legal

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problem – such as one that is com-plex.

Finally, legal services to organi-zations, even organizations thatserve poor people, including orga-nizations that provide legal servicesto poor people, appear not to count as reportable pro bono legal services. For example, incorporat-

ing and securing tax-exempt statusfor such an organization might notbe eligible for pro bono reporting. I stop short of being definitive onthis point because Rule 6.7(b)(1)states that reportable pro bono legalservices can include legal servicesrendered “for the benefit” of poorpersons. This language, especially

juxtaposed with the mention oflegal services rendered directly topoor people, leaves open the possi-bility that providing pro bono legalservices to an organization whosemission is to provide services (andnot necessarily just legal services)directly and exclusively to poorpeople constitutes providing legalservices for the benefit of poor peo-ple. Here, again, we could benefitfrom more guidance. If my inter-pretation is right, this is in tensionwith Rule 6.1, which expresslyincludes as pro bono legal servicesprofessional services provided topublic service or charitable groupsor organizations. If the goal of thepro bono reporting rule is to cap-ture the total hours of legal timedevoted by lawyers for the tangiblebenefit of poor people, pro bonolegal services to poor people-serving organizations ought to becaptured as a legitimate form ofreportable pro bono legal services.

It is clear that the Court had inmind an image of what constitutespro bono legal services for report-ing purposes that is different andnarrower than what pro bono legalservices are generally. Presumably,by requiring reporting of a narrow-er class of pro bono legal services,the Court wished to incentivizelawyers to focus their pro bonoefforts on direct client legal repre-sentation.

What are in-kind contributions?

What are in-kind contribu-tions, and how are they to be val-ued? Unfortunately, the rule is nothelpful on this complex question.In fact, it uses language that evadesthe question of valuation by simplyassuming that the value of in-kindservices can be readily ascertained.

Valuing in-kind contributionsto charities can be complicated. For example, a donation of tangible



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goods to a 501(c)(3) organizationwill generally be tax deductible atfair market value. Volunteeringtime to a 501(c)(3) organizationwill not be deductible. How-ever, apart from the issue of taxdeductibility, from the vantage ofthe 501(c)(3) organization, treatingthe value of donated services asorganizational income is an entirelydifferent proposition. Generally,charitable organizations should recognize the value of some con-tributed services under GAAPbecause if they were not con-tributed the organization wouldhave to pay for them. (Disclaimer: I am neither a tax lawyer nor aCPA. Don’t rely on this as legal or accounting advice.)

Are you confused? I am. On Oct. 1, 2016 (or earlier if I getaround to registering before the last minute), should I report thevalue of the time I spend on, forexample, the board of the IndianaBar Foundation? My board serviceis clearly not a pro bono legal service because it is not direct client representation. But is it anin-kind donation to a qualifiedorganization – which the IndianaBar Foundation is?

I assume the idea behind Rule6.7 is that it paints a picture of thevalue lawyers as a profession give tosupport the organizations that facil-itate direct pro bono representationof low-income clients. Also, somelawyers might not feel qualified to provide direct legal services tolow-income clients because they are not knowledgeable about thelegal problems poor people face.Donation reporting gives them theoption to report donations as theirway of supporting the profession’scommitment to pro bono publicoand access to justice. If I give $500to such a qualified organization(which is clearly a reportable cashdonation), that $500 might be aslikely (more likely, in fact) to beused to fund the overall administra-tive costs of the organization as it isto directly fund legal representationof low-income clients. Seen fromthat vantage point, the many hourslawyers donate to organizationsthat represent low-income clients,by board service for example, helpcomplete the picture of the profes-sion’s support for pro bono andaccess to justice activities and rep-resent real value to those organiza-tions that redounds to the benefitof low-income clients. It also levelsthe playing field, so to speak, byallowing lawyers who practice inesoteric areas of little relevance topoor people to show their supportin ways other than or in addition to giving cash. This particular pointis sufficiently uncertain that I willkeep my own counsel on how thereporting of donated time shouldbe handled.

If we choose to report the value of our donated time, we have the problem of valuing our time.Again, we have no guidance. I’llhave to leave it to each of you tofigure out what your time is worth.In a free market for legal services, it is arguably what clients pay us forour legal work day in and day out.

It is true that board service or otherdonated time might not be legalwork in the specialty areas forwhich our clients compensate us.Nonetheless, time being inelastic,an hour devoted to a qualifiedorganization does carry the oppor-tunity cost of not being able to sellthat same hour on the open marketto a client willing to pay for it. So put your economist’s hat on and do your best to figure it out.

Public disclosure

To recap, providing pro bonolegal services (or making donationsto pro bono-related organizations)is not mandatory in Indiana.Reporting those hours and dona-tions will soon be mandatory. Thus,it will technically comply with Rule6.7 to report zero hours of probono legal services and zero dollarsof contributed funds. It should also be really embarrassing to makesuch a report, but who’s going toknow? Well, it turns out probablynobody.

A controversial question thathas been tied to pro bono reportingis whether those reported hours ordonations should be made public.As a technical matter, publicreporting would be easy. Some of our attorney registration infor-mation is available to the public on the online roll of attorneys. The number of reported pro bonohours and qualified donationscould readily be added to the publicpart of the roll of attorneys, but theSupreme Court has weighed in onthe confidential side of the debate.“Information received pursuant to this Rule shall not be publicallydisclosed on an individual or firm-wide basis.” Rule 6.7(d).

The state Access to PublicRecords Statute exempts recordsfrom public disclosure that are“declared confidential by or underrules adopted by the supreme courtof Indiana.” I.C. 5-14-3-4(a)(8).



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Rule 6.7(d) is probably a declara-tion of confidentiality by theSupreme Court, although a stickler(not me, of course) might point outthat it stops slightly short of beingan explicit declaration of confiden-tiality.

I suspect the other choice ofmaking pro bono reporting recordsavailable to the public would havebeen highly controversial within the bar.

A little commentary please

Initially, I wasn’t sure this new rule presented enough grist foran entire column. As you can see, I was wrong. Rule 6.7 will be theonly Rule of Professional Conductthat contains no comments. I amhopeful that the Supreme Courtwill consider adding comments toRule 6.7 to provide some rationalefor the distinctions between Rule6.1 and 6.7 and to provide interpre-tive guidance around the question,among others, of what constitutesan in-kind contribution. Regardlessof how the Court does it, I thinkfurther guidance to the bar is inorder. Most lawyers I know arecommitted to and proud of probono publico service and look for-ward to helping the Court quantifythat service.

Conclusion

This is a pretty modest ruleand relatively painless to follow.Keeping track of monetary contri-butions should be easy. Keepingtrack of reportable pro bono hourscould be quite complicated. Manylaw firms have pro bono reportingstructures that track time spent onpro bono matters in much the sameway as on fee-paying client matters.The challenge presented by Rule 6.7is creating a secondary system thattracks general pro bono time thatfalls within Rule 6.1 and separatelytracks pro bono time reportableunder Rule 6.7. Keeping track of

in-kind contributions should berelatively easy in those somewhatunusual circumstances where thedonation is of goods. Keeping trackof time donated to qualified organi-zations should be easy by simplyentering time in your firm’s billingsystem and treating the organiza-tion as a pro bono client.

We’ve got a few months to get our systems in place. It will be

interesting to see all of this infor-mation aggregated. I suspect theamount of time and money direct-ed by lawyers to assisting the poorwill be pretty impressive. Weshould all step up and do more to make that data mind-blowing. �


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“Drone” is a commonmedia term for devicesthat are used for

flight without an onboard pilot.They are more formally known as Unmanned Aircraft Systems or UAS. UAS can be as simple asmodel aircrafts used for recreation-al purposes or as complex as sur-veillance vehicles flying over hostileterritory. The United States militaryhas used UAS in an effort todecrease human deployment inpotentially dangerous locationswhile increasing surveillance activi-ties. Additionally, other agencies,groups and individuals have foundpublic and private uses for UAS.1

For example, in the agriculturalindustry, the use of UAS offers a number of potential benefits for farm operators. According to several press releases, UAS canhelp farmers detect crop disease or locate missing or hurt animals,saving farmers the time and moneyspent walking the fields on foot orby manned vehicle. Some farmersclaim that they are better able todetect disease because of the advan-tage of aerially viewing fields.2

While the FAA has stated that usingUAS for such agricultural purposesis illegal without certification, thishas not stopped some farmers frompurchasing UAS for upwards of$12,000.3

Current regulation of UAS

The FAA pub-lished a Notice ofPolicy in an effort toensure that UAS areoperated at a certainlevel of safety. Publicinstitutions, like gov-ernment agencies, can apply for a Certifi-cate of Waiver orAuthorization (COA)from the FAA to useUAS for experimenta-

tion and research. The operator of the UAS must also comply with a strict set of rules. This type of certification has been granted for numerous public institutions. The FAA established another policy for private users, known as “Unmanned Aircraft SystemsOperating as Civil Aircraft.” In thispolicy, the FAA admits that thepotential use of UAS in the com-mercial or civil sector is as diverseas in the public sector. The requiredcertification to operate a UAS in thecivil sector is also similar to the cer-tification required to operate a UASin the public sector, e.g., certifiedcivil operators may only use UAS in an experimental capacity.4

The FAA states in its Notice of Policy that no person or group in the civil or private sector mayoperate a UAS in the national airspace (NAS) unless the person is operating the aircraft for purelyrecreational purposes under AC 91-57 Model Aircraft OperatingStandards. Therefore, using UASfor business or commercial purposes is prohibited.5

The FAA has issued fines andcease & desist orders to UAS opera-tors who were flying UAS for busi-ness purposes. Recently, the FAA

fined UAS operator Raphael Pirker$10,000 for flying a UAS to create a promotional video for compensa-tion. An administrative law judgedismissed the fine, stating that sincethe FAA had not published anyrules regarding the flying of UAS, it could not prohibit their use.6

This ruling has been stayed pend-ing appeal.7

Future regulation of UAS

Regulation of business or com-mercial UAS is expected to be lessprohibitive in the near future. TheUAS Notice of Policy was publishedin the Federal Register in 2007, andat that time, the FAA stated that itwas undertaking a safety review toexamine the feasibility of creating a different regulatory category of UAS that were small and slowenough to adequately mitigate hazards to other aircraft and persons on the ground.8

Then, in 2012, Congress directed the FAA to create rules for “safe integration” of UAS bySept. 30, 2015. The FAA predictsthat this safe integration will beincremental. The agency expects to publish a proposed rule for UAS under 55 pounds later in 2014,9 though critics are

Planet of the drones: the legal implications of the commonplace use of unmanned aircraft systems

By Todd J. Janzen and Sarah L. Doyle


Todd J. JanzenPlews Shadley

Racher & Braun LLPIndianapolis, [email protected]

AGRICULTURAL LAW

RG 10.14_RG 09.05 10/28/14 3:33 PM

skeptical the FAA will meet thedeadlines.

