res gestae - october 2015

October 2015 Vol. 59, No. 3New ISBA President & Her FamilyCarol Adinamis

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 PERSPECTIVECarol M. Adinamis, Westfield, 2015-2016

15 FROM THE DESK OF DEAN LYONAndrea D. Lyon, Valparaiso

18 ETHICS CURBSTONEDonald R. Lundberg and Caitlin S. Schroeder, Indianapolis

25 RECENT DECISIONS 5/15Curtis T. Jones, Indianapolis

30 RECENT DECISIONS 6/15Kathy L. Osborn and Melody M. Bledsoe, Indianapolis

40 WORDWISEJonathan B. Warner, Indianapolis

42 CRIMINAL JUSTICE NOTES 6/15Jack Kenney, Indianapolis

46 FAIR COMMENTISBA Leadership Development Academy Class 4

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.

©2015 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 2015 � Vol. 59, No. 3

D E PA R T M E N T S7 LDA APPS DUE NOV. 6

13 SOCIAL IMPACT

RES GESTÆ • OCTOBER 2015 3

F E AT U R E S

10 REQUIRED REPORTING OF LAWYER CRIMINAL CONVICTIONSBy G. Michael Witte, Executive Secretary, Disciplinary Commission

13 BENEFIT CORPORATIONS IN INDIANABy Indiana House Rep. Casey B. Cox, Fort Wayne

Featured on the cover (L-R): daughter Catherine, son Alex, new ISBA President Carol Adinamis,

husband & law partner, Jeffrey Saunders, and daughter Elizabeth

Photo by Casey Cronin, www.caseycronin.com

40 WHETHER STATEMENTS

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Iam so honored to be assuming the posi-tion of president of the Indiana StateBar Association. I’m in awe of all of

those presidents I’m following and of thestaff of the Association who make it such awonderful organization. The ISBA has beenso successful in addressing the needs ofthose in the legal profession and the publicbecause of these leaders and because ofyour willingness to give of yourselves. It ismy plan to continue that tradition of excel-lence. My journey to this place has beenfilled with twists and turns, each of whichhas taught me valuable lessons about life.

My trek to becoming a lawyer wassomething that was destined from thebeginning, despite what I believed as I grewup. My paternal grandparents were immi-grants from Greece, living and working in“Greek Town” in Chicago. Having only an8th grade education, my grandfather feltstrongly about his children having as mucheducation as possible. During the late 1930sand early 1940s, it was unusual for a womanto have a college education, not to mentiona degree beyond that. Yet my Aunt Stellamanaged to go to Northwestern for herbachelor’s and master’s degrees on a fullscholarship, and then attend law school inthe evenings while teaching Latin duringthe day. The only other woman in her lawschool was her future sister-in-law. Shepracticed for 50 years. In addition to this,she raised two wonderfully successful chil-dren as a single mother after her husbanddied very early in their marriage – all of this during a time when women were rarelyworking mothers, not to mention lawyers.

Adding to her challenges was the preju-dice against those who were thought of as not “truly” American. She was a proudGreek American whose first language wasGreek, yet for her professional career shewas persuaded by such prejudice to changeher name from Stella Adinamis to StellaJean Adams.

As I compare my aunt’s challenges tothose that I have faced, I am humbled byher strength and courage. She would say if she were alive today that she simply keptmoving forward, facing each challenge as it came. She never complained about those

challenges, and she never bragged aboutovercoming them; they were simply fact.That attitude is one I aspire to adopt.

We all have faced and continue to facedifferent challenges in life. It is the recogni-tion that while our challenges may look dif-ferent, they are still obstacles we must eachovercome, and that is what makes us com-passionate and kindhearted human beings.

As we embark on this year together, it’smy hope we will undertake what’s left to beaccomplished by our long range plan; workhard to strengthen the benefits that theAssociation provides to its members, focus-ing on things that will allow each of you topractice law in a more efficient and effectivemanner; explore the ways in which we mustchange in order to stay relevant in the legalworld despite the incredible competition weare facing from non-legal entities; and forgeahead with additional initiatives. I am grate-ful to have so many extraordinary peopleinvolved in this organization, and I plan touse their talents to the fullest. Your partici-pation in the Indiana State Bar Associationis key to its success, so I thank you inadvance for your assistance and sacrifice.

My goal is to make my Aunt Stellaproud of me, as I am so extremely proud to be her niece. Her strength has had atremendous impact on my life. Incidentally,her favorite sports team was the ChicagoCubs. When she was young, she and myAunt Mary would bring baked goods to team members – this was when access to players was much easier, of course. So in memory of her – GO CUBS!

Thank youfor allowing me to serve as thepresident of theIndiana State BarAssociation in the coming year.It is truly anextraordinaryprivilege. �

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

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

http://www.inbar.orgOFFICERS

President Carol M. Adinamis, Westfield

President-Elect Mitchell R. Heppenheimer, South Bend

Vice President Andi M. Metzel, Indianapolis

Secretary Patricia L. McKinnon, Indianapolis

Treasurer Hon. Michael N. Pagano, Crown Point

Counsel to the Karl L. Mulvaney, IndianapolisPresident

BOARD OF GOVERNORS1st District Michael J. Jasaitis, Crown Point

2nd District Robyn M. Rucker, Valparaiso

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

4th District David E. Bailey, Fort Wayne

5th District Daniel L. Askren, Attica

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 Hon. Angela G. Sims, Anderson

11th District Andrew Z. Soshnick, Indianapolis

11th District Hon. Tanya Walton Pratt,Indianapolis

11th District Deborah J. Caruso, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Shontrai D. Irving, Hammond

Past President Jeff R. Hawkins, Sullivan

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

House of Delegates Michael E. Tolbert, Gary,Chair-Elect

Young Lawyers Benjamin D. Fryman, Valparaiso,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]

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

Administrative AssistantKimberly D. Latimore • [email protected]

Director of CLEChristina L. Fisher • [email protected]

CLE Coordinator Whitney Ruffin • [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 2015 5

PRESIDENT’S PERSPECTIVECAROL M. [email protected]

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Lawyer-members of the Indiana State BarAssociation who have

been in practice 15 years or less are invited to apply to the ISBA’sLeadership Development Academy.The LDA empowers and developslawyers to be informed, committedand involved so that they may fillsignificant leadership roles in localand state bar associations, Indianacommunities and organizations,and serve as role models in mattersof ethics and professionalism.

LDA graduates are recognizedacross the state as up-and-comingleaders in their communities, thelegal profession, and the state as a whole. Twenty-five successfulcandidates will spend five sessionslearning actively from Indiana lead-ers to include Indiana SupremeCourt justices, Indiana appellateand trial court judges, state andlocal government officials, businessleaders and recognized lawyer leaders from across the state. The program broadly focuses on service: to the legal profession,to the community and to oneself.

Applications are now availablefor download from the ISBA web-site, www.inbar.org. The applica-tion deadline is Nov. 6.

Successful candidates will berequired to attend and participatein all sessions. Remembering thatthe topics at any session are subjectto change and/or variation, here iswhat the 25 successful candidatescan expect out of LDA V.

Session 1: Jan. 21-23Fort Harrison State ParkIndianapolis

Session 1 begins with an informal reception on Thursdayevening, where class members willmeet each other and key membersof the LDA faculty and committee.The real work begins Friday morn-ing when class members focus on developing relationships with

each other – a necessary compo-nent of leadership. Intense interac-tive activities guided by profession-al leadership training facilitators will train class members on servantleadership, consensus building, and recognizing and respecting different learning styles. This setsthe tone for the remaining sessionsin the program as the class travelsthe state to see examples of leader-ship in action and learn about time-ly issues affecting Indiana commu-nities.

Session 2: Feb. 15-16Statehouse, Indianapolis

The class returns toIndianapolis one more time for a comprehensive visit of the beauti-ful Indiana Statehouse. Session 2will give students an inside look atstate and local government and theopportunity to get acquainted withmembers of the Indiana SupremeCourt and Court of Appeals. They

will hear an oral argument and havea candid discussion about profes-sionalism and ethics with the judgessitting on that panel. The class willbegin a program-long focus on theimportance of inclusion and well-ness. There’s never a dull moment,as the class will engage in activeexercise, panel discussions andinteractive group discussions to start recognizing where the use (or lack thereof) of consensusbuilding and learning styles affectprogress and leadership.

Session 3: March 10-11South Bend

In Session 3, LDA V travelsnorth to South Bend, where thesefuture lawyer leaders will focus onissues relating to leadership in edu-cation. A combination of interac-tive methods and panel discussionswill provide students with ample

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opportunities to see servant leader-ship in application and recognizehow techniques learned in Session 1have been effectively applied toreal-life situations.

Session 4: April 21-22Muscatatuck Urban TrainingCenter, Butlerville

Often cited as a highlight of the LDA, the class will rough it in bunk-like facilities at the urbantraining center in Butlerville. Theclass sometimes shares the facilitywith military units or governmentagencies training to protect ournation, with all the bells and whis-tles (or choppers and bombs) thatgo along with it. Session 4 includesan interactive tour of the base andthe opportunity to discuss militaryand disaster readiness with peopleon the front lines. Class membersshould be prepared to get up early

for a typical (read: watered down)PT (or physical training) session,led by retired Army ColonelIndiana Supreme Court JusticeSteven David.

Session 5: May 19-21Richmond

LDA V will end in Richmond,where the class will hear about theimportance of arts in communityand economic development afterbeing treated to a private viewing of Legally Blonde, The Musical atRichmond Civic Theatre. In addi-tion, Session 5 will interject a studyof the inclusion of all voices incommunity development effortsand how leaders must and shouldensure representation of all view-points. After five intense months of this program, the class will betreated to dinner and a graduationceremony, where many of the

LDA faculty and committee as well as representatives from the ISBA and Indiana BarFoundation will be on hand to congratulate this ascendinggroup of Indiana leaders.

Class project

As part of the LDA, class participants will develop and carryout a class project that will contin-ue their work together even aftergraduation. Each of the above five sessions will include time for intense group discussion and planning in which leadershipskills learned through the LDAexperience are given practical application. �

LEADERSHIP DEVELOPMENT ACADEMY continued from page 7

8 RES GESTÆ • OCTOBER 2015

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2016 OPEN ENROLLMENT

MAKE SURE YOU’RE COVERED Shop for your 2016 Health Insurance plan through The Indiana State Bar Private Health Insurance Exchange

products from leading insurance providers. The exchange is available for individuals or employer groups

advantage of the interactive decision support tools or live chat. If a more personalized approach is preferred,

Start shopping for Health Insurance now at www.isbaia.com or call 1-877-647-2242

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Most lawyers are not asocietal threat to commitcrimes, but some do.

The most common criminal pitfallsfor lawyers are substance offensessuch as operating a vehicle whileintoxicated (OWI), public intoxica-tion and illegal drug possession. A few cases each year involve acts of theft or battery. After a lawyerhas been criminally convicted, who has the obligation to report the conviction to the DisciplinaryCommission? The errant lawyer?The judge? The prosecutor? Anymember of the bar that is aware of the conviction?

An affirmative duty to report

The errant lawyer has an affir-mative duty to self-report any crim-inal conviction to the DisciplinaryCommission. The judge presidingover the conviction also carries an affirmative duty to report theconviction to the DisciplinaryCommission. Both of these duties are found in Admission & Discipline Rule 23 §11.1(a)(1)and (2). Both subsections of thismandatory reporting rule requirethe lawyer and the judge to trans-mit a certified copy of the convic-tion to the Commission within 10 days of the finding of guilt.Confusion on this topic arises whenone looks at the separate substan-

tive rule governingprofessional conduct – specifically Profes-sional Conduct Rules8.3(a) and 8.4(b). Rule 8.3(a) defineswhen any attorneyshould report anotherlawyer’s misconduct.Rule 8.4(b) defineswhat type of criminalconduct is consideredethical misconduct.Both rules set a stan-dard that the ethical

violation either “raises a substantialquestion” as to or “reflects adverse-ly” on the “lawyer’s honesty, trust-worthiness or fitness as a lawyer in other respects.”

Sometimes the errant lawyer orthe judge evaluates these standardsand fails to report the conviction tothe Commission after concludingthat the conviction does not meetthese standards. In doing so, theyoverlook the separate and manda-tory procedural duty in Admission& Discipline Rule 23 §11.1(a)(1)and (2) to report the conviction todisciplinary authorities regardlessof whether the conviction would beactionable under Rule 8.4(b). Thejudge does not have to perform thenexus analysis before fulfilling thisduty. The nexus question initially is a charging decision exercised bythe Commission and later becomesan element of proof for them.

An obligation to report by other lawyers

Professional Conduct Rule8.3(a) is the substantive rule thatguides the prosecutor or other barmembers when they are aware thata lawyer has been convicted of acrime. That is the rule that placesan affirmative duty on all lawyers to report to the Disciplinary

Commission any violation of theRules of Professional Conduct that“raises a substantial question as tothat lawyer’s honesty, trustworthi-ness or fitness as a lawyer in otherrespects … .” It is this clause thatcauses angst for lawyers contem-plating whether to report anotherlawyer convicted of a crime to theCommission. Unlike the convictedlawyer and the judge who have nodiscretion in reporting, it can betrying for the prosecutor and othermembers of the bar to determinewhether a conviction meets thestandards listed in Rules 8.3(a) and8.4(b) unless they are familiar withwhat crimes the Supreme Court hasidentified over the years as violatingRule 8.4(b). The DisciplinaryCommission is usually in the bestposition to sort out whether mis-conduct or a particular crime isinside or outside the “substantialquestion” and “adverse reflection”standards.

What else do I need to know about the reporting requirements?

1. Both subsections (1) and (2)of Admission & Discipline Rule 23§11.1(a) apply when a lawyer is“found guilty of a crime … .” It is a common misconception that only felony convictions need to be reported. In fact, no distinc-tion is made between a felony ormisdemeanor conviction in eithersubsection.

Confusion might arise becausea separate part of this rule addressesinterim suspension of a law licensewhen a lawyer is convicted of a crime punishable as a felony. The interim suspension for felonyconviction is independent of thereporting requirements.

2. The reporting obligations of both Admission & DisciplineRule 23 §11.1(a)(1) and (2) and

ATT

ENTION

Required reporting of lawyer criminal convictions to the Disciplinary Commission

By G. Michael Witte


G. Michael WitteExecutive Secretary

Indiana Supreme CourtDisciplinary Commission

Indianapolis, [email protected]

• A lawyer must self-reportany criminal conviction to the DisciplinaryCommission.

• The judge presiding over the conviction alsocarries an affirmativeduty to report the conviction to theDisciplinary Commission.

RG 10.15_RG 09.05 10/15/15 10:02 AM

Professional Conduct Rule 8.3(a)do not apply to infraction offenses.

3. The reporting requirementapplies to convictions arising from“a crime in any state or of a crimeunder the laws of the United States…” not just to crimes committed in Indiana.

4. Failure to comply with thecriminal conviction self-reportingrule is an ethical violation. It canserve as the basis for a misconductcharge. It can also serve as an aggra-vating factor in determination of a sanction. This violation is oftendiscovered when the errant lawyeris the subject of a subsequent criminal prosecution of which the Commission becomes aware.

A practice tip: Judges shouldinform the errant lawyer that in 10 days the Commission will benotified of the conviction pursuantto the judge’s duty to report. Thejudge should remind the lawyer of the duty to self-report and tellthe lawyer it would be prudent if the Commission first heard fromthe lawyer rather than the court.

Summary

A lawyer who is convicted of a misdemeanor or felony in anyjurisdiction must self-report theirconviction to the DisciplinaryCommission. Also, any Indianajudge who presides over the crimi-nal conviction of a lawyer mustreport the conviction to theDisciplinary Commission. A prose-cutor, or any lawyer other than theerrant lawyer, is not under the sameduty as the errant lawyer or thejudge presiding over the conviction.However, it is a best practice forthis group of lawyers to reportanother lawyer’s criminal convic-tion to the Disciplinary Commis-sion and let the Commission determine if the conviction fits into the “substantial question” or“adverse reflection” standards. �


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Women in the Law Committee: Women’s Bench Bar Retreat – 2/26/2016 - 2/28/2016

Indiana State Bar Association • www.inbar.orgOne Indiana Square, Suite 530 • Indianapolis, IN 46204317-639-5465 • 800-266-2581 Toll Free • 317-266-2588 Fax

Name________________________________________________

Address______________________________________________

City, State, Zip____________________________________________

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A $25 service fee will be applied to cancellations received on or before 2/19/16.No refunds on cancellations received after 2/19/16. If you send someone else

in your place, please provide ISBA with that person’s name.

Register online at www.inbar.org or submit completed registration form to:

Fax: 317-266-2588, Attn: CLE & Events • Email: [email protected] more information, please call the ISBA at 800-266-2581.

Feb. 26-28, 2016Phoenix, AZ

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❑ Friday Welcome Reception ❑ Saturday Breakfast ❑ Saturday Lunch ❑ Saturday Dessert Reception ❑ Sunday Breakfast

For more information, including the schedule of events and hotel details, visit www.inbar.org.

In December of last year, thePew Charitable Trusts reportedthat social impact investment

in the United States exploded to nearly $6.6 trillion in 2014.1

This reflects a near doubling from$3.74 trillion in 2012. “Socialimpact investment” is a form of investment in business that isintended to generate a positivesocial or environmental impactwhile also seeking a financialreturn. The concept largely rests on the advent of social entrepre-neurialism. In the late ’90s, J. Gregory Dees, a professor of busi-ness at Stanford and later Duke,wrote that social entrepreneurship“combines the passion of a socialmission with an image of business-like discipline, innovation, anddetermination commonly associat-ed with, for instance, the high-techpioneers of Silicon Valley.”2

Over the past decade, numer-ous states have entertained legalconstructs that provide social entre-preneurs an avenue for creating andadvancing mission-based compa-nies. Since 2010, 30 states – nowincluding Indiana – have enactedlegislation to create “benefit corpo-ration” entities to meet the desire of social entrepreneurs to incorpo-rate and ultimately do business intheir state.