Rulemaking will allow busi-nesses and individuals to use UASto improve data collection andinformation processing. But whilethe FAA is tasked with the regula-tion of UAS permitting and safety,some speculate that the FAA is ill-equipped to handle privacy concerns of the magnitude imposedby common UAS use.10 “As dronetechnology continues to develop at an overwhelming rate, drones are quickly becoming available fordomestic use. Presently, there areno specific legislative limitations ondomestic drone use. Consequently,drones can be used in a mannerthat drastically invades individualprivacy.”11

The main function of UAS is surveillance. “Due to its relativecost effectiveness [and maneuver-ability], drone aerial surveillancehas quickly become the most effi-cient tool for monitoring livestockmovements, mapping wildlife habi-tats, maintaining property security,performing road patrols, combat-ting piracy, among other [uses].”12

Additionally, many state and local law enforcement agencies have purchased UAS for variouspurposes. Government agencies seevalue in the use of UAS technologyto assist in enforcing regulations and permits. Specifically, theEnvironmental Protection Agencyhas introduced proposals for UASto be integrated into its opera-tions.13

Analysis of Fourth Amendmentissues raised by the use of UAS

The use of UAS by agenciesand law enforcement raises serious concerns related to privacy.Traditionally, the right to privacyhas been found in the FourthAmendment of the U.S.Constitution. The Fourth Amendment guarantees,

… the right of the people to besecure in their persons, houses,papers, and effects, against unreason-able searches and seizures, shall notbe violated, and no warrants shallissue, but upon probable cause, supported by oath or affirmation,and particularly describing the place to be searched, and the persons or things to be seized.14

The Fourth Amendment rights have been tested through-out history with varying resultsdepending on the facts of eachcase.15 For example, in Oliver v.U.S., the police entering of a pri-vately owned, open field was notan invasion of privacy, even thoughthere was a trespass to land withoutthe landowner’s permission.16 Incontrast, the Court in U.S. v. Jonesfound that the installation of aglobal positioning system (GPS) on a person’s car is an invasion ofprivacy because there was a trespassonto the person’s “effect.”17

The outcomes of these caseswere dependent on where theintrusion occurred. In Jones, therewas a trespass to a person’s car (an “effect” under the FourthAmendment18) in order to learn

information about the user, wherein Oliver there was a trespass to aprivate, open field. The Court inJones explained that an open field isnot one of the protected areas enu-merated in the Fourth Amendment,and that the government’s intru-sion on such an area, unlike theintrusion upon an “effect” like inJones, is of no Fourth Amendmentsignificance.19 In Jones, the Courtstated that a trespassory test doesnot exclude the reasonable expecta-tion of privacy test, which was usedin Oliver, and the reasonable expec-tation of privacy test may be appro-priate to consider in situationswhere there was no governmentaltrespass.20

The reasonable expectation of privacy test derives from theSupreme Court case, U.S. v. Katz.21

The Court in Oliver relied on Katzand stated that the government’sintrusion on an open field was nota “search” in the constitutionalsense because there is no reasonableexpectation of privacy in an openfield. The Court explained thatwhile trespass is one factor in


STATEWIDEMEDIATION PRACTICE


RG 10.14_RG 09.05 10/28/14 3:33 PM

determining whether expectationsof privacy are legitimate, it does notcomplete the analysis. Trespass lawextends to all instances of intrusiononto private property, whether theexercise of the right to exclude fromproperty supports a legitimate pri-vacy interest or not. In the case ofopen fields, the general rights ofproperty protected by the commonlaw of trespass have little or no relevance to the applicability of the Fourth Amendment and thereasonable expectation of privacy(the “Open Fields Doctrine”22).23

Searches conducted throughthe use of airspace have traditional-ly been considered in the context of the Open Fields Doctrine and thereasonable expectation of privacytest. In Dow Chemical Co. v. U.S.,the EPA flew over a manufacturingsite at 1,200 feet to view the insideof a manufacturing plant.24 TheSupreme Court said that this was a permissible search because therewas no reasonable expectation thatplanes flying over the site could not see into the site. The Court reasoned that the open areas of thefacility are not like the “curtilage”

of a dwelling for purposes of aerialsurveillance.25 The site was morelike an open field; therefore, takingphotographs from the navigableairspace is not a search prohibitedby the Fourth Amendment.26

Similarly, the Supreme Courtin Florida v. Riley held that therewas no unconstitutional searchwhen the police used a helicopter to fly 400 feet over a person’s homebecause there was no reasonableexpectation that marijuana plants were protected from beingobserved by the naked eye at analtitude of 400 feet.27 The Courtreasoned that since commercialflight is routine, and helicopters arenot bound by the aerial limits ofother aircraft in Florida, that it wasreasonable to expect a helicopter to fly over a home at this altitude.28

In this case, the only visible mari-juana plants were located in a barn,10 to 20 feet from the private prop-erty owner’s home, under a roofthat had a small gap.29 The Courtsaid that even though measureswere taken to conceal the plants, a small gap in the roof was enoughto eliminate a reasonable expecta-

tion of privacy.30 This case placesless emphasis on whether an enu-merated area is being observed, butrather whether or not it was likelythat the area could be observed by the police from the air. JusticeO’Connor states in her concurrencethat it would be absurd to requirethe police to avert their eyes walk-ing down a neighborhood of hous-es, so it follows that what can be seen from the outside has noreasonable expectation of privacyattached to it.31 “What a personknowingly exposes to the public,even in his own home or office, is not a subject of FourthAmendment protection.”32

Based on this precedent, thereasonable expectation of privacytest will likely be applied to casesthat involve government use ofUAS over private land. Not onlydoes the use of the reasonableexpectation of privacy test alignwith precedent, but it also leavesthe law flexible to adjust to futuretechnologies. It also avoids catego-rizing certain searches as automati-cally outside the scope of FourthAmendment protection justbecause the ownership of airspaceabove private property is unde-fined. It also means that a search is not automatically unconstitu-tional because it took place in private airspace.

Indiana privacy law

State law can offer more con-crete parameters for the use ofUAS. In Indiana, there are severalprivacy protections in place,including Constitutional provi-sions, statutes and common law.

Indiana’s Constitution repeatsverbatim the language of the FourthAmendment in Article I, §II.33

However, the invasion of privacytest requires consideration of “the totality of the circumstances”

LEGAL IMPLICATIONS OF DRONES continued from page 19


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as opposed to the federal analysis of reasonable expectations. InLitchfield v. State, 824 N.E.2d 356(2005), the Indiana Supreme Courtstated that the appropriate test is a consideration of (1) the degree of concern, suspicion or knowledgethat a violation has occurred, and (2) the degree of intrusion themethod of search or seizure impos-es on the citizen’s ordinary activi-ties, and (3) the extent of lawenforcement needs. There havebeen no cases in Indiana appellatecourts addressing the issue of inva-sion of privacy by aircraft, so it isunknown if the “method” of intru-sion (flying a UAS over privateproperty) is likely to carry signifi-cant weight when considered with the other factors.

Many states have taken the initiative to propose state specificlegislation about UAS use withinstate borders. Florida, Montana

and Virginia were some of the first states to propose legislation in 2013. The majority of states have proposed or enacted legisla-tion at this time.34

In Indiana, Public Law 170(PL170), which became effective onJuly 1, prohibits state governmententities from using UAS to collectevidence without a warrant, con-sent from the landowner or exigentcircumstances. Government entitiesmay use UAS for environmental,geographical or any surveying pur-pose other than a criminal justicepurpose without a warrant.35 Anopen question is whether evidenceof a crime should be admissible incourt when collected inadvertently,e.g., evidence of a marijuana fielddiscovered by lawful surveying ofland by a government agency for a non-criminal justice purpose.

PL170 also has a provision specific to private persons. The law

states that any person that know-ingly or intentionally places a cam-era or surveillance equipment that records images or data whileunattended on private property ofanother person without consent ofthe affected owner is committing acrime.36 It is unclear if it is a crimeto fly UAS over property of anotherwithout recording images butobserving something in real time.Additionally, the use of the word“unattended” raises questions as to whether this part of the lawrefers to UAS at all.

Indiana has also codified crim-inal trespass.37 Criminal trespassoccurs when “a person who doesnot have a contractual interest inthe property knowingly or inten-tionally enters the real property ofanother person after having beendenied entry by the other person orthat person’s agent.”38 The IndianaCourt of Appeals in Alves v. Statefound that even though there wasno evidence that the intruder actu-ally set foot on the land, there wasevidence that he leaned over thefence, entering the airspace abovethe land. Part of the intruder’s bodyentering the airspace was enoughevidence to convict for trespass.39

This holding, along with Indiana’sPL170, suggests that individualsmay be committing a trespass whenflying UAS in the airspace aboveprivate property without thelandowner’s permission, regard-less of whether the UAS is takingpictures or video.

Options in tort law may alsoprovide a framework for recoveryfrom the proscribed use of UASover private property.40

Conclusion

Fourth Amendment protec-tions are historically limited toareas like the home, the curtilage of the home, the person and a per-son’s effects or papers. Areas likeopen fields, which include build-

LEGAL IMPLICATIONS OF DRONES continued from page 20


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RG 10.14_RG 09.05 10/28/14 3:33 PM

ings not related to a person’sdwelling, carry little expectation of privacy under the FourthAmendment. Traditionally, air-space has been treated more likeopen fields because courts haveupheld searches as constitutionalwhen the government uses airspaceabove private property to makeobservations about the landscapebelow. To what extent society has a reasonable expectation of privacyfrom UAS surveillance is an unan-swered question.

Indiana affords citizens someprotections against invasions of pri-vacy and trespass through its con-stitution, statutes and common law.The totality of the circumstancestest is used by Indiana state courtswhen there is a claim of invasion of privacy against the state.Additionally, the legislature hasmade it illegal: (1) for governmentagencies to use a UAS for criminaljustice purposes without a warrant,consent or exigent circumstances,(2) for individuals to use an unat-tended camera or video recordingdevice to survey property withoutthe property owner’s permission,and (3) to trespass without permis-sion from the landowner. Theextent that tort law can be used to recover damages from the use of UAS by other private entities is unclear, but a framework forrecovery likely exists.

The law as it applies to UASwill remain unclear until UASbecome more commonplace, pre-sumably after the FAA begins itsrulemaking. It will be interesting to see if the law will change orremain static in order to maintainour current expectations of privacy,or if our expectation of privacy willdiminish with the growing use ofUAS technology. �1. Unmanned Aircraft Operations in the

National Airspace System, 72 Fed. Reg. 6689(published Feb. 13, 2007).

2. See generally, Christopher Doering, “Growinguse of drones poised to transform agriculture,”

USA TODAY (Mar. 23, 2014)http://www.usatoday.com/story/money/business/2014/03/23/drones-agriculture-growth/6665561; Jeannine Otto, “UAVs are next wave of agricultural technology,”AgriNews (Apr. 9, 2014) http://agrinews-pubs.com/Content/News/MoneyNews/Article/UAVs-are-next-wave-of-agricultural-technology-/8/27/10106; Rakesh Sharma,“Growing Use of Drones in Agriculture,”Forbes (Nov. 26, 2013) http://www.forbes.com/sites/rakeshsharma/2013/11/26/growing-the-use-of-drones-in-agriculture.