During the 2015 session of the Indiana General Assembly, I authored House Enrolled Act(HEA) 1015, which created benefitcorporations in Indiana. The newform of corporation is completelyvoluntary and neither receives taxbenefits nor any preference underthe law. Instead, the form mandatesthat the board of directors seek a“material positive impact on societyand the environment” in additionto seeking profit. The companymay additionally choose to name

in its articles of incorporation a“specific public benefit” defined togenerally include similar languageto that found under IRC 501(c)(3).The legal innovation in the benefitcorporation form is that in man-dating “mission pursuit” and con-sideration of other constituencieson the board of directors, it alsoexplicitly protects these directorsfrom claims for breach of fiduciaryduty for failure to maximize profits.Readers may recall the landmarkMichigan Supreme Court decisionfrom 1919 in Dodge v. Ford asstanding for the proposition that“[a] business corporation is orga-nized and carried on primarily for the profit of the stockholders.The powers of the directors are to be employed for that end.”3

Delaware business cases havehelped drive the point home. (See,e.g., Revlon, Inc. v. MacAndrews &Forbes Holdings, Inc., 506 A.2d 173,176 (Del. 1986) (stating that “…while concern for various corporateconstituencies is proper whenaddressing a takeover threat, thatprinciple is limited by the require-ment that there be some rationallyrelated benefit accruing to thestockholders.”); and eBay DomesticHoldings, Inc. v. Newmark, 16 A.3d1, 35 (Del. Ch. 2010) (stating that“[d]irectors of a for-profit Dela-ware corporation cannot deploy a rights plan to defend a businessstrategy that openly eschews stock-holder wealth maximization … .”))

While Indiana maintains broadpermissive constituency provisionsin its Business Corporation Law(“IBCL”), a company’s board ofdirectors may be hesitant to makemission objectives a true part of the DNA of its company, for fear of exposing the directors tosuch a claim – whether actuallyvalid under the IBCL or not.Commentators have argued that“[c]ourts are reluctant to interpret

constituency statutes as supplantingthe shareholder-centric policiesenunciated by Revlon. Instead, constituency statutes currentlyfunction only to the extent thatthey do not conflict with sharehold-er primacy.”4 The benefit corpora-tion concept clearly disposes ofthese concerns.

Other benefits to social entre-preneurs who choose to incorpo-rate as a benefit corporationinclude the ability to protect themission objectives of their companyover the life cycle of the business.Because conversion away from the corporate form is pegged at a90-percent shareholder vote withdissenter’s rights, the company islikely to maintain its mission iden-tity regardless of new investors, orthrough an initial public offering.This is important for entrepreneurswho want to protect their motiva-tion for starting their business inthe first place while providing aclear legal framework for doing so. Further, companies wishing toengage in this form of social enter-prise without advent of the benefitcorporation law must rely on con-tract law (for example, elaborateshareholder agreements or operat-ing agreements for LLCs), which isnot the preferred form for manyinstitutional investors looking tomake good on the rise in socialimpact investment.

Finally, companiescan project to the publicwhat they stand forthrough incorporatingunder the benefit corpo-ration law. As the conceptbecomes more familiar toconsumers and investors,the identity associatedwith the benefit corpora-tion concept coupled with proof of pursuingthe company’s mission

Benefit corporations in Indiana: ‘social impact investment’By Indiana House Rep. Casey B. Cox

Casey B. CoxBeers Mallers Backs & Salin LLPFort Wayne, [email protected]



BUSIN

ESS LAW

RG 10.15_RG 09.05 10/15/15 10:02 AM

objectives will be invaluable to thecompany’s ability to show that it iswhat it says it is.

On the last point, one concernover the concept is that companieswill be able to call themselves bene-fit corporations for marketing pur-poses while not actually attemptingto have a “material positive impacton society and the environment,” as mandated by the statute. To dealwith this potential problem of“greenwashing” or “gaming the system,” as one lawyer put it, thebenefit corporation legislation hasthree accountability mechanisms:

First, the benefit corporationmust name an independent mem-ber of the board of directors as a“benefit director.” Many nonprofitorganizations have independentmembers (persons who have noemployment or familial relation-ship with the organization) that sit on the board to ensure that the

filed with the Indiana Secretary ofState. It is a key element in marketaccountability for the benefit cor-poration. Investors will review theannual report to determine if theywish to engage with the company;consumers and the public at-largewill have access as well.

The third accountability mechanism is the ability of theshareholders to pursue a “benefitenforcement proceeding” againstthe directors or officers of the com-pany for failure to pursue a generalor specific public benefit. This pro-ceeding equates to an injunction in which the relief sought is torequire the board of directors pursue a general or specific public benefit. Monetary damages are not available under these circum-stances.

With benefit corporation legis-lation in place, Indiana may makeitself more attractive to social entre-preneurs, many of who are underthe age of 40. The expansion insocial impact investment may findits way into our communities andgrow our state’s economy withoutexpensive government involvementor lucrative tax breaks. It may builda new class of entrepreneurs inIndiana and with that create a posi-tive material impact on our state.

1. Source: US SIF Foundation,http://www.ussif.org.

2. Dees, J. Gregory, “The Meaning of Social Entrepreneurship,” 2001, https://centers. fuqua.duke.edu/case/wp-content/uploads/sites/7/2015/03/Article_Dees_MeaningofSocialEntrepreneurship_2001.pdf.

3. Dodge v. Ford Motor Co., 170 N.W. 668, 684 (1919).

4. Anthony Bisconti, “The Double Bottom Line:Can Constituency Statutes Protect SociallyResponsible Corporations Stuck in RevlonLand?” 42 Loy. L.A. L. Rev. 765, 788 (2009).

BENEFIT CORPORATIONS continued from page 13


nonprofit is carrying out its exemptpurpose or nonprofit objectives.Similarly, the benefit corporationwould require at least one suchindependent member of the boardof directors who would be requiredto make sure that the benefit corporation carries out its secondaccountability mechanism: the annual benefit report.

The annual benefit report mustinclude the ways in which the bene-fit corporation pursued a generalpublic benefit during the year, the extent to which general publicbenefit was created, as well as anassessment of the overall social andenvironmental performance of thebenefit corporation against an inde-pendent, credible, third-party stan-dard chosen by the benefit director(there are numerous such standardscurrently in existence).

The benefit report must bemade available to the public and

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When we talk of researchskills, a good lawyerlearns quickly that they

encompass more than the library,more than the Internet and morethan our personal life experiences.The facts do not arrive in three tidyparagraphs at the beginning of anappellate opinion – they are outthere in the world, and a goodlawyer has to go find them. Thechanges in legal education that we have made and are making at Valparaiso Law reflect this.

I learned this lesson as a youngpublic defender when I was work-ing on a home invasion and bur-glary case. The homeowner couldnot make any identification (heinterrupted the person who thenran), and the sole piece of identify-ing information was a fingerprintfound on the sill of the window thathad been forced open. Now, we allwatch television and have learnedthat fingerprints are a way to solve a crime. The way it works is thatpoints of comparison between theunknown or latent print and thesuspect’s print are compared, and if there are enough of them, anidentification is made. What is lesswell known is that this is far morean art than a science, and that thereis disagreement about how manypoints of comparison are needed to say, “This is the person.” I foundthis out by reading forensic textsand journals. The FBI requires a minimum of eight points, while most other forensic scientistsconsider 12 points more reliable;Indiana has no set number. In thiscase there were seven, but theexaminer’s report read “match.”

So I called the fingerprintexaminer and asked for an inter-view. He agreed and explained tome what he had done as well as theprocess for such examinations. Thelab wasn’t what I expected. It was(at that time) on the second floor

of police headquarters in Chicago.It was dusty, crowded and window-less, and had spiders in all the corners. Nonetheless, I asked theexaminer if I could follow himaround a bit and watch him workso I could understand what he didbetter. He was a straightforwardperson, so he said yes. I spent thenext two days watching him (andothers) work. After a while they all kind of forgot I was there – thesame way people forget about cam-eras. I learned a lot over those twodays. I found out that they used alighted box to put the two prints –known and unknown – side by sideto compare. I learned that whenthey had questions or wantedanother opinion they would writethat on the cover of the manilafolder, not on a piece of paper onthe inside that I would normally getin discovery (another great lesson).And I found out more from whatthe examiner didn’t say than whathe did, that he wasn’t comfortablewith his conclusion and two of thepoints were iffy for him.

The fingerprint was the wholecase. I had an African Americanclient who looked like the stereo-type of what my jury would thinkwas a home invader. He had aminor record for drug possessionand the like, and I had a sympathet-ic victim who had been rightfullyterrified. If the fingerprint wentunchallenged, the “match” wouldhave convicted him. But it didn’tbecause of the research I did andwhat I learned. When it came timeto cross-examine the examiner, the prosecutor said something like“Miss Lyon may have some ques-tions for you,” and as I stood up,the examiner shook his head ruefully and said, “Don’t I know it. She’s been living at my lab!” I respectfully drew out the prob-lems with the identification, withthe two iffy points and the number

of points generally, and the juryand I reached the same conclusion– this just wasn’t enough.

So why am I telling you thisstory? Because it’s all of these things– a willingness to learn, to find thefacts, to research the area of law orforensic science, and to not makeunwarranted assumptions based on our own biases.

This is what our new curricu-lum at Valparaiso Law – now in its third year – is all about. We areaddressing the changing dynamicsin the legal profession and prepar-ing our students to be practice-ready. First-year students engage in client contact and learn how to interview effectively. Regardlessof the kind of law you practice,transactional, litigation or regula-tory, strong interviewing skills are critical.

We require innovative newcourses on the foundation of legalanalysis and professional commu-nications that are taught by seniorfaculty. Our rigorous training in legal writing begins in the firstyear and extends into the secondand third years. Our curriculumincludes traditional seminars, plus courses on appellate advocacy,legal drafting, legal journalism, andspecific subject-matter advancedlegal writing and drafting courses.Our graduates are earninga well-deserved reputa-tion for strong legal writ-ing and research skills.Our practical-skills train-ing extends from thebeginning of the firstsemester to third-yearpracticums, nationallyrecognized externships (at more than 180 differ-ent sites) and nine live-client clinics in one of the oldest clinical

FROM TH

E DESK

OF D

EAN LY

ON

Where tradition meets innovation: providing a practice-oriented curriculum

Andrea D. LyonDean & Professor of LawValparaiso UniversitySchool of LawValparaiso, [email protected]



RG 10.15_RG 09.05 10/15/15 10:02 AM

programs in the country. Estab-lished in 1967, the Law Clinics arehoused in our own law firm oncampus and in Chicago. Studentsgain practical experience by repre-senting disadvantaged clients whowould not otherwise have access to legal services. Our goal is to seeto it that Valparaiso Law grads arepractice-ready on graduation dayand consider their role as lawyers as a calling and a desire to serve,and not just a job.

For too long legal educationhas separated the intellectual fromthe practical; those barriers arebeing broken down here and inother schools across the country.We have to remember that a person– the client – is depending on us.Whether it’s a contract dispute, a criminal case or the drafting of a will, these are real people who are relying upon our expertise andinsights, and it is our privilege torepresent them. Our duty as educa-tors is to prepare our students to dothe work necessary, invest the timeto get the right information and to see that the work is done well –even if it means spending two daysin a dark fingerprint lab filled withdust and spiders. �

Supreme Court publishes annual report

The Supreme Court annual report (July 1, 2014 - June 30, 2015) is now avail-able online and at the Law Library in the Indiana Statehouse. The 58-page

report provides information about the work of the Court and its affiliated agencies.In addition to providing statistics on the nearly 1,000 cases considered by theCourt, the report also details the administrative work of the judicial branch. Read the report at courts.in.gov/supreme/files/1415report.pdf. The five justices –Loretta Rush, Brent Dickson, Robert Rucker, Steven David and Mark Massa –heard oral arguments in 62 cases and handed down 100 majority opinions afterreading thousands of pages of briefs. Nearly 78 percent of the time, Court opinionswere unanimous. �


DEAN LYONcontinued from page 15

The ISBA LeadershipDevelopment Academy

Class of 2016 applicationis available at the State Bar’s website,www.inbar.org,

under “ISBA News.”

For more information on LDA, see p. 7

of this issue of Res Gestae.

Questions? Contact Catheryne Pully on the State Bar staff

800/[email protected]

RG 10.15_RG 09.05 10/15/15 10:02 AM

This is the second of a two-part annotated table ofcontents of columns pub-

lished during the second five yearsof the 10-year run of “EthicsCurbstone.” Together with lastmonth’s column and “A Five-Year Retrospective,” Vol. 54, No. 1Res Gestae 15 (July/August 2010),this is a comprehensive review of all “Ethics Curbstone” columnsto date.

Usher Considered: Identity Theft and UnwelcomeAdvances (June 2013)

This column was an attempt to take a more interesting look atMatter of Usher, 987 N.E.2d 1080(Ind. 2013). The case was mostly ano-brainer as far as the outrageous-ness of the misconduct. There is nogood purpose in discussing casesthat have little more than gossip

value. See, e.g., Matterof Keaton, 29 N.E.2d103 (Ind. 2015). Usherwas that, for sure, butit also had some inter-esting tidbits tuckedinto it, such as theCourt’s curious ratio-nale for not finding a violation of Rule ofProfessional Conduct1.8(g) and its declina-tion to find that therespondent engaged in the criminal act ofidentity theft, whichwould be a violation of Rule of Profes-sional Conduct 8.4(b).I didn’t understandthe Court’s reasoningfor the former conclu-sion, and I was disap-pointed that the Courtdid not give a reasonfor the latter conclu-sion.

Should Lawyers Be Responsible for Protecting Public Policy?(July/August 2013)

This was a little thought pieceinspired by Perkinson v. Perkinson,989 N.E.2d 758 (Ind. 2013). It wasan effort to explore the difficult linebetween the role of lawyers as zeal-ous client advocates and lawyers as having some responsibility forpromoting public policy that mightbe at odds with their clients’ inter-ests. I hope lawyers take the time to ruminate about the moral (as opposed to legal ethics) implications of our work.

Through a Prism or the Looking Glass? ClientConfidentiality in the Post-Snowden Era (September 2013)

This was intended to scarelawyers about the threats to clientconfidentiality that are presentedby new technologies. Nothing wrongwith a little healthy paranoia. Longgone are the days when lawyerscould act like understanding tech-nology was not part of the packageof important professional responsi-bilities. For the Luddites amongstus, putting our heads in the sand is not an option. Learn it or hiresomeone skilled in current technol-ogy, like your grandchild.

Lawyers and Judicial CriticismRevisited (October 2013)

Matter of Dixon, 994 N.E.2d1129 (Ind. 2013), is essential read-ing in helping lawyers navigate thetreacherous shoals that lie betweenappropriate judicial criticism in service of client advocacy and criti-cism that runs afoul of Rule ofProfessional Conduct 8.2(a).Among its contributions is theopinion’s summary of importantpast cases. The opinion alsoacknowledged that there can beconstitutional issues presentedwhen lawyers use speech to criticizejudges, but it did not reach and did

not need to reach the constitutionalquestions.

I Swear or Affirm: Lawyers andNotaries Public (November 2013)

Lawyers sometimes think of notarization of documents as a mere formality and no big deal. Au contraire, friends. There arestatutory requirements for thenotarization of documents thatnotaries must observe. Whenlawyers are also notaries, they mustabide by those requirements. Whenthey use notaries, as they often do,they must not try to influence themto cut corners. This column was a small effort to give notaries whowork for lawyers permission topush back hard when they are pres-sured to do what the law says theyshouldn’t. Shame on the lawyerswho put their subordinates into a pickle like that.

No December 2013 column. Gone fishin’, caught daydreaming,forgot to set my alarm, dog ate myhomework.

Rule 1.8 Conflicts of Interest and Client Consents to Conflicts(January/February 2014)

This was the penultimate column in a series of columnsdevoted to conflicts of interest.Rule of Professional Conduct 1.8 is a hodgepodge of specific applica-tions of the principles of current-client conflicts of interest found inRule of Professional Conduct 1.7.Lawyers who have a conflict-of-interest concern who stop withRule 1.7 might well find themselvesin trouble.

Thoughts on Law FirmManagement and Supervision(March 2014)

Rules of Professional Conduct5.1 and 5.3 are often overlooked,but they are important. They gov-ern the circumstances when lawyerscan be held accountable, not fordirectly doing anything wrong,

ETHICS CURBST

ONE

A second five-year retrospective – Part IIBy Donald R. Lundberg and Caitlin S. Schroeder


Caitlin S. SchroederBarnes & Thornburg LLP


Donald R. LundbergBarnes & Thornburg LLP


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but for failing to keep bad stufffrom happening when they managelaw firms or supervise otherlawyers. This column takes thoserules apart and explains them.

Managerial and SupervisoryResponsibility for AvoidingConflicts of Interest (April 2014)

One important managerial andsupervisory responsibility lawyershave is to take care that conflicts of interest are identified and dealtwith before they sneak up frombehind and bite you in the rearquarters. The devil is not normallyin the existence of a direct conflictof interest; it is in the imputation of conflicts of interest within a lawfirm. Taking off from the founda-tion laid by the previous month’scolumn, this column applies thoseprinciples to the detection andavoidance of conflicts of interest.

The Not-So-ConfidentialConditional Agreement for Discipline (May 2014)

A lot of mystery enshrouds thelawyer discipline process – some-times by design, sometimes not.This column discussed two recent,troubling lawyer discipline casesthat seemed to shine a published-opinion light on matters thatAdmission & Discipline Rule 23indicates should be confidential.This column used these two cases as a launching pad to discuss theresolution of lawyer discipline casesthrough a mechanism known as a conditional agreement for disci-pline. Rule 23 has some importantconfidentiality provisions that aredesigned to create incentives for (orat least not disincentivize) lawyerswho want to try to resolve disci-pline cases by agreement. When, as in these cases, a corner is liftedon information that should be con-fidential, that important structureof incentives is threatened.

Law Tiger, Hidden Dragon: New Uncertainties with LawyerAdvertising (June 2014)

Cover story. Whoo-hoo! And a pretty neat cover to boot. TheSupreme Court’s decision in alawyer discipline case, Matter ofAnonymous, 6 N.E.3d 903 (Ind.2015), was the grist for this columnon lawyer advertising. It suggestedthat lawyer advertising as regulatedin Indiana was not for the faint ofheart and bemoaned a missedopportunity for the Supreme Courtto use the case as an occasion todiscuss the important distinctionbetween collective advertising(okay) and for-profit lawyer referral services (not okay).