3. Molly McMillin, “Sales soar at AgEagle,Neodesha-based drone manufacturer,” The Wichita Eagle (updated Mar. 26, 2014)http://www.kansas.com/news/business/aviation/article1138377.html.

4. 72 Fed. Reg. 6689.

5. Id.

6. Pirker, Docket No. CP-217, Nat’l Transp.Safety Bd. (Mar. 6, 2014).

7. Federal Aviation Administration, FAA Statement, (Mar. 7, 2014)http://www.faa.gov/news/press_releases/news_story.cfm?newsId=15894

8. 72 Fed. Reg. 6690.

9. Federal Aviation Administration, “BustingMyths about the FAA and UnmannedAircraft” (updated Mar. 7, 2014)http://www.faa.gov/news/updates/?newsId=76240.

10. Chris Schlag, “The New Privacy Battle: Howthe Expanding Use of Drones Continues toErode Our Concept of Privacy and PrivacyRights,” 13 PGH. J. Tech. L. & Pol’y 1, 21.

11. Id. at 2.

12. Id. at 8.

13. Id. at 10.

14. U.S. Const. amend. IV

15. See Schlag, supra note 10 at 12-14.

16. See Oliver v. U.S., 466 U.S. 170 (1984)

17. See U.S. v. Jones, 132 S. Ct. 945, 565 U.S. ___(2012).

18. Id. at 949.

19. Id. at 953.

20. Id. at 952.

21. The test states that there must be a subjectiveexpectation of privacy and that society must bewilling to recognize this expectation as reason-able. Katz v. United States, 389 U.S. 347,(1967)(Harlan, J., concurring).

22. Hester v. U.S., 265 U.S. 57, 59 (1924).

23. Oliver, 466 U.S. at 183 (1984).

24. Dow Chem. Co. v. United States, 476 U.S. 227,229 (1986).

25. Id. at 239.

26. Id. at 238.

27. Fla. v. Riley, 488 U.S. 445, 450-51 (1989).

28. Id. at 451-52.

29. Id. at 448.

30. Id. at 450.

31. Id. at 453 (O’Connor, J., concurring).

32. Id. at 449.

33. Ind. Const. Art. I, § II.

34. Schlag, supra, at 19.

35. See Ind. Code §35-33-5-9 (2014).

36. See Ind. Code §35-46-8.5-1.

37. I.C. Ann. 35-43-2-2.

38. Alves v. State, 816 N.E.2d 64, 65 (Ind. Ct. App. 2004).

39. Id. at 66.

40. See Creel v. I.C.E. & Assocs., 771 N.E.2d 1276,1280 (Ind. Ct. App. 2002); Conner v. Presidents& Trs. of New Albany, 1 Blackf. 88, 89 n. 2(Ind. 1820); Enos Coal Mining Co. v. Schuchart,243 Ind. 692, 694 (1962).

Todd J. Janzen, Indianapolis, is a partnerat Plews Shadley Racher & Braun. Hefocuses on agricultural law, transactionalmatters and business services. Todd is the current chair of the American BarAssociation’s Agricultural ManagementCommittee and also serves as the generalcounsel to the Indiana Professional DairyProducers.

Sarah L. Doyle is a 2015 J.D. candidateat Penn State Dickinson School of Law.She served as a law clerk at IndianaFarm Bureau, Inc. over the summermonths. Her main focus for the summerwas researching the law related to the useof UAS. While at school, Sarah serves aspresident of the Penn State AgriculturalLaw Society.


New IndianaEnvironmental Statutesavailable

This is the 2014 edition of the annualpublication, Indiana Environmental

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It is a convenient desktop resource,including Title 13 (Environment) of theIndiana Code, plus the AdministrativeOrders & Procedures Act (AOPA) and numerous related statutes.

This year the softbound volume is 566 pages and costs $30 plus shipping(note that shipping is less if you poolorders).

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RG 10.14_RG 09.05 10/28/14 3:33 PM

“Talk to a Lawyer Today” Public Service • Jan. 19, 2015Sign up today!

“Life’s most persistent and urgent question is, ‘What are you doing for others?’” – Dr. Martin Luther King Jr.

This annual ISBA and Indiana Pro Bono Commission program is designed as a legal information clinic, to be held on the MLK holidayMonday, Jan. 19, 2015. Participating lawyers are asked to donate 2 hours to speak with the general public on the phone or in personabout legal issues. There are several locations throughout the state. All volunteers will be contacted by the site coordinators for theirlocations to confirm the times and places to volunteer. Please mail or fax this form to the appropriate site coordinator listed below.

Name: ___________________________________________________________________________________________

Address: __________________________________________________________________________________________

Phone: ____________________________________________________________________________________________

Attorney I.D. number: ________________________________________________________________________________

Email address: ______________________________________________________________________________________

I wish to volunteer 2 hours of my time for “Talk to a Lawyer Today” on Monday, Jan. 19, in the district checked below.

� District AJasper, Lake, Newton & Porter counties

Judith H. Stanton, Executive DirectorNWI Volunteer Lawyers, Inc.651 E. Third St., P.O. Box 427Hobart, IN 46342219-942-3404 • 219-945-0995 (fax)[email protected]

� District BElkhart, Marshall, Kosciusko, St. Joseph, LaPorte & Starke counties

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� District CAdams, Allen, Dekalb, Huntington, LaGrange,Noble, Steuben, Wells & Whitley counties

Ruth de Wit, Executive DirectorVolunteer Lawyer Program of NE Indiana, Inc.111 W. Wayne St.Ft. Wayne, IN [email protected]

� District DBenton, Boone, Carroll, Clinton, Fountain,Montgomery, Parke, Tippecanoe, Vermillion,Warren & White counties

Timothy E. Peterson, Plan AdministratorIndiana Legal Services-Lafayette639 Columbia St., P.O. Box 1455Lafayette, IN 47902-1455765-423-5327 • 800-382-7581765-423-2252 (fax)[email protected]

� District ECass, Fulton, Grant, Howard, Miami, Pulaski, Tipton & Wabash counties

Luisa Michelle White, Plan AdministratorWabash Valley Volunteer Attorneys, Inc.Indiana Legal Services – Lafayette8 N. 3rd St., Suite 102Lafayette, IN [email protected]

� District FBlackford, Delaware, Hamilton, Hancock, Henry, Jay, Madison & Randolph counties

Christianne Brock, Pro Bono CoordinatorDistrict 6 Access to Justice, Inc.P.O. Box 324New Castle, IN 47362765-521-6979 • [email protected]

� District GMarion County

Dana Luetzelschwab, Plan AdministratorHeartland Pro Bono Council151 N. Delaware St., Suite 1800Indianapolis, IN 46204317-400-7435317-631-9410, [email protected]

� District HClay, Greene, Hendricks, Lawrence, Monroe, Owen & Putnam counties

Diane Walker, Plan AdministratorDistrict 10 Pro Bono Project, Inc.P.O. Box 8382Bloomington, IN 47407-8382812-339-3610 • 812-339-3624 (fax)[email protected]

� District IBartholomew, Brown, Decatur, Jackson,Jennings, Johnson, Rush & Shelby counties

Karla Davis-Green, Executive DirectorLegal Aid-District Eleven, Inc.1531 13th Street, Suite G330Columbus, IN 47201877-378-0358 (intake line)812-314-2721 (plan administrator direct line)812-372-3948 (fax)[email protected]

� District JDearborn, Fayette, Franklin, Jefferson, Ohio,Ripley, Switzerland, Union & Wayne counties

Frank Cardis, Plan AdministratorLegal Volunteers of Southeast Indiana, Inc.318 N. Walnut StreetLawrenceburg, IN 47025812-537-0123 • 877-237-0123812-537-7090 (fax)[email protected]

� District KDaviess, Dubois, Gibson, Knox, Martin, Perry,Pike, Posey, Spencer, Sullivan, Vanderburgh,Vigo & Warrick counties

Beverly CornPlan AdministratorVolunteer Lawyer Program of Southwestern Indiana915 Main St., Suite 208Evansville, IN 47708812-402-6303 • 812-402-6304 (fax)[email protected]

� District LClark, Crawford, Floyd, Harrison, Orange, Scott & Washington counties

Andrew Adams, Plan AdministratorSouthern Indiana Pro Bono Referrals, Inc.705 E. Court Ave.Jeffersonville, IN [email protected]

RG 10.14_RG 09.05 10/28/14 3:33 PM

Historically, professionalswould draft or dictate aletter, an assistant would

type up that letter, and the profes-sional would take at least one more look and make any necessarychanges before finalizing the docu-ment and subsequently placing it in the mail.

Even with the advent of thecomputer, writers are still morelikely to initially draft a letter andread it over at least once, allowingtime to let it sit and later bring fresheyes to the content. For many of us,we are surprised to discover uponthe second reading that the draftreads differently than originallyintended.

Of course, letters are still partof the legal world, but more andmore often attorneys communicatewith clients and other partiesthrough informal modes of com-munication, especially throughemail, which is the focus of this column. Referring to emails as an“informal” means of communica-tion reveals one of the potentialconcerns with incorporating emailsinto legal practice. The process ofdrafting, rethinking, and rewritingrarely happens with email commu-nications. Instead, business isoftentimes conducted at lightningspeed, and we can be availablethrough our smartphones 24/7 –while sitting in a meeting, walkingdown the sidewalk, or riding in acar. And the general feeling is thatwe need to respond immediately.The thinking part of the writing –certainly the part where we wouldlet our draft sit for a period of timeand then review it more objectively– is usually missing. But what seemslike expediency and efficiency at the moment can produce nega-tive results down the road. Whatfollows are a few suggestions forwriting professional emails.

To email or not to email?Consider the content

Make sure email is the rightchoice for the substance of yourcommunication. Generally, emailsare appropriate when confirming a meeting or sharing general, non-sensitive information. However, anemail is likely not appropriate whengiving the client bad news, convey-ing highly confidential information,or addressing something technicalor difficult to understand, such that the client or other party wouldlikely have follow-up questions.Perhaps in those instances it wouldbe better to convey the informationby phone or even in person, toassess the individual’s body lan-guage and overall reaction. Yourtone can be helpful, especially ifyour goal is to soften the blow ofyour message.

Consider also which mode of communication this particularrecipient might prefer. While mostprofessionals these days are profi-cient in communicating by email,some still prefer to avoid all thingselectronic, including email.

Most expect to hear quicklyfrom the recipient after sending anemail, certainly within 24 hours, ifnot sooner. If, due to the substanceof your response, you need time to fully address the contents of theemail, consider replying quickly toacknowledge receipt of the emailand to let the recipient know youwill address the specifics in a futurecommunication. This gives youtime to consider how to respondand to do so carefully. You mightwrite something like, “Thank youfor your email. I am working onresponding to your questions andwill do so shortly and by no laterthan Oct. 15.”