Breaking Up is Hard to Do:Lawyers and Competition(July/August 2014)

A hat tip to Neil Sedaka for the title. Lawyers have become likemarried people. They don’t staytogether as long as they used to.When married people divorce, the former spouses are pretty muchfree to go about their business. Not so with lawyers. We are gener-ally prohibited from keeping for-mer law firm colleagues from com-peting after they leave. Rule ofProfessional Conduct 5.6(a). Thiscolumn discussed the application of that rule in a lawyer disciplinecase. Matter of Truman, 7 N.E.3d260 (Ind. 2014).

Odds and Ends: Some Recent Casesof Interest (September 2014)

“Ethics Curbstone” usuallyopts more for depth than breadth,which means columns don’t usuallyconsist of blurbs on lots of casesand instead focus on a particularcase, issue or theme. That said,sometimes the cases roll out fasterthan can be done justice in a 10-times-a-year column. This was acatch-up column on several cases



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that should be of interest to lawyerswho aren’t legal ethics wonks. Thecase I would like to have writtenabout in more detail was Drake v.Dickey, 2 N.E.3d 30 (Ind. Ct. App.2013), opinion on transfer, 12N.E.3d 875 (Ind. 2014) (vacatingfootnote on an appellate procedurequestion in Court of Appeals opin-ion and otherwise summarilyaffirming). It is deserving of morein-depth treatment for its potentialimplications for what we mighthave assumed was the general invi-olability of attorney-client commu-nications. The legal issue in the casewas whether discussions between a client and lawyer can form thebasis for a claim against the law firm of tortious interference with a contractual relationship.

Pro Bono and Pro Bono Reporting(October 2014)

The Supreme Court created a new rule, Rule of ProfessionalConduct 6.7, effective Jan. 1, 2015that mandates the reporting ofsome, but not all, pro bono workon lawyer annual fee statements.This column discussed the impor-tant new distinction between probono legal work that falls within

Rule 6.1 and the subset of report-able pro bono legal work governedby Rule 6.7. It also critiqued thenew rule, which had engendered a fair amount of teeth-gnashingwithin the bar.

Can the Attorney-Client Privilegeand the Work Product Doctrine Be Defeated by EquitableConsiderations? (November 2014)

This was the first of twocolumns inspired by PurdueUniversity v. Wartell, 5 N.E.3d 797(Ind. Ct. App. 2014). It was mostlya discussion of the case, but it was also a critique of the conceptadvanced by the Court of Appealsin dicta that a party could be equi-tably estopped from asserting theattorney-client privilege or work-product protection.

When Lawyers Investigate(December 2014)

This was the second of twocolumns inspired by PurdueUniversity v. Wartell, 5 N.E.3d 797(Ind. Ct. App. 2014), an importantopinion discussing privilege issuesthat can arise when lawyers take onthe role of investigators. Ratherthan discussing the case, it mused

about the lessons to be drawn fromit and what lawyers should do toprotect privilege if they are acting as investigators incident to anattorney-client relationship.

Lawyer Discipline in 2014: AnAnnotated Report from the FrontLines (January/February 2015)

Most lawyers are interested inwhat the Supreme Court has to sayin lawyer discipline cases. The barprobably doesn’t care that muchabout the statistics related to lawyerdiscipline. This column was aneffort to present lawyer disciplinestatistics from 2014 with annota-tions giving a fairly detaileddescription of how lawyer disci-pline procedure that lies behindthose statistics works. It is a prettythorough resource for understand-ing some of the inner workings ofthe lawyer discipline process.

Wandering Through the Back Alleyways of Rule 8.4(d): What is Conduct Prejudicial to the Administration of Justice(March 2015)

Rule of Professional Conduct8.4(d) says it is professional mis-conduct to engage in conduct prej-udicial to the administration of jus-tice. This column looked at andanalyzed five-years’ worth of casesthat included a Rule 8.4(d) viola-tion and made some observationsthat will be shown to be right orwrong depending on what the next

ETHICS CURBSTONE continued from page 19


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Rule 8.4(d) case that comes downthe line says.

Monroe Freedman (1928-2015):The Passing of Legal Ethics Giant(April 2015)

They probably won’t make any more Monroe Freedmans. His footprint in the area of lawpractice I care about was immea-surably large. He was brilliant,provocative and often maddening.Life is never dull with the MonroeFreedmans of the world in ourmidst. We should treasure them.

Splitting the Baby Revisited:Lawyer Fee Fights (May 2015)

This column revisited the topicof dividing fees when lawyers splitup, also discussed in the December2006 column. Cohen & Malad v.Daly, 17 N.E.2d 940 (Ind. Ct. App.2014), provided an opportunity todiscuss it again and also to suggestthat there remains a gap in Indianajurisprudence about what equi-table-fee rights a lawyer in a contin-gency-fee representation shouldhave when the lawyer withdrawsfrom the representation withoutgood cause or when the client firesthe lawyer for good cause. The col-umn highlighted a Minnesota casethat did a fine job of summarizingthe case law in this area and con-cluded that the lawyer who aban-dons a client in a contingent feematter without good cause has noequitable right to compensation. In Re Petition for Distribution ofAttorneys’ Fees between StowmanLaw firm, P.A. and Lori PetersonLaw Firm, 855 N.W.2d 760 (Minn.Ct. App. 2014).

Rule of Professional Conduct 6.7,Version 1.1 (June 2015)

The October 2014 column discussed and critiqued the newRule of Professional Conduct onmandatory pro bono reporting.Thereafter, the Supreme Courtmade significant tweaks to the ruleand amended it effective April 30,

2015. This column explains thosechanges and how the amendedreporting rule works.

Lawyer Advertising and Client FileRights (July/August 2015)

This column publicized an important new national reporton lawyer advertising by theAssociation of ProfessionalResponsibility, of which I am

a proud member. I was pleased toread that the report devoted a smallsection to a survey of lawyer adver-tising enforcement and some ideasabout regulating it that I wrotewhen I was still on the regulator’sside. Lundberg, “Some ThoughtsAbout Regulating LawyerAdvertising,” 34 ABA Nat’lConference on Prof’l Responsibility(May 28-31, 2008). �


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Eating healthfully can some-times seem overwhelming.It’s quite difficult to eat

healthy all the time. But what if weshifted our thinking that we didn’thave to eat healthy all the time?That sometimes we can have an extra helping of ice cream orFrench fries and not feel bad aboutit. That would make our lives a loteasier, especially starting off a newyear (or month) on the heels ofoverindulging during a holiday season.

This is something called bal-anced eating, also known as the80/20 rule. What does that mean? It means that you don’t have tocook everymeal at home. Cookingat home means you know exactlywhat goes into your food – howmuch oil, butter, how many carbs,etc. And it’s about a hundred timeseasier to figure out your portionsizes as well. However, it is difficultto eat every meal at home, and thereality is, it’s enjoyable to eat out, to decide what you want to eat 20 minutes before you consume it,to have a multitude of options, tohave someone else serve you, and to not have to clean up after your-self. And who wants to turn downcoworkers or friends after beingasked to go out to lunch or dinnerbecause you’re trying to eathealthy? Indiana has a variety ofgreat restaurants and so many newplaces to check out. Eating out is a great way to support local busi-nesses or some of your favoritechain restaurants.

And while it’s a great habit tocook your own meals the majorityof the time, it’s okay to eat out a few times a week. Some of theoptions will be similar to what youmight make at home – salads, veg-gie-heavy meals, stir-fry dishes, andbaked fish. And some of them are a little more indulgent – trying outa great new pizza place, going to a favorite burger joint with friends

and having delicious, carb-heavypasta on a special occasion or justto end a tough week. And as long as you don’t eat out too often, youcan stop feeling guilty about thesemeals. Because what do we work so hard for in our workouts or inour busy day-to-day lives, if wecan’t enjoy ourselves in life?

It means that on birthdays/holidays/special occasions you can have a piece of cake. One of thehardest things about trying to eathealthy is those times – whether it’s your nephew’s birthday party,Thanksgiving dinner or your bestfriend’s wedding, when it just feelswrong not to indulge just a little.And whether it’s a glass of cham-pagne, a piece of cake or both,

it’s easy to feel like you’re com-pletely ruining your diet if you haveeven just one bite. But if you’re living by the 80/20 principle, thisbecomes completely unnecessary.Because as long as you’re not outindulging in cake and other deli-cious treats too often, and eatinghealthy the rest of the time, you’llbe totally fine. There is no need to obsess over every single calorie at special occasions.

It means you’re building alifestyle, not just following a diet.Most people who start dietsinevitably fail.

Diets aren’t sustainable.They’re based on restriction anddenying yourself your favoritefoods. They’re boring and oftenbased on the latest fad decided by the health & fitnessindustry.