Further, the substance of youremail may have unintended conse-quences if not phrased carefully

WORDWISE

Count to three before clicking ‘Send’: making wise decisionsabout professional email communications

By Prof. Deborah B. McGregor


with explicit limitations on the use of the substance. For example,if the substance of the email relatesto contract terms, those terms mayunintentionally become part of abinding contract. Emails may alsobe used to support a legal action,such as one in defamation, employ-ment discrimination or sexualharassment, or even to prove crimi-nal liability. Email communicationsmay also be used to help establishpersonal jurisdiction over a party.

Finally, in making your choiceabout what to include, rememberthat your email may be discoverableand ultimately read in open court.First of all, only emails that includelegal advice related to litigation orwork product are privileged. Buteven those will not retain their priv-ilege if shared willingly with a thirdparty. The privilege exists for thebenefit of the client, but if youremail is forwarded to someone else,such as a client’s relative or friend,the privilege is waived. For thesereasons, it is wise to advise clientsto not forward confidential emailsand to learn whether your client’semail account is an account that is accessible by others, such as acorporate account with the client’semployer. Further, an email that is inadvertently disclosed mayresult in a waiver of privilege.1

In short, while email is consid-ered a casual form of communica-tion, when used for busi-ness treat it as a more for-mal document that youwould not mind othersreading.2 Having busi-ness-wide policies inplace for Internet andemail use may help prevent later problems.

(continued on page 26) Prof. Deborah B. McGregor IU McKinney School of Law Indianapolis, Ind. [email protected]

RG 10.14_RG 09.05 10/28/14 3:33 PM

Informal email as a professionaltool: considerations

Informal emails may compriselong, rambling paragraphs or noparagraphs at all. However, youalways help your reader if you makeconscious choices about your email,similar to how you would write a letter on the firm’s letterhead.Consider the following generalguidelines:

‘From’ and ‘To’ lines:Morethan likely your email address will include the name of your firm,which works well. Some writers,however, may write professionalemails using their personal email. If you are one of those, for exam-ple, make sure your personal email address is appropriate. I have received emails from stu-dents whose email names includehotgirl@ and imtheman@. Whilethese names may elicit a chucklefrom the reader, they are notappropriate for communicating

with a professor, a supervisingattorney, a client, a potentialemployer, or any other party in a professional capacity.

Further, consider typing in the addressee in the “To” line last,which serves two purposes. First,this prevents you from sending theemail accidentally before your cor-respondence is complete. Second,this may also encourage you toreread your message one last timein order to be sure it’s as you hopedit would be. Also, make sure youare actually sending the email to theparty intended and only to the partyintended. Do not be that attorneywho sends a confidential settlementagreement to a national reporterrather than to another attorneyworking on the agreement by click-ing on the wrong name in the attor-ney’s online address book.3 Do notbe the one who replies to an e-dis-cussion post about a job opportuni-ty by accidentally replying to “All”(and your employer also happens

to be a member of that same e-dis-cussion list). And do not be theauthor of a “Skadden”-like email,where an associate sent to membersof the firm, including 20 partners,an email that bragged about histwo-hour lunches at sushi bars andhis time spent online with friends.4

The stories are endless but all withthe same result. At a minimumthere’s a degree of embarrassmentinvolved and at the most a client’scase can be adversely affected.

The ‘Subject’ (Re:) line andattachments: Consider writing asubject line that is specific enoughso that your reader can immediate-ly identify the purpose of the emailbut is as succinct as possible. And if there are a series of emails goingback and forth between you and theother party, retain that subject linethroughout your communicationsfor quicker filing purposes and easier access, if needed, later on. If, however, the subject of the correspondence changes, consideraltering the subject line to reflectthe new topic. Further, weigh care-fully when you send an email ashigh priority (!). Remember thestory about the boy who continual-ly cried wolf? If you send everyemail as high priority, your recipi-ent may eventually consider themall as not high priority and not paysufficient attention to the one thattruly counts.

Consider adding any attach-ments you want to include with the email when you are filling in the subject line. If not then, add theattachment when you are explain-ing the attachment in the body ofthe email. That way you are lesslikely to forget the attachmentbefore sending the email. Beforeattaching the document, make sureall marginal comments on yourattachment have been scrubbed.

The salutation and introducto-ry paragraph: The level of formalitywith a salutation in a business-

EMAIL COMMUNICATIONS continued from page 25


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RG 10.14_RG 09.05 10/28/14 3:33 PM

related email depends on your relationship with the recipient. It’s never okay to start with “Hey”or “What’s up?” And formal formrequires that you provide a saluta-tion instead of just diving into thesubstance of the email, especiallythe first time you make contact. If you do not know the recipientwell, consider a formal salutationsuch as “Dear Ms. Smith”; “DearSally,” if you know the client well;or “Sally” or “Hi, Sally,” if writingto a partner or other colleague.

Further, provide an introduc-tory paragraph that not only sets out the purpose of the emailbut also explains any conclusionsyou’ve reached regarding the pur-pose of the email. In other words,tell the reader why you are writingright up front. If you are replying toan email, refer to the original emailyou received, for example, by refer-encing key information from theoriginal email.

If you are addressing multipleissues, set those out and numberthem in the same order in whichyou address them in the email, andthen use those numbered points to create the structure of the rest of your email. Ideally, organize theinformation so the most importanttopic is addressed first. Finally, ifyou do need something specificallyfrom the recipient, state that upfront and then plan to add a gentlereminder at the end.

Closing and signature: End bysummarizing any key conclusionsor points made as well as any fur-ther information needed in order toproceed. When further informationis needed from your reader, delin-eate that information explicitly,ideally using bullet points, and provide any necessary and specificdue dates (e.g., “receipt in my officeby 5 p.m. on Nov. 1,” rather than“within the next two weeks”). Andwhen communicating with some-one in a different time zone or

country, make sure you specify to which time you are referring(e.g., “receipt in my office by 5 p.m.EST” or Beijing time). Finally, whenclosing your email, make sure toinclude your contact informationin the signature block.

Stylistic considerations

Use the format of your email to promote readability. A message

is more readable if you break up a longer message into readableblocks of text, beginning with atopic sentence or heading set apartfrom the text. Consider also spacingbetween each paragraph for read-ability.

Always strive to be professionaland courteous. The best way to



RG 10.14_RG 09.05 10/28/14 3:33 PM

avoid writing an angry or “flaming”email is to delay writing anythinguntil you are no longer angry or annoyed or inclined to vent.(Some writers may write that “reac-tionary” email first, to get it out oftheir system, and then proceed towrite the actual professional emailthat will be sent.) Also, never useoffensive language (again, thinkingof it being passed along to theworld and introduced in court),and DON’T USE CAPITAL LETTERS when writing an email. It always comes across as scream-ing.

Further, you may be inclinedto be less formal with a client youknow well or an attorney represent-ing the other party with whom youare close friends and socialize. But,before including that off-color jokeor sarcastic private note, consideragain that it may be later submittedas evidence in court. And use real

words instead of e-acronyms, e.g., by writing “By the way” insteadof BTW, or emoticons, e.g., by writing “with pleasure” rather

than “.”

Strive for clarity. First of all,short, concise but complete sen-tences are ideal. And be aware ofyour audience as you write, makingsure your reader can understandyour message on one read through,without needing to reread it orrefer to a dictionary. This is espe-cially true when writing to a non-lawyer.

Further, write a clean docu-ment; keep the reader focused onthe message rather than you. Thisshift from the words to the writeroften occurs when the email is rid-dled with grammatical and typo-graphical errors. Unfortunately, it’s those errors that will likely beremembered long after the messagematters.

Finally, make sure you saywhat you mean and mean what you say. Consider this actual email:

Your food stamps will be stoppedeffective March 1992 because wereceived notice that you passed away. May God Bless You. You mayreapply if there is a change in your circumstances.

Department of Social ServicesGreenville, South Carolina5

While this is an extreme exam-ple of a message gone wrong, mis-takes are made all the time, espe-cially when a document is writtenhastily. While business – and life –may be moving at breakneck speed,the time taken to correct emailerrors later likely will far exceed the time taken to get it right the first time the email is sent. It pays to pause and count to three (or longer) before clicking on“Send.” �1. For more on inadvertent disclosure, see John

T. Hundley, “Waiver of Evidentiary Privilegeby Inadvertent Disclosure – State Law,” 51 A.L.R. 5th 603 (1997).

2. Saved for another day and another column are the legal effects of email disclaimers. If youare particularly concerned about the sensitivenature of your email or letter attached to anemail, consider encrypting confidential client-related email. Multiple encryption services are available at sites such as Hushmail.comand ZipLip.com as well as the well-knowncompanies like software.dell.com and business.att.com. Further, remember that once you push the “Send” button, you havemore than likely officially lost control of theinformation in the email, although someemails may be recalled quickly if the email was sent to an address on the same server as where the email originated. See, e.g.,www.jafaloo.com/recall-an-email-in-gmail.

3. Debra Cassens Weiss, “Did Lawyer’s EmailGoof Land $1B Settlement on NYT’s FrontPage?” (Feb. 6, 2008), www.abajournal.com/news/article/lawyers_e_mail_goof_lands_on_nyts_front_page.

4. Melinda Ligos, “The Awkward Rite ofSummer: Hear the One About the Intern …”The New York Times (July 6, 2003),www.nytimes.com/2003/07/06/jobs/the-awkward-rite-of-summer-hear-the-one-about-the-intern.html.

5. www.lifeawarenesscenter.com/lighterside.html(last visited Aug. 30, 2014).

EMAIL COMMUNICATIONS continued from page 27


RG 10.14_RG 09.05 10/28/14 3:33 PM

Email checklist• Is the information appropriate for an email commu-nication?

• Is your relationship with the recipient one where a letter or memo format would be more appropriate?

• Have you addressed the email to the appropriateparty and only to the person(s) intended?

• Is your subject line specific and concise?

• Have you included any attachments referred to in the email?

• Have you introduced the purpose of the email in the introduction and summarized what you arewriting about?

• For better readability have you focused on usingshort, concise sentences and breaking paragraphs with double spaces?

• Have you summarized key points at the end of the email and reiterated any actions you are

requesting of the recipient, ideally as bulleted pointsfor emphasis?

• Have you avoided e-acronyms (e.g., BTW) andemoticons (e.g.,) as well as anything that may beconsidered overly familiar?

• Have you omitted jokes, slang and offensive language, knowing this email may be shared with others and introduced as evidence in court?

• Do you feel comfortable about the content of youremail – that you have said everything you wanted tosay and nothing more; that you have said everythingin a way that your recipient will readily understand;and that you have spent the necessary time to makesure it is presented in a professional manner, free ofgrammatical and typographical errors?

• Have you provided your contact information foryour recipient, ideally as part of a signature block?