What you should be doing is building ahealthy lifestyle, some-thing that you can sustainover time. Start listeningto your body to realize

FIT TO PR

ACTIC

EProper eating/diet/nutrition

By Lindsey M. Bouza, MPH, CHES, PAPHS

Wellness & PhysicalActivity CoordinatorDivision of Nutrition & Physical ActivityIndiana StateDepartment of HealthIndianapolis, [email protected]


Fit to Practice


RG 10.15_RG 09.05 10/15/15 10:02 AM

that it actually craves protein, sal-ads and sweet potatoes, not a 1,500-calorie hamburger. Relish the tasteof fresh pineapple; experiment withnew flavors and tastes; and order a spinach salad instead of Frenchfries at a restaurant – not becauseyou feel like you have to, butbecause it just sounds better andyou’ll feel better afterwards. And if you give up dieting and focus onbuilding a healthy lifestyle instead,you’ll get there sooner, not later.

Of course, fad diets often takeoff the pounds quickly, but it is notthe healthy, sustainable way to loseweight and maintain a healthylifestyle. By allowing yourself toindulge here and there, you are setting yourself up for a healthieroutlook on eating for a lifetime.

It means you don’t have to beperfect 100 percent of the time.Nobody’s perfect. And you mightas well accept it right now that youtoo are not perfect. So while it’s agood idea, in theory, to aim to eathealthy 100 percent of the time by

not buying unhealthy foods, cook-ing at home when you can, andchoosing smart when you’re eatingout, you should expect to go offcourse at times.

In fact, allowing yourself a littlegive in your diet is actually a goodthing. Because not only will eatinghealthy 100 percent of the timemake you feel bitter about life, it’llalso make it more likely that whenyour willpower is at its lowest you’llgo on a binge-eating fest and chowdown on anything you can get yourhands on. The idea of perfection iswhat leads people off course. It’swhat makes you down that entirebag of chips and carton of Oreosbecause all you’ve eaten is raw vegetables and boiled chicken for days. Don’t aim to be perfect.Aim to be pretty good, the majorityof the time.

Balance is key

In life and nutrition, it’s allabout finding a balance. Because as much as you know proper nutri-

tion will get you the body you want,boost your performance and allowyou to live a long, healthy, activelife, you also want to be able to justlive. And the 80/20 principle allowsyou to do that.

It’s what allows you to go to a party and have something otherthan water. It affords you thatdetour to a Mexican restaurant sothat you can try the chips and salsaeveryone raves about. And couldyou imagine going to Paris and not eating a croissant for breakfastinstead of your usual protein shake.

It means you don’t have toobsess about every morsel of foodyou eat. It allows you to try newthings and be adventurous. And,most of all, it gives you freedom.And that’s what life is all about. �Reference: 12 Minute Athlete

Lindsey Bouza earned a Master of PublicHealth from IUPUI. She is a CertifiedHealth Education Specialist (CHES) as well as a Physical Activity in PublicHealth Specialist (PAPHS).

FIT TO PRACTICE continued from page 23


RG 10.15_RG 09.05 10/15/15 10:02 AM

The Indiana Supreme Courtissued two civil opinions in May, both of which are

discussed below. The SupremeCourt also granted transfer in acouple civil cases in May, which areaddressed as well. Last, seven civilopinions issued by the IndianaCourt of Appeals are highlightedherein. The full text of all Indianaappellate court decisions, includingthose issued not-for-publication,are available via Casemaker atwww.inbar.org or the IndianaCourts website, www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT

Admission of out-of-state attorneys

On May 12, the IndianaSupreme Court granted transferand issued its opinion in YTCDream Homes, Inc. v. DirectBuy,Inc., 30 N.E.3d 701 (Ind. 2015). In YTC Dream Homes, a lawsuitconcerning a franchise dispute,YTC, through its local counsel, fileda motion requesting temporary – or pro hac vice – admission of fiveout-of-state attorneys. Though theattorneys’ motion for admissioncomplied with Rule 3 of the IndianaRules for Admission to the Bar, the trial court denied admission,stating that the plaintiff failed tomeet its burden under Lake CountyLocal Rule 5(C) showing that itcould not locate attorneys licensedin the state of Indiana that hadexpertise in the field of franchiselaw.

The Indiana Supreme Courtreversed the trial court’s ruling andremanded the matter with instruc-tions to determine, without restric-tion by local rule, whether goodcause existed for the admission of the attorneys. In doing so, theCourt emphasized that trial courtsshould consider “good cause” for temporary admission under

Admission & Discipline Rule 3(2),which cannot be vitiated by a localrule.

Scope of waiver of subrogationrights in insurance coverage dispute

In The Board of Commissionersof the County of Jefferson v. TetonCorporation, et al., 30 N.E.3d 711(Ind. 2015), the Indiana SupremeCourt addressed an issue of firstimpression to establish the Indianaapproach to a familiar situation.Property owners and contractorsroutinely agree to waive subroga-tion rights for damages. In Teton,the parties incorporated a standardsubrogation waiver clause in their contract for the repair of the Jefferson County courthouse.While the repairs were underway, a fire severely damaged the court-house, and the County’s insurerpaid for the damages. Afterwards,the County (as the property owner)sought subrogation from the con-tractor for all damages unrelated to the repairs, arguing that the sub-rogation waiver applied only toconstruction-related damages.

The Court recognized thatother states are split concerning this issue, but ultimately adoptedthe majority position concerningthe scope of a waiver of subrogationrights. In doing so, the Court heldthat the plain meaning of the con-tract will define the scope of thewaiver based on the extent andsource of coverage, not the natureof the property damaged. In thisinstance, all of the property owner’sdamages were covered by the prop-erty insurance policy, and, hence,the waiver applied to all damages.Among the courts, this is called the“any insurance” approach to inter-preting subrogation rights waivers.

Establishment & dissolution of countywide fire protectiondistrict

In Anderson v. Gaudin, 24N.E.3d 479 (Ind. Ct. App. 2015),the Court of Appeals reviewed thethird appeal involving the BrownCounty Fire Protection District,which was established in 2007. Thisappeal concerned the enforceabilityof a county board’s amended ordi-nance seeking to dissolve the fireprotection district and the authori-ty of that board to amend the ordi-nance establishing the countywidefire protection district. On May 14,the Indiana Supreme Court grantedtransfer and vacated the Court ofAppeals’ opinion. The SupremeCourt recently issued its opinion,Anderson v. Gaudin, ___ N.E.3d___ (Ind. Sept. 1, 2015), whereinJustice David authored a separateopinion concurring in result, andJustice Rucker authored a dissent-ing opinion.

INDIANA COURT OF APPEALS

Timing of filing a claim to tax sale surplus

The matter of Stump v. St.Joseph County Treasurer, et al.,33 N.E.3d 360 (Ind. Ct. App. 2015),involved proceedings for the releaseand disposition of surplus fundsfollowing a tax sale. One claimanthad timely filed its petition for a disposition of the tax sale surplus within the 3-yeartime period after receiptof the money as envi-sioned by the statute,Indiana Code Section 6-1.1-24-7. While theproceedings were ongo-ing, but after the 3-yeartime period had run,another claimant filed a motion to intervene,claiming a “first and prior

REC

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Appellate civil case law updateBy Curtis T. Jones

Curtis T. JonesBose McKinney & Evans LLPIndianapolis, [email protected]



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judgment lien” on the share of the tax sale surplus. The Court ofAppeals held that since the inter-vening claimant was allowed to join the ongoing proceedings, the claimant should be treated as an original party and elevated to an equal standing with the other parties in the action.

Zoning dispute involving wind turbines

In Dunmoyer v. Wells County,Indiana Area Plan Commission, et al., 32 N.E.3d 785 (Ind. Ct. App. 2015), the Court of Appealsaddressed a dispute concerninglocal government approval to con-struct approximately 68 wind tur-bines on private property locatedadjacent to the petitioners. TheCourt of Appeals recognized thatthe wind energy conversion systemproject was a permitted use on theproperty that had been zoned A-1and that the developers had sub-

mitted a plan that met or exceededthe applicable legal requirementsfor constructing the turbines.Because the legislative body hadcreated zoning districts and setforth specific permitted uses withinthose districts, which included thechallenged project, the court foundthat the petitioning landowners,who also lived in land zoned as A-1, could not prove that they wereeither aggrieved or prejudiced bythe approval of the developmentplan.

Threshold requirements for a remonstrance

In Fight Against BrownsburgAnnexation v. Town of Brownsburg,32 N.E.3d 798 (Ind. Ct. App. 2015),the town challenged whether theremonstrators had met their initialburden of obtaining the statutorilyrequired signatures of at least 65percent of the landowners in theterritory proposed to be annexed.

The town moved the trial court todismiss the remonstrance petitionunder Trial Rules 12(B)(1) and12(B)(6) for lack of subject matterjurisdiction, and the town’s motionwas granted. The Court of Appealsnoted that the applicable statute,Indiana Code Section 36-4-3-11,expressly provides that a party mayfile a remonstrance petition “withthe circuit or superior court of acounty in which the annexed terri-tory is located.” Thus, the courtconcluded that there was “simplyno question that the trial court here has subject matter jurisdic-tion” over the remonstrance petition.

In doing so, the Court ofAppeals emphasized the distinctionbetween subject matter jurisdictionand “jurisdiction over the case,”which refers to various proceduralrequirements within a statute to theexercise of subject matter jurisdic-tion. When applying that distinc-tion here, the Court of Appealsconcluded that Indiana CodeSection 36-4-3-11 does not includeany prerequisite to the court’s exer-cise of jurisdiction over the filing of a remonstrance petition. Rather,the statute expressly provides that aremonstrance petition may be filedwith “the circuit or superior courtof a county in which the annexedterritory is located[.]” Therefore,the court held that challenges to the sufficiency of a remonstrancepetition are not properly raised by a Trial Rule 12(B)(1) motion.

In addressing the merits of thetown’s challenges to the number ofsignatures obtained by the remon-strators, the court first noted thatthe relevant statutes do not requirethe signature in support of aremonstrance be affixed at any particular time before the petitionis filed. Thus, signatures acquiredprior to the adoption of the annex-ation ordinance were sufficient tosupport the remonstrance petition.

RECENT DECISIONS 5/15 continued from page 25


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Furthermore, the court noted thatthe signature of one owner of a parcel of land owned by more thanone person was sufficient to sup-port the remonstrance petition.

Landowner has no duty to maintain dog owned by lessee

In Byers v. Moredock, 31 N.E.3d1016 (Ind. Ct. App. 2015), theCourt of Appeals considered theduty of a landowner who leases or rents a home to an individualwho owns a dog that gets loose and causes an injury to someone in the roadway in front of thehouse. The court held that becausethe landowners were not the owners or keepers of the dog thatcaused injury to the plaintiff, they“had no duty to confine or controlthe dog” nor did they have “a dutyto ensure proper or adequate con-finement or control of the dog, or to monitor the tenant or resi-dents of the property to ensure they properly or adequately confined or controlled the dog.”

Amendment to land contractmust be in writing

In Huber v. Hamilton, 33N.E.3d 1116 (Ind. Ct. App. 2015),two parties executed a land contractfor the sale of commercial realestate. When the buyer was unableto make a payment, he approachedthe seller and made an oral agree-ment about extending the payment.However, the oral agreement wasnever reduced to writing. When theparties brought their disagreementabout the oral amendment to theoriginal land contract to the trialcourt, they presented different ver-sions of the agreement. The Courtof Appeals held that the oral agree-ment was unenforceable, and, thus,by failing to make timely paymentsunder the land contract, the buyerhad breached the written land contract.

Failure to wear seatbelt cannotbe used to prove negligence

In City of Fort Wayne v.Parrish, 32 N.E.3d 275 (Ind. Ct.App. 2015), the Court of Appealswas asked to review the trial court’sorder in limine to exclude evidenceconcerning the fact that an individ-ual was not wearing a seatbelt whena car in which she was a passenger

was involved in an automobile acci-dent causing her injury. At the timeof the collision, Indiana’s SeatbeltAct provided that each front-seatpassenger in a motor vehicle withseatbelts must wear the seatbelts.However, the law also stated thatfailure to comply did not constitutefault under Indiana’s Comparative


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Fault Act. The Court of Appealsconcluded that a failure to wear a seatbelt may also not be used to prove contributory negligenceunder Indiana’s common law as “a plaintiff does not have a duty to anticipate the negligence ofanother” and, thus, affirmed thetrial court’s decision to grant amotion in limine on this issue.

Expert evidence needed to sustain summary judgmentin medical malpractice action

In Siner v. Kindred HospitalLimited Partnership et al., 33 N.E.3d377 (Ind. Ct. App. 2015), the Courtof Appeals affirmed summary judg-ment in favor of a doctor, but notin favor of the hospital defendant.

In response to the doctor’s motionfor summary judgment, the plain-tiff did not designate expert evidence with regard to whether the doctor’s allegedly negligentconduct proximately caused injury.Therefore, the trial court found nogenuine issue of material fact exist-ed and granted summary judgmentin favor of the doctor, which wasaffirmed by the Court of Appeals.However, expert testimony waspresented in response to the hospi-tal’s subsequently filed motion for summary judgment, which theCourt of Appeals determined suffi-ciently addressed the issue of causa-tion and created a factual issue.Thus, the Court of Appeals reversedthe trial court’s grant of summaryjudgment in favor of the hospitaland remanded the case for furtherconsideration. Of note, JudgeKirsch issued a separate opinion,concurring with the majority’sdecision concerning the hospital,but dissenting with regard to thedoctor. In his dissent, Judge Kirshexpressed concern that a singlemember of a Medical Review Panelcould “undermine the work of thepanel of which he was a part by anex parte and conclusory affidavitexecuted months after the factwithout procedural safeguards.” �Curtis T. Jones is a partner at BoseMcKinney & Evans LLP in the firm’s litigation, insurance and appellategroups. While at Valparaiso UniversitySchool of Law, Curtis served as executivesymposium editor for the ValparaisoUniversity Law Review, earned an honors program scholarship, and servedfor a year in an externship with the Hon. Kenneth F. Ripple, U.S. Court ofAppeals, Seventh Circuit. Upon graduat-ing and prior to joining Bose, Curtisserved as a judicial law clerk to JusticeTheodore R. Boehm on the IndianaSupreme Court. His email [email protected].



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In June, the Indiana SupremeCourt issued opinions in sixcivil matters, simultaneously

granting transfer in three of thosecases. The Supreme Court grantedtransfer in three additional civilmatters, all summarized below. The Indiana Court of Appealsissued a total of 61 opinions in civilmatters, including 35 unpublishedopinions (both counts excludingjuvenile cases). Some of the Courtof Appeals published opinions aresummarized below. Full text of allIndiana appellate court decisionsrendered during June, includingthose issued not-for-publication,are available via Casemaker atwww.inbar.org or on the IndianaCourts website, www.in.gov/judiciary/opinions.

SUPREME COURT

Good faith beliefthat taxes have beenpaid is sufficient foradverse possessionclaim; prescriptiveeasement may notbe abandoned without clear intent

In CelebrationWorship Ctr., Inc. v. Tucker, appellantchurch sought declara-tory judgment to iden-tify the boundary linebetween it and theappellee homeowners.26 N.E.3d 1074 (Ind. 2015) (June 29)(Dickson, J., in whichRush, C.J., andRucker, David andMassa, JJ., concur).The homeownersneighbored the eastside of the church,divided by a graveldriveway and grassyarea. The homeownersargued that theyacquired the driveway

and grassy area through adversepossession and a prescriptive easement.

The trial court granted sum-mary judgment in favor of thehomeowners. The Court of Appealsreversed, granting summary judg-ment to the church instead. TheSupreme Court affirmed the trialcourt’s decision, granting summaryjudgment to the homeowners onboth the adverse possession andprescriptive easement claims.

The church argued the home-owners had not satisfied therequirements of either adverse pos-session or a prescriptive easement.Specifically, the church argued the homeowners did not meetIndiana’s statutory tax paymentrequirement for adverse possession.The homeowners alleged they paidtaxes on land they believed includ-ed the grassy and gravel areas inquestion. The church maintainedthat, while homeowners may havebelieved they paid taxes on theareas in question, they did not actu-ally do so. The Indiana SupremeCourt held that the homeowners’good faith belief they were payingfull taxes on the areas was sufficientfor the tax payment requirement ofadverse possession. The Court alsoheld there was no genuine issue ofmaterial fact that the homeownershad met the common law require-ments for adverse possession: con-trol, intent, notice and duration.The church could bring no evi-dence to dispute that appellee’sfamily had controlled the land for more than 30 years.

For the prescriptive easementclaim, the homeowners presentedevidence that the gravel drivewaywas the only way to access theirhome’s previous garage, whichstood for at least 30 years. Some-time afterward, the homeownersreplaced their garage with one fac-ing a different direction, makingthe gravel driveway no longer nec-

essary as the only path. The churchdid not dispute that the homeown-ers used the driveway for at least 20years as is required for a prescrip-tive easement, but instead arguedthe easement was no longer neces-sary. The Indiana Supreme Courtheld that an easement cannot beabandoned without a showing ofintent to abandon and a lack of use.

Because the requirements weremet for both the prescriptive ease-ment and adverse possession claim,the Court affirmed summary judg-ment for the homeowners on bothclaims.

Unknown identity is not a ‘mistake’ that allows amend-ment to add unnamed partyunder Indiana Trial Rule 15(C)

The appellants in Miller v.Danz filed complaints, allegingdefamation and invasion of privacyagainst multiple parties, including“John Doe #8.” 27 N.E.3d 774 (Ind. 2015) (June 29) (Dickson, J.,in which Rush, C.J., and Rucker,David and Massa, JJ., concur). Theylater requested leave to amend theircomplaint to identify John Doe #8as Kristine C. Danz, who moved forsummary judgment, arguing thatleave to amend would be improperbecause the two-year statute of lim-itations had passed. The trial courtgranted the motion, and the Courtof Appeals affirmed.

On transfer, both parties basedtheir argument on the IndianaRules of Trial Procedure. Rule17(F) allows amendment “at anytime” to add the true name of apreviously unknown party when itis discovered. Rule 15(C)(2) allowsthe amendment to “relate back” to the date of the original pleading(therefore bypassing the statute of limitations) if the party beingbrought in “knew or should haveknown that but for a mistake con-cerning the identity of the properparty, the action would have been

REC

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Appellate civil case law updateBy Kathy L. Osborn and Melody M. Bledsoe


Melody M. BledsoeSummer Associate

Faegre Baker Daniels LLPIndianapolis, Ind.