• Have you included a confidentiality disclaimer whereappropriate (and ideally at the beginning rather thanthe end)? – Prof. Deborah McGregor @IUMcKinney

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RG 10.14_RG 09.05 10/28/14 3:33 PM

In June, the Indiana SupremeCourt issued opinions in fourcivil cases, summarized below,

and a Published Order DenyingPetition to Transfer in the caseLuttrell v. Lutrell, 994 N.E.2d 298(Ind. Ct. App. 2013). The SupremeCourt also granted transfer in onecivil matter, which is summarizedbelow. The Indiana Court ofAppeals issued a total of 68 opin-ions in civil and administrativematters, 37 of which were unpub-lished opinions. Three of the Courtof Appeals published decisions are summarized below. Full text of all Indiana appellate court deci-sions rendered during the month of June, including those issued not-for-publication, are availablevia Casemaker at www.inbar.orgor the Indiana Courts website,www.in.gov/judiciary/opinions.

INDIANASUPREME COURT CASES

Baseball field patronwho was warned of the danger of foul balls precluded frombringing premisesliability, negligenceclaims

Plaintiff DeJesuswas hit in the face with a foul ball whileattending a minor-league baseball game.South Shore Baseball,LLC d/b/a Gary SouthShore RailCats andNorthwest SportsVenture, LLC v.DeJesus, 11 N.E.3d 903(June 27) (Massa, J.).As a result, DeJesussuffered several frac-tured facial bones and permanent blind-ness in her left eye.

She sued South Shore Baseball andthe Steelyard for premises liability,alleging that they breached theirduty to her by failing to extend theprotective netting far enough alongthe foul ball lines. She also claimedthat the defendants were negligentin the design, construction andmaintenance of the ballpark by fail-ing to provide sufficient protectivescreening. Defendants filed amotion for summary judgment,which the trial court denied. Thetrial court then certified the orderfor discretionary interlocutoryappeal, and the Court of Appealsaccepted jurisdiction. On appeal,the Court of Appeals reversed thetrial court’s order, determining that there was no genuine issue ofmaterial fact as to either DeJesus’premises liability claim or her negligence claim. On transfer, theIndiana Supreme Court also deter-mined that the trial court erred in failing to grant the defendant’smotion for summary judgment.

The Indianapolis Indians filedan amicus curiae brief, requestingthe Supreme Court to adopt the“Baseball Rule” adopted by manyother jurisdictions, which providesthat a ballpark operator satisfies hisduty of reasonable care to specta-tors by providing screened seats inthe grandstand and giving plaintiffthe opportunity of occupying oneof those seats. The Supreme Courtdeclined to adopt this rule, noting,“we are not convinced any sport,even our national pastime, meritsits own special rule of liability.” Inaddition, the Court noted that thelegislative branch is entrusted withdecisions of public policy should it decide to adopt the Baseball Rulein a statutory form as many otherstate legislatures have done.

Nonetheless, the Court con-cluded that DeJesus’ premises liability claim failed because SouthShore had notified her of the

danger of foul balls by printing a warning on her ticket, posting asign in the aisle near her seat, andmaking an announcement over the loudspeaker before the begin-ning of the game. For strict liabilityto ensue, the landowner must haveexpected that the invitee would notdiscover or realize the danger orwould fail to protect himself/herselfagainst it. Based on South Shore’sefforts to warn DeJesus of the danger of foul balls, it would haveno reason to believe that DeJesuswould not realize the danger or that she would not protect herselfagainst it.

The Court also found thatdefendants were entitled to sum-mary judgment on DeJesus’ negli-gence claim because she did notallege an increased risk of harm and could not establish reliance.Indiana has adopted the rule laiddown in the Restatement (Third) of Torts: Physical and EmotionalHarm §42 (2012), which providesthat an actor who undertakes torender services to another and whoknows or should know that the ser-vices will reduce the risk of physicalharm to the other has a duty of rea-sonable care to the other in con-ducting the undertaking if (a) thefailure to exercise such care increas-es the risk of harm beyond thatwhich existed without the under-taking, or (b) the person to whomthe services are rendered or anotherrelies on the actor’s exercising rea-sonable care in the undertaking.DeJesus testified in her depositionthat she had seen foul balls enterthe stands at baseball games beforeand knew there was a chance that afoul ball could come her way. As aresult, the evidence showed thatDeJesus was not relying on the net-ting to protect her from the dangerof foul balls, entitling the defen-dants to summary judgment.

RECENT DECISIONS 6/14

Appellate civil case law updateBy Kathy L. Osborn and Sarah C. Jenkins


Sarah C. JenkinsFaegre Baker Daniels LLP


Kathy L. OsbornFaegre Baker Daniels LLP


RG 10.14_RG 09.05 10/28/14 3:33 PM

An award of treble damagesunder Indiana’s SalesRepresentative Act is not subject to Punitive DamagesAct’s ‘clear and convincing’ evidentiary standard or diversion of three-quarters of the award to the State

In Andrews v. Mor/Ryde,International, Inc., the SupremeCourt simultaneously grantedtransfer and held that treble dam-ages awarded under Indiana’s SalesRepresentative Act are not subjectto the Punitive Damages Act. 10 N.E.3d 502 (June 19) (Rush, J.).After Mor/Ryde terminatedAndrews’ sales representative con-tract, Andrews sued Mor/Ryde forunpaid commissions pursuant tothe Indiana Sales RepresentativeAct codified at Indiana CodeSection 24-4-7. The Sales

Representative Act requires certainbusinesses to pay their commis-sioned wholesale sales agents allaccrued commissions within 14days of terminating the principal-agent relationship. A principal whofails in bad faith to comply with theact “shall be liable [ ] for exemplarydamages in an amount no morethan three (3) times the sum of the commissions owed to the salesrepresentative.” Ind. Code §24-4-7-5(b).

Mor/Ryde moved the trialcourt to hold that “exemplary damages” under the SalesRepresentative Act are subject to Indiana’s statutory restrictionson awards of “punitive damages”under Indiana Code Sections 34-51-3-2 and -6, which require proofby “clear and convincing evidence”and diversion of three-quarters ofthe award to the State. The trial

court agreed with Mor/Ryde thatthe punitive-damage restrictionsapplied, and the Court of Appealsaffirmed in a divided opinion.

On transfer, the SupremeCourt reversed, relying on its hold-ing in Obremski v. Henderson, 497N.E.2d 909, 911 (Ind. 1986), inwhich it held that a similar treble-damage award under the victim ofcrimes statute was not limited bythe Punitive Damages Act. As inObremski, the Court determinedthat the Legislature enacted theSales Representative Act to increasethe recovery from what the com-mon law would otherwise permit,whereas the Punitive Damages Acttargets the type of discretionary,open-ended punitive damageawards available at common law.Thus, the Court found it “highly


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unlikely that the Legislature wouldexpand a remedy with one hand(the Sales Representative Act or the Crime Victims Relief Act),while restricting it with the other(the Punitive Damages Act).” The Court also found it telling thatthe Legislature did not abolish itsdistinction announced in Obremskibetween common law and statutorydamage awards as part of its 1995amendments to the PunitiveDamages Act.

The Fraudulent ConcealmentStatute may toll the WrongfulDeath Statute’s two-year statute of repose

In a matter of first impression,the Supreme Court held that theFraudulent Concealment Statutemay toll the two-year filing periodfor a wrongful-death action if a plaintiff makes the necessary factual showing. Alldredge v. Good

Samaritan Home, Inc., 9 N.E.3d1257 (June 3) (Massa, J.). This casecentered on the wrongful death of Venita Hargis, who was living at the Good Samaritan Home inNovember 2006. On Nov. 17, a nurse called Hargis’ daughter andtold her that Hargis had suffered a fall. On Nov. 26, Hargis died as a result of the head injury she sus-tained in the alleged fall. Nearlythree years later, a former employeeof Good Samaritan told one ofHargis’ daughters that the headinjury actually had been caused byanother resident attacking Hargisand pushing her to the floor.

Hargis’ family opened an estatefor Hargis in December 2010 topursue a wrongful death action,alleging that Good Samaritan negli-gently caused Hargis’ death andthen fraudulently concealed its neg-ligence. Good Samaritan moved todismiss, arguing that plaintiffs were

barred from recovery for failure to file their action within two yearsof Hargis’ death as required by the Wrongful Death Act. The trialcourt granted Good Samaritan’smotion to dismiss, and the Court of Appeals reversed in part, holdingthat the plaintiffs had two yearsfrom the discovery date to file theircomplaint but that the FraudulentConcealment Statute did not apply.

On transfer, the SupremeCourt reversed the trial court’sgrant of summary judgment andremanded. The Court held thatwhen a plaintiff can prove that the Fraudulent Concealment Actapplies, it will effectively move thedate on which the statute of limita-tions begins to run from the date of the alleged tort to the discoverydate. In most instances, this meansthat the availing party will need to demonstrate affirmative acts ofconcealment calculated to misleadand hinder the plaintiff fromobtaining information by the use of ordinary diligence, or to preventinquiry or elude investigation.However, in instances where theparties are in a fiduciary relation-ship such that the defendant had a duty to disclose the existence of the claim to the plaintiff, theconcealment need not be active. In coming to this conclusion, theCourt relied in large part on publicpolicy considerations and a concernfor incentivizing fraud, whichwould thwart the purpose of theFraudulent Concealment Statute.

The plain language of an uninsured motorist policy did not provide coverage for property damage when there was no bodily injury

Under the plain and unam-biguous language of the policy, anuninsured motorist policy did notprovide coverage for an uninjuredinsured involved in a hit-and-runaccident. Robinson v. Erie Ins.

RECENT DECISIONS 6/14 continued from page 31


RG 10.14_RG 09.05 10/28/14 3:33 PM

Exchange, 9 N.E.3d 673 (June 10)(Dickson, C.J.). The Robinsons hadobtained a family auto insurancepolicy from Erie InsuranceExchange to cover a 1998 NissanAltima. The Nissan was declared atotal loss after a Jeep ran a red light,struck the car, and left the scene ofthe accident. Bryan Robinson, whohad been driving the Nissan, wasuninjured. Erie denied coverage of the vehicular damage under itsuninsured motorist policy, and theRobinsons filed a complaint. Eriefiled a motion for summary judg-ment, which the trial court granted.On appeal, the Court of Appealsreversed, and the Supreme Courtgranted transfer.

The Court considered Erie’spolicy, which promised to “paydamages for bodily injury andproperty damage that the law enti-tles ‘anyone we protect’ or the legalrepresentative of ‘anyone we pro-tect’ to recover from the owner oroperator of an ‘uninsured motorvehicle’ or ‘underinsured motorvehicle.’” The policy then defined“uninsured motor vehicle” tomean, in part:

a hit-and-run “motor vehicle.” The vehicle must cause bodily injuryto “you” by hitting “you,” an “autowe insure” or a vehicle “you” areoccupying.” The identity of the dri-ver and owner of the hit-and-runvehicle must be unknown ... .

The Court found that Erie’spolicy provisions were not ambigu-ous. It determined that under thesefacts, where there was no resultingbodily injury, the Erie policy didnot provide any uninsured motoristcoverage relative to the hit-and-run Jeep that struck the Robinsons’vehicle. “In the context of a hit-and-run driver causing an accident,the availability of uninsuredmotorists coverage (which dependson whether the other vehicle fitsone of the three Erie policy mean-ings for ‘uninsured motor vehicle’)

is solely determined by the thirdmeaning, which expressly includesa ‘hit-and-run motor vehicle’whose driver and owner areunknown, but only if the othervehicle causes bodily injury to theinsured.”

INDIANA SUPREME COURTTRANSFER GRANTS

The Indiana Supreme Courtgranted transfer in one civil case in June.

In Re the Adoption of J.T.D. & J.S., 5 N.E.3d 786 (Ind. Ct. App.2014) (addressing whether the pro-bate court had exclusive jurisdic-tion over all adoption proceedingspreventing transfer to the JuvenileCourt where a termination ofparental rights proceeding waspending).

SELECT INDIANA COURT OF APPEALS CASES

Six-year statute of limitationsfor breach of promissory notebegins to run from date creditor exercises its option to accelerate due date for the balance of the loan

A bank’s repossession of collat-eral was an affirmative act thataccelerated the final maturity of a debt and triggered the six-yearstatute of limitations. Imbody v.Fifth Third Bank , 12 N.E.3d 943(June 27) (Najam, J.). Imbodyobtained a loan from Fifth Third to purchase a Chevrolet Trailblazer.The loan agreement provided that,in the event of default, Fifth Thirdhad the option “to accelerate with-out notice or demand the finalmaturity of all the obligationssecured.” When Imbody defaultedon the loan in May 2006, FifthThird repossessed and sold thetruck, leaving a deficiency balanceof $14,896.32 on the debt. Imbodyagreed to pay Fifth Third $100 permonth toward the debt, but only

made 14 of those payments withthe final payment made on Feb. 29,2008. Fifth Third filed a complaintagainst Imbody in June 2012. Thetrial court entered judgment infavor of Fifth Third, and Imbodyfiled a motion to correct error,arguing that Fifth Third’s com-plaint was time-barred under the six-year statute of limitationsapplicable to written contracts for the payment of money.

On appeal, the Court ofAppeals found that when an install-ment contract contains an optionalacceleration clause, by which thecreditor may declare all install-ments on the loan immediately due and payable after default, thestatute of limitations to collect theentire debt does not begin to runimmediately on the debtor’s defaultbut only when the creditor exercisesits option to accelerate. Here, FifthThird took an affirmative act tomake it clear to the debtor that ithad accelerated the obligation byrepossessing the debtor’s truck inMay 2006. Therefore, the six-yearstatute of limitations began to runwhen Fifth Third repossessed thetruck, not when the borrower madehis last payment on the deficiencybalance. Because Fifth Third failedto file its complaint within the six-year time period, the trial courtshould have entered judgment in favor of Imbody.

Account holder required to reimburse bank that lost deposited check for shortage in account

The case of Sapp v. FlagstarBank involved an overdrawnaccount and a lost check. 12 N.E.3d913 (June 26) (Baker, J.).* In 2005Sapp opened an account withFlagstar in the name of his family’slimited liability company. Sapp, the sole signatory on the account,



RG 10.14_RG 09.05 10/28/14 3:33 PM

initially deposited $560.63 in theaccount in August 2005. Shortlythereafter, Sapp also deposited acheck in the amount of $125,000.Sapp received a receipt notifyinghim that all deposits/paymentswere subject to proof, but he wasgiven provisional credit for thedeposit consistent with the terms of his account agreement with thebank. Flagstar lost the check, and its representatives contacted Sapp,asking for his assistance in identify-ing the maker of the check.Ultimately, Sapp was unable toidentify the remitter or the bankthat purportedly issued the check.Sixteen days after depositing the$125,000 check, Sapp wrote a checkfrom the Flagstar account for$100,000. Afterward, he also madevarious other payments from theaccount. As a result, when Flagstardebited Sapp’s account for theunrecovered $125,000, it was only able to recover $1,965.37.

Flagstar sued Sapp to recoverthe shortage, alleging breach ofcontract, theft and unjust enrich-ment. The trial court initially grant-ed summary judgment in favor ofFlagstar on all claims. A prior panelof the Court of Appeals held thatthe trial court erred in enteringsummary judgment on the breachof contract case but affirmed sum-mary judgment on the remainingtwo claims. After remand and following a bench trial, the trialcourt entered judgment in favor ofFlagstar on its breach of contractclaim, awarding Flagstar the short-age from Sapp’s overdrawn accountas well as the bank’s attorney feesand costs incurred in the litigation.

On appeal, Sapp argued thatthe trial court erred in not findingFlagstar negligent for losing thecheck. The Court of Appeals dis-agreed, finding that it was incum-bent on Sapp to prove negligence,which he failed to do. Sapp also



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claimed that the trial court erred in holding him personally liable forthe shortage in the account. Theparties’ account agreement statedthat the account holder “agreed tobe jointly and severally liable forany account shortage resultingfrom charges or overdrafts, whethercaused by you or another withaccess to this account.” BecauseSapp was the only signatory on theaccount, he was personally liablefor any account shortage resultingfrom charges or overdrafts, causedby him or another.

Next, Sapp claimed that thetrial court erred in determining thatFlagstar preserved its ability to per-form a charge back to the accountbecause it had waited too long tonotify him of the lost check underthe parties’ agreement and underthe Uniform Commercial Code(“UCC”). The account statementclearly provided that the bank pre-served the right to charge back to the account, stating: “Pleaseremember that even after we havemade funds available to you, andyou have withdrawn the funds, youare still responsible for checks youdeposit that are returned to usunpaid and for any other problemsinvolving your deposit.” As to theUCC, it provides, in part, that “[i]fthe return or notice is delayedbeyond the bank’s midnight dead-line or a longer reasonable timeafter it learns the facts, the bankmay revoke the settlement, chargeback the credit, or obtain refundfrom its customer, but it is liablefor any loss resulting from thedelay.” Ind. Code §26-1-4-214(a).In construing this provision thecourt determined there was nothingwithin the statute prohibitingFlagstar from revoking the provi-sional credit. Instead, it specificallypermits Flagstar to revoke the credit after the midnight deadlineso long as the item received by the


RG 10.14_RG 09.05 10/28/14 3:33 PM

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bank was not finally settled. Lastly,the court held that the trial courtproperly awarded Flagstar its attor-ney fees and costs pursuant to theparties’ contract, and it remandedthe case for the trial court to deter-mine the proper amount of appel-late attorney fees that should beawarded to Flagstar.

Transfer on Death Property Actmay apply retroactively to promissory notes

The Transfer on DeathProperty Act may apply to promis-sory notes executed prior to theAct’s enactment. In re Estate ofRupley, 12 N.E.3d 900 (June 25)(May, J.; Riley, J., concurring in

part and dissenting with separateopinion). Charles Rupley borrowed$2,500 from Ruth Rupley in March2006. Around the same timeCharles and Ruth executed apromissory note that said it waspayable to Charles upon Ruth’sdeath. Ruth died in October 2008.In October 2012 the personal repre-sentative filed a petition requestinginstructions as to whether the notebalance transferred to Charles atRuth’s death, was an asset of Ruth’sestate or was forgiven by Ruth uponher death. The trial court issued anorder directing the personal repre-sentative to include the note as anasset of Ruth’s estate. On appeal,the Court of Appeals held that theTransfer on Death Property Actclearly indicates that it appliesretroactively to a “transfer on deathsecurity, transfer on death securitiesaccount, and pay on death accountcreated before July 1, 2009.” Thecourt determined that the note wasa pay on death account and there-fore retroactively subject to theTransfer on Death Property Act.Because the note met the statutoryrequirements of a pay on deathaccount, it should have transferreddirectly to Charles upon Ruth’sdeath, and the trial court erred inconcluding that the note was anasset of Ruth’s estate. Judge Rileyconcurred in part and dissented inpart, stating that the note could notbe both a promissory note and apayment on death account underthe Act. Nonetheless, she concludedthat the trial court erred in con-cluding that the note was an asset of the estate because the note fellwithin the purview of Indiana CodeSection 32-17-11-28(1), causing itto become a non-testamentaryasset. �* Asterisked cases indicate those in whichone of the authors, or other members ofthe authors’ firm, Faegre Baker DanielsLLP, represented one or more of the parties or amici.



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Kathy L. Osborn, Indianapolis, is a part-ner at Faegre Baker Daniels and practicesin the areas of business, antitrust andappellate litigation. She is a three-timegraduate of Indiana University, B.S.Biology, magna cum laude, B.A.Religious Studies, summa cum laude,and J.D. with Gender Studies minor,magna cum laude. After graduatingfrom Indiana University Maurer Schoolof Law, she served as a law clerk in theIndiana Supreme Court to formerAssociate Justices Frank Sullivan Jr. and Myra C. Selby. Contact Kathy at 317/237-8261 or [email protected].

Sarah C. Jenkins, Indianapolis, is anassociate at Faegre Baker Daniels andpractices in the areas of business, probateand appellate litigation. She graduatedwith highest distinction from IndianaUniversity with degrees/majors in jour-nalism, French, political science andunderwater resource management. After graduating magna cum laude fromIndiana’s Maurer School of Law, Sarahserved as a law clerk to the Hon. JudgePaul D. Mathias on the Indiana Court of Appeals before joining the firm.Contact Sarah at 317/237-1347 or [email protected].

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As in past years, the IndianaSupreme Court issuedseveral opinions during

the month of June – the last monthof its fiscal year. The Court issuedopinions on a variety of issues,including Indiana’s resisting lawenforcement and public intoxica-tion statutes, prosecutorial miscon-duct, sentencing considerations for juveniles and consent to homeentry.

Resisting law enforcement –order to stop must be based on reasonable suspicion

To avoid conflict with theFourth Amendment, the IndianaSupreme Court in Gaddie v. State,10 N.E.3d 1249 (Ind. 2014), unani-mously held that a person cannotbe prosecuted for resisting lawenforcement by fleeing under Ind.Code §35-44.1-3-1(a)(3) unless the officer has, at a minimum, thereasonable suspicion necessary toconduct a Terry stop. In this case, a police officer responded to a “dis-turbance” at a residence and uponarriving attempted to “corral”everyone in the front yard in orderto watch them until backup arrived.Id. at 1252. Keion Gaddie ignoredthe officer’s order and walked awayfrom the residence and the officer.The officer radioed for help, andeventually another officer inter-cepted Gaddie, who was arrestedand charged with resisting lawenforcement by fleeing. Id.

A statute that criminalizeswalking away from a police officerwho, without reasonable suspicionor probable cause, has ordered theperson to stop would violate long-standing Fourth Amendment prin-ciples and the “well-establishedfreedom to walk away.” Id. at 1254.The language of the resisting lawenforcement statute does notrequire that a police officer’s orderto stop be lawful, but the Courtprefers to construe the statute

in a manner that does not violatethe Constitution. As such, it heldthe statutory element “after theofficer has ... ordered the person to stop” must be understood torequire that such order to stop reston probable cause or reasonablesuspicion that criminal activity isafoot. Id. at 1255. Because the offi-cers in this case lacked the reason-able suspicion necessary to conductan investigatory stop of Gaddie, theevidence was insufficient to convicthim of resisting law enforcement by flight. Cf. Murdock v. State, 10N.E.3d 1265 (Ind. 2014) (under thestatutory interpretation announcedin Gaddie, evidence was sufficientto establish reasonable suspicionfor a police officer to order thedefendant to stop).

Public intoxication – sufficientproof of endangerment

To support a conviction underIndiana’s amended public intoxica-tion statute, the State must provebeyond a reasonable doubt that thedefendant, while in a public place,endangered either himself or oth-ers, breached or was in imminentdanger of breaching the peace, or harassed, annoyed or alarmedanother person. See Ind. Code 7.1-5-1-3(a). In Thang v. State, 10 N.E.3d 1256 (Ind. 2014), a 3-2majority of the Indiana SupremeCourt found sufficient circumstan-tial evidence that Tin Thang endan-gered himself or others. When a police officer came out of therestroom at a gas station while onpatrol, the cashier alerted him thatThang might be intoxicated. Thangwas unsteady, smelled of alcoholand had bloodshot eyes. The officeralso saw a car in the parking lot thatwas not there before and keys inThang’s hands. No one else waspresent at the gas station. Id. at1257.

Chief Justice Dickson’s majori-ty opinion drew a distinctionbetween the element of “endanger-ment” in the public intoxicationstatute and the similar element inthe Class A misdemeanor operatingwhile intoxicated (OWI) statute.Factfinders are generally allowed to draw reasonable inferences fromthe evidence. But after the 2001amendment to the OWI statute, the State is required to submit addi-tional evidence of “endangerment”beyond mere intoxication to sup-port a Class A misdemeanor OWIconviction. See Outlaw v. State, 929N.E.2d 196 (Ind. 2010). The major-ity in Thang declined to apply thesame reasoning to the amendedpublic intoxication statute; there-fore, the general rule that factfind-ers may draw reasonable inferencesfrom the evidence permitted thefactfinder here to infer that Thangendangered himself or another bydriving to the gas station while hewas intoxicated. Thang v. State, 10N.E.3d at 1259. Justice David, in adissenting opinion joined by JusticeRucker, expressed his belief that thelegislature distinguished between“intoxication” and “endangerment”and that there was no evidence tosupport an inference that Thangdrove in a manner that endangeredanyone. Id. at 1262-64.

Reversal not warranted for prosecutorial misconduct

During the prosecu-tor’s closing argument in Bruce Ryan’s jury trialfor Class C felony sexualmisconduct with a minorcharges, she made multi-ple comments that Ryanclaimed to be misconductbut were not objected toat trial. First, the prosecu-tor stated: “I want to bereally clear, we are here

CRIMINAL JU

STICE N

OTES 6/14

Public intoxication, juvenile sentences, other holdingsBy Jack Kenney

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



RG 10.14_RG 09.05 10/28/14 3:33 PM

because everyone has a right tohave a jury trial. We’re not herebecause he didn’t do it; we’re herebecause he wants to get away withit. So don’t let him, thank you.”Ryan v. State, 9 N.E.3d 663, 668(Ind. 2014). The Supreme Courtrejected Ryan’s argument that thiscomment negatively implicated theexercise of his right to a jury trial.Second, the prosecutor argued thatthe defense argument is “how guiltypeople walk” and “a classic defenseattorney trick.” Id. at 669. Althoughthe Court found these commentsviolated the Rules of ProfessionalConduct, they did not place Ryanin a position of grave peril and assuch did not constitute miscon-duct. Id. at 670. Finally, the prose-cutor asked the jury to look at the“bigger picture” and told them thatthey are in “an incredible positionto stop” this type of criminalbehavior and “send the message

that we’re not going to allow peopleto do this.” Id. at 671. This clearlyinvited the jury to convict for rea-sons other than guilt and constitut-ed improper conduct. However, the comments did not constitutefundamental error because they didnot have “an undeniable and sub-stantial effect on the jury’s deci-sion” that made a fair trial impossi-ble. Id. at 672.

In contrast, the Court ofAppeals found fundamental errorin a different case involving thesame Marion County prosecutor inan opinion handed down the daybefore Ryan was decided. Brummettv. State, 10 N.E.3d 78 (Ind. Ct. App.2014), was a child molesting andsexual misconduct with a minorprosecution that hinged largely on the credibility of witnesses. The prosecutor improperly distin-guished the roles of the prosecutionand defense, vouched for the

credibility of the witnesses and the justness of the cause, and askedargumentative and inflammatoryquestions. As in Ryan, the prosecu-tor’s comments “impugned theintegrity of defense counsel anddemeaned the role of defense coun-sel,” and the court reversed andremanded for a new trial becausethe cumulative effect of the miscon-duct placed Brummett in graveperil, making a fair trial impossible.Id. at 85-86, 88.

Appellate review of juvenile sentences

In Brown v. State, 10 N.E.3d 1(Ind. 2014), and Fuller v. State, 9N.E.3d 653 (Ind. 2014), companioncases handed down the same day,the Indiana Supreme Court signifi-cantly reduced the 150-year sen-tences for two juveniles who wereconvicted of two counts of murderand one count of robbery. TheCourt reduced the maximum sentences to 80 years for Brown,who was 16 years old at the time of the incident, and 85 years for 15-year-old Fuller. In the decision,the Court followed United StatesSupreme Court cases that have laidthe roadmap for age as a considera-tion in sentencing – “that juvenilesare less culpable than adults andtherefore are less deserving of themost significant punishments.”Brown v. State, 10 N.E.3d at 7 (citing Graham v. Florida, 560 U.S. 48, 68 (2010)).

The Court noted that juvenileshave a “lack of maturity and anunderdeveloped sense of responsi-bility,” based in part on the factthat important areas of their brainsare not yet fully developed. Second,they are more susceptible to nega-tive pressure from others and haveless ability to “extricate themselvesfrom horrific, crime-producing settings.” Id. (quoting Miller v.Alabama, 132 S.Ct. 2455, 2464(2012)). Finally, their character

CRIMINAL JUSTICE NOTES 6/14 continued from page 39


RG 10.14_RG 09.05 10/28/14 3:33 PM

is not as well formed as adults, andbad acts are less likely to be basedon “irretrievable depravity.” Id.

Brown also had a history ofalcohol and marijuana use since theage of 10, which does not necessari-ly indicate bad character. Id. at 6(citing Chief Justice Roberts’ con-curring opinion in Graham, regard-ing the mitigating nature of a child-hood that led to early drug andalcohol use). To give the maximumsentence for these youthful offend-ers “forswears altogether the reha-bilitative ideal.” Id. at 8 (citationsomitted). It “means [a] denial ofhope … that good behavior andcharacter improvement are imma-terial; it means that whatever thefuture might hold in store for themind and spirit of the [juvenile]convict, he will remain in prisonthe rest of his days.” Id.

Valid consent to search despitethreat of removal of child

“If police imply that the defen-dant has no right to resist a search,any purported ‘consent’ will befound invalid. Such coercion maybe implied by what police say.” SeeMcIlquham v. State, 10 N.E.3d 506,511 (Ind. 2014). Even consideringthe undisputed facts that favorMcIlquham, the Indiana SupremeCourt found no coercive words or actions to invalidate the consen-sual police entry of his home.McIlquham’s toddler was foundunsupervised and half-naked won-dering around a retention pond.McIlquham arrived after the police had already found the child.McIlquham approached the police,who told him that they “wouldprobably end up getting ahold of CPS” and that they “needed to come back to [McIlquham’s]apartment” to verify safe livingconditions. Id. at 512. McIlquhamwalked back to his apartment withthe police, opened the door forthem, and “immediately made

a bee line for the kitchen,” in whichhe started making furtive move-ments. Id. at 509. Police pattedMcIlquham down and found mari-juana. Later, the toddler’s mothersigned a consent for the police tosearch the home, resulting in thediscovery of more marijuana and agun. The Court found “little practi-cal difference” between police col-loquially stating that they “neededto come back to McIlquham’sapartment” and asking whetherthey may do so. Id. at 512. As such,McIlquham’s consent was not amere acquiescence to authority.Thus, McIlquham consented bywords and actions to the policeentering his home, and his furtivemovements inside the home justi-fied the pat-down for officer safety.Id. at 513.

Inaccurate translation of rightsinvalidated guilty plea

Before entering into a guiltyplea, the defendant must be advised of his right to trial by jury, confrontation and right againstself-incrimination. See Boykin v.Alabama, 395 U.S. 238 (1969). In Ponce v. State, 9 N.E.3d 1265(Ind. 2014), Victor Ponce’s guiltyplea to two counts of deliveringcocaine was not knowing, intelli-gent and voluntary because theSpanish translation of his Boykinrights was inaccurate and “whollyinadequate.” It did not matter that Ponce said he understood thetranslated advisements because thisestablishes only that he understoodan inaccurate translation of hisrights. A person “‘may fully under-stand and even acknowledge to oth-ers an understanding of what is inactuality an inaccurate interpreta-tion of the proceedings. Put anoth-er way, one can understand perfect-ly the words spoken by an inter-preter who tells you the wrongthing.’” Id. at 1271 (quoting Diaz v. State, 934 N.E.2d 1089, 1095(Ind. 2010)). �


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We have known for yearsthat the benefits of regu-lar physical activity to

help prevent major health diseasesare clear and unanimous. Rarely do you visit your doctor and leavewithout them saying: “You ought to exercise more and eat better; that will help you maintain and/orimprove your overall health.”Current public health guidelines are promoting at least 150 minutesper week of moderate- to vigorous-intensity physical activity in orderto be healthy. As of 2012 Indianaranks 41st in health indicators(obesity, smoking, diabetes, seden-tary lifestyle combined) comparedto our fellow states. We have somework to do! In order to improveour overall state statistics and helpourselves be healthier, we need to consider moving more at workand during our leisure time.

Recent studies have suggestedthat prolonged bouts of sitting timeand lack of whole-body muscularmovement are strongly associatedwith obesity, abnormal glucosemetabolism, diabetes, metabolicsyndrome, cardiovascular diseaserisk and cancer as well as total mortality independent of moderate-to vigorous-intensity physical activ-ity. This may come as a surprise to many exercisers that either run

in the morning beforework or take a noonwalk. A possible newparadigm of inactivityphysiology has beenproven by manyresearchers. This new way of think-ing emphasizes the distinction betweennot exercising and thehealth consequencesof sedentary behaviorthat is limiting every-day-life non-exerciseactivity. Until now, theexpression “sedentary

behavior” has misleadingly beenused as a synonym for not exercis-ing. Sedentary time should bedefined as muscular inactivityrather than the absence of exercise.

This new paradigm of inactivi-ty physiology or sitting time isbased on four issues:

1. Sitting and limiting non-exer-cise activity independently increasedisease risk.

2. Sedentary behavior (notchoosing to exercise) is another risk factor.

3. The molecular and physiolog-ical response in the body of toomuch sitting is not always the sameas the response that follows a boutof additional physical activity.

4. If you are already insuffi-ciently physically active you couldincrease your risk even further with prolonged sitting.

The solution to this dilemmafor many is to look at your sittingtime whether you exercise or notand try to reduce it. If you reduce

your sitting time you will be health-ier overall – this is what the new“inactivity physiology” research is touting.

What kinds of things could you do to reduce sitting time?

1.Have a walking meeting versus a sit-down meeting.

2. Encourage standing at workversus sitting by looking into stand-ing desks and/or stand at your nextmeeting occasionally.

3. Climb the stairs versus takethe elevator.

4.Walk to a restroom that isfarther from your office than justdown the hall.

5. Perform 5-10 sit-to-standmovements at your desk per hourto reduce sitting time and increaseblood flow in your lower body.

6.Walk to deliver a messagewithin your office versus sending it via email.

7.Walk/pace while you are having a phone conversation inyour office.

FIT TO PRACTICE

Inactivity physiology – too much sitting time?By Carol Kennedy-Armbruster, Ph.D.


Carol Kennedy-Armbruster, Ph.D.

Senior LecturerIndiana University

School of Public HealthDepartment of Kinesiology

Bloomington, [email protected]

Consider a walking meeting with (L-R) Julia L. Orzeske, executivedirector of the Indiana Commission for CLE; Terry L. Harrell, executivedirector of Indiana JLAP; and Supreme Court Justice Steven H. David.

RG 10.14_RG 09.05 10/28/14 3:33 PM

Some have touted this lack ofmovement in our day (inactivityphysiology) as a health risk thatcould be as great as smoking:http://pittsburghquarterly.com/index.php/Personal-health/is-sitting-the-new-smoking.html. If you Google juststand.org, youwill find even more information on how sitting time is not onlydetrimental to our health; but wealso DON’T LIKE IT! So, why dowe sit so much? Is it because the“norm” is to sit at work? Over thelast 40 years we have replaced muchof our daily movement with eithertechnology and/or devices. Thinkabout it – when was the last timeyou:

• opened your garage door by hand?

• raked your leaves using a realrake and not a blower?

• mowed your lawn using amower that was not self-propelled?

• opened a can using a regularcan opener?

• drove around a parking lot to find the closest space?

• shopped online versus going to the mall because it was easier?

These are just a few examplesof ways we have replaced dailymovement with activities that areless intense and require less musclemovement. It’s no wonder we arediscussing “inactivity physiology”as a health risk factor. Awareness isthe first factor in tackling a healthrisk; look around and see what youcan do to “move more, sit less andbe well!” �

Annual Report shows nearly 1,000cases considered by Supreme Court

The Supreme Court annual report (July 1, 2013 - June 30,2014) is now available. The report provides information

about the work of the Court and its affiliated agencies. ChiefJustice Loretta H. Rush explained, “The annual report providesa substantial overview of Supreme Court cases, opinions andprojects. Details are always available at courts.in.gov, but thisreport allows readers a snapshot of the breadth of work for a one-year period.” Read the report at courts.in.gov/supreme/files/1314report.pdf.

During the fiscal year, the Court was asked to review 995cases. The five justices –Loretta H. Rush, Brent E. Dickson,Robert D. Rucker, Steven H. David and Mark S. Massa – readthousands of pages of briefs to determine which cases to granttransfer (accept as a Supreme Court case). Other reported statistics include:

• 94 majority opinions handed down by the Court

• 81 percent of the opinions handed down were unanimous (5-0 or 4-0)

• 80 oral arguments were heard

Details on each of the Supreme Court agencies are alsoavailable in the report. Photographs taken throughout the yearshow the Court’s interaction with students, community mem-bers and the press. Narratives in the report from variousSupreme Court agencies showcase the following:

• The Odyssey case management system will soon be used by the Supreme Court.

• Case data from 1.6 million new trial court cases was collected.

• 102 hours of instruction were provided to judgesstatewide.

• 584 of 823 applicants passed the Indiana Bar Exam.

• A new version of the mediator registry launched (1,291 mediators online).

• 81 final orders were issued in attorney discipline cases.

• One case included formal discipline of a judge.

• Health issues that impact senior lawyers are a focus of assistance programs.

• Public outreach included 349 tweets.

Past annual reports can be found at courts.in.gov/supreme/2484.htm. Later this year the Indiana Judicial Service Report,which details the work of the trial courts, will also be availableon the Court’s website. �


RG 10.14_RG 09.05 10/28/14 3:33 PM


CLASSIFIEDSEmail or fax your classified word ad to Susan Ferrer, [email protected] 317/266-2588. You will be billedupon publication.

EmploymentOpportunities

LITIGATION ATTORNEY: Lafayette-based law firm seeks litigation lawyerwith a minimum of 5 years’ experiencehandling medical malpractice and/orhealthcare related litigation, includingfirst chair jury experience. Sendrésumés to Karen R. Orr, Stuart &Branigin LLP, P.O. Box 1010, Lafayette,IN 47902-1010 or [email protected].

BUSINESS ATTORNEY: GrowingLafayette/Indianapolis law firm is seek-ing a business attorney to handle abroad variety of business and corporatematters at our Indianapolis office. A suc-cessful candidate should have at least 3 years of experience in business law.Interested and qualified candidatesshould email a cover letter, résumé and salary requirement to [email protected]. For more information,visit www.gutwienlaw.com.

WELL-ESTABLISHED LAW FIRM inIndianapolis is seeking an associatewith 5-10 years of experience for its civillitigation practice. Please send résuméto Ricardo Hall, [email protected].

LAFAYETTE LAW FIRM seeks legalassistant (certified or non-certified) with 5+ years’ experience in corporate/transactional/real estate. Please sendcover letter, résumé and salary require-ments to [email protected].

NORTHWEST Indiana firm seeking family law attorney: Law office withestablished practice in northwestIndiana is seeking an associate with 2-5years of family law experience. We offera competitive salary, benefits and poten-tial for growth. All inquiries will be held instrict confidence. Send your cover letter,résumé and any salary requirements by email to [email protected].

Employment Desired

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

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]

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.

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.

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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]

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]

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Clio: practice management simplified

Completely Web-based, Clio is a practice-

management system that is specifically designed forsolo practitioners and smalllaw firms. Simplify the criti-cal business components of your legal practice usingClio, which includes accu-rate time tracking, onlinebilling and invoicing, securecollaboration and commu-nication tools, businessproductivity and report-ing solutions and so muchmore. As an ISBA member,you are eligible to receive a 10 percent discount onyour subscription. Visithttp://landing.goclio.com/inbar.html to sign up today. �

RG 10.14_RG 09.05 10/28/14 3:33 PM


APPRAISALSStamp & Coin Collections

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

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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

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

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

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]

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Florida Estate Planning & Probate

BRAD A . GALBRAITH

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

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

Miscellaneous

ELDER MEDIATION: A Way to ResolveFamily Conflict, Advanced MediationTraining; Friday, Dec. 12, 2014; 9 a.m.to 4:30 p.m. Location: NASW-IndianaChapter, 1100 W. 42nd St., KrannertHall, Indianapolis, IN 46208. Lunch and refreshments included. NASW orIAM member $130; nonmember $160.Register online: www.naswin.org;phone: 317/923-9878.

OFFICE SPACE. Law firm at 235 N.Delaware St., Indianapolis, has spaceavailable to accommodate 3 attorneys inoffices measuring 13’ x 23’ each. Spacealso available for support personnel.The offices may be furnished or unfur-nished and include wireless Internet,phones and access to conference room.The cost of the receptionist would be divided among all of the attorneys.Questions may be directed to: David McClure, 317/221-0800 or [email protected].

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.

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 10.14_RG 09.05 10/28/14 3:33 PM

FAIR COMMENT CLASSIC

GleaningsBy ISBA Past President Rabb Emison

Hoosier languageMy envy is directed toward skillful wordsmiths.

We mortals try to meet the requirements of correctpunctuation and syntax, while above us whirl the stars,using expressive, invented words. The English languagecan be made up by the speaker, and the American-language user does it easily. I submit that in Indiana,Hoosiers speak in a musical and useful style. A forgot-ten word in my county is “juberous,” which probablycomes from “dubious” but implies a more likely rejec-tion of the object. A client would say, “I am juberous of that proposition.” Don’t look it up. It hasn’t beenwritten down.

Until now.

Shall we call the police?Years ago a series of murders in the city of

Evansville resulted in a prosecution that led to the U.S. Supreme Court. The killer, one winter night, disposed of the victims by placing bodies in the trunkof his car. The details are hazy in this account, but hewas reported to have driven around Evansville with hisgrisly secret.

That same night an older man, driving in traffic,failed to stop at a light and struck the car stopped in front of him. To his surprise, the driver in the car in front, after examining the slight damage to both cars, treated him very kindly. “Why call the police?” he asked. “Neither of us is hurt, and it is slight damage to our cars.”

When the older man paid him $20 for his damages, they parted, and no questions were asked.

Evansville is a city chock-full of civilized people,and the older man was struck with the hasty courtesyhe received from a stranger. He was until the followingday when a picture was published of the accused killer– the courteous stranger who suggested that the policeneed not be called.

This little tale is true. It prompts a response to“Why call the police?” The response is, “Why not?” �Email your “Fair Comment” for publication consideration to Susan J. Ferrer, editor, Res Gestae, at the Indiana State Bar Association, [email protected].


Editor’s Note: The following column first appeared inDecember of 1997. A treasured and longtime contributor to Res Gestae, Rabb Emison of Vincennes, Ind., passed away on Sept. 1, 2010.

Now and then we clean out a desk drawer or a wallet. It requires discipline, disposing ofthose little items we stowed and forgot: an

untitled memo of a case citation, a telephone numberwithout a name, a worn school photograph of a childnow – wonder of wonders – grown and gone. What todo? A collection of notes from straightening up a deskdrawer brings this humble offering.

Found in a transcriptEvery trial lawyer has the experience of preparing

the witness for testimony. A proper beginning of anydeposition begins with simple instructions, often buttered up with expressions of concern.

Q. Now, Mr. Brown, I will ask you questions thatyou are asked to consider before answering. Thereporter is here to make a record of the questionsand your answers. It is essential that each of youranswers be oral. Do you understand?

A. Yes.

Q. Good. Please state your name.

A. Oral.

Q.What is your address?

A. Oral.

Q. Let’s go off the record for a minute.

Ah, counsel, how much time do you want to present your case?

A report in The Washington Post reached out to theMissouri hinterland and the Carthage Press to bring inthis story of a zealous pleader. The complaint alleges:

All of the bones, organs, muscles, tendons, tissues, nerves,veins, arteries, ligaments ... discs, cartilages and the jointsof her body were fractured, broken, ruptured, punctured,compressed, dislocated, separated, bruised, contused,narrowed, abraded, lacerated, burned, cut, torn,wrenched, swollen, strained, sprained, inflamed and infected.

One can imagine the court at pretrial, going overthe checklist. And how many witnesses do you plan to call?

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res gestae - october 2014

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