Kathy L. OsbornFaegre Baker Daniels LLP


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brought against him.” The Millersargued summary judgment wasimproper because a lack of knowl-edge of the party’s identity isincluded in the circumstancesunder Rule 15 (C)(2). Danzresponded that Rule 15(C) does notcover such a situation. Observingthis to be a matter of first impres-sion, the Indiana Supreme Courtaffirmed the trial court’s decision.

The Court disagreed with bothparties’ arguments and held thatRule 15(C) does not cover the samesituations as Rule 17(F) and there-fore cannot supersede it. The Courtreasoned that Rule 15(C) is usedwhen there has been a mistake as tothe proper party, where Rule 17(F)addresses when the party’s identityis unknown. If the Millers did nothave knowledge of Danz’s identity,they did not make any “mistake”and would be able to add Danz by amendment at any time regard-less of any statute of limitations.However, the Court also deter-mined the Millers did in fact haveknowledge of Danz’s identity beforefiling their complaint. Anotherparty had given the Millers thename of Danz’s husband and identified Danz’s workplace. TheMillers therefore had actual knowl-edge of Danz’s existence and proba-ble knowledge of her identity.Because of this knowledge, theCourt held the Millers were notable to use Trial Rule 17(F) andamend their complaint to add Danz as a named party.

Indiana statute barring personspreviously convicted of childneglect from adopting childrenis constitutional

A maternal and paternalgrandmother both petitioned toadopt two children previouslyremoved from their parents afterpositive drug test results. B.B. v.B.C. (In re I.B.), 19 N.E.3d 784(Ind. 2014) (June 11) (Rush, C.J.,

in which Dickson, Rucker, Davidand Massa, JJ., concur). The trialcourt allowed the maternal grand-mother and her fiancé to adopt the children due to the flexibility of her employment schedule and a recommendation from both the Department of Child Services(DCS) and the Court AppointedSpecial Advocate (CASA). One of the children had mobility and

speech impediments but hadimproved greatly while in thematernal grandmother’s care.Additionally, the maternal grand-mother had already adopted thechildren’s other two siblings in anuncontested proceeding, and allfour siblings shared a close relation-ship. The paternal grandmother’s



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work schedule would be muchmore difficult for raising the chil-dren, and both DCS and CASAexpressed a number of concernsabout her ability to care properlyfor the children. Most notably, thepaternal grandmother had failed tocontact law enforcement when thechildren’s father severely abusedtheir mother. It was noted at trialthat the maternal grandmother wasconvicted of child neglect, a Class Dfelony, more than 15 years ago forfailing to report when her ex-hus-band molested her daughter. Evenso, DCS and CASA believed thematernal grandmother would provide better care.

The paternal grandmotherappealed, arguing the maternalgrandmother should have beenineligible to adopt the childrenbecause of Ind. Code §31-19-11-1(c)(15), which prohibits adoptionby felons convicted of child neglect.The maternal grandmother andDCS argued that the statute inter-

fered with due process rights bypreventing the “best-interest analy-sis” that is appropriate in adoptiondisputes. The Court of Appealsaffirmed and held that the statutoryprovision was unconstitutionalunder the “irrebuttable presump-tion” analysis, which prevents aninterference with “interests thatenjoy constitutionally protectedstatus.” The Indiana SupremeCourt reversed and held the statute was constitutional.

First, the Court stated that theUnited States Supreme Court nolonger uses the “irrebuttable pre-sumption” analysis. It also observedthat the statute would still standeven under such an analysisbecause the determination of a child’s best interests is not a fundamental right protected by the United States Constitution. TheCourt then explained that the U.S.Supreme Court now determines if astatute is invalid by a “classificationanalysis” that determines how well

the classification serves its policy-based purpose. Since felons are nota protected class, and there is nofundamental right to adopt, theclassification need only be “ratio-nally related to legitimate legislativegoals.” Chief Justice Rush declaresthe distinction between child-neglect felons and non-felonsacceptable under this standardbecause it is “rationally related tothe legitimate legislative goal ofensuring that children will not beadopted into a neglectful home.”

Noting that the circum-stances may have changed since theinitial decision in 2013, the Courtreversed and remanded the case to the trial court in order for it todetermine the appropriate homefor the children.

Evidence of insurance coverage limit may be relevantto determination of damages

In State Farm Mut. Auto. Ins.Co. v. Earl, appellee’s husband, Mr. Earl, was riding a motorcyclewhen he was injured in a hit-and-run accident with a tractor-trailer. 3 N.E.3d 1009 (Ind. 2015) (June 9)(Massa, J., in which Rush, C.J., andDickson, Rucker and David, JJ.,concur). He filed a claim with his insurer, appellant State Farm,which offered up to $250,000 coverage per person. State Farmrefused to pay the full amount, so Mr. Earl sued for breach of theinsurance contract, and Mrs. Earlbrought a separate claim for loss ofconsortium. Mr. Earl died duringthe course of litigation, and Mrs.Earl became the plaintiff for hisclaim.

At trial, State Farm admittedliability and only disputed theamount owed to Earl. State Farmmoved to exclude the maximumamount of coverage as evidence,but the trial court denied themotion. The jury awarded Mrs. Earl$175,000 on her husband’s breach



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of contract claim and $75,000 onher loss of consortium claim, whichhappened to total $250,000, thesame as the maximum amount ofcoverage. On appeal, State Farmalleged that the trial court inter-fered with its substantial rights byallowing admission of the coveragelimit as evidence. The Court ofAppeals reversed and remanded,stating the limit was irrelevant tothe question of damages and couldhave affected the jury’s decision.

On transfer, State Farm askedthe Indiana Supreme Court to holdthat coverage limits are irrelevantand therefore always inadmissibleas evidence for a determination of damages while Earl argued thatlimits are always relevant as a partof the contract and therefore alwaysadmissible. The Court declinedboth theories and held that the trialcourts must be able to determinethe relevancy on a case-by-casebasis.

Acknowledging that theamount of maximum coverage is not related to the insurance company’s fault, the Court citedMcFarland v. State, 390 N.E.2d 989,993 (Ind. 1979), in which it heldthat evidence may be relevant evenif it only provides backgroundinformation for the jury. The Courtreasoned that since the underlyingclaim was breach of contract of aninsurance policy, the coverage limitof the policy was relevant informa-tion that could help the jury under-stand the situation. Regarding StateFarm’s argument that evidence ofthe coverage limit caused unfairprejudice in the eyes of the jury, the Court cited Indiana EvidenceRule 403, which states that the probative value of evidence mustnot be outweighed by its potentialto cause unfair prejudice.

The Court held that in this spe-cific case it was more likely that thejury fairly evaluated Mr. Earl’s painand suffering before deciding he

should be awarded the maximumamount of coverage. However, the Court recognized that in somecircumstances, such as when theinjuries are minor and the limit isgreat, the probative value of thatevidence might not overcome the potential for unfair prejudice.This led the Court to affirm thetrial court’s decision by holdingthat the coverage limit was relevantin these circumstances.

Compliance with statutoryrequirements is sufficient for duty of care in negligenceclaim absent showing of additional duty

The Kramers adopted a new-born child with the help of appelleeCatholic Charities, an organizationthat connects mothers with poten-tial adoptive parents. Kramer v.Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc.,

6 N.E.3d 984 (Ind. 2015) (June 3)(Massa, J., in which Rush, C.J., and Rucker and David, JJ., concur;Dickson, J., dissents with separateopinion). Thirty-one days after thechild was born, Catholic Charitiesrequested a check of Indiana’sputative father registry, as it wasrequired to do under Ind. Code.§31-19-5-15(b). The check revealeda registered potential father whothen contested the adoption, andthe Kramers lost custody of thechild. The Kramers sued CatholicCharities, alleging negligence fornot checking the registry beforepairing them with the child.Catholic Charities moved for sum-mary judgment on the grounds that(1) agreements between the partiesprevented the Kramers from suingfor negligence, and (2) its only dutywas the statutory requirement to


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check the registry once 30 days after the birth of the child.

The trial court granted summary judgment for CatholicCharities. The Court of Appealsreversed, stating the parties’ agree-ments did not waive a negligenceclaim and Catholic Charities mayhave had a duty of care greater than the statutory requirement.

On transfer, Catholic Charitiesmaintained that it met its only dutyof care by complying with the rele-vant statute. The Kramers arguedCatholic Charities owed an addi-tional duty to check the registrybefore placement with a potentialadoptive family because it had anunwritten policy of doing so and aduty to inform them of the failureto follow the policy because theparties were in a fiduciary relation-ship. The Indiana Supreme Courtaffirmed the trial court’s decisionand held that, while it is possiblefor an agency to owe an additionalduty of care, the Kramers did notmeet their burden of proving such a duty existed.

The Court first explained that compliance with a statutory

standard is sufficient evidence for summary judgment purposes.Therefore, the Kramers would haveto show there was a genuine issue asto whether Catholic Charities owedthem an additional type of duty.Even though the organization hasan unwritten practice that it failedto follow with the Kramers, theCourt’s decision in Wal-MartStores, Inc. v. Wright, 774 N.E.2d891 (Ind. 2002) stated that suchpractices “may be established forany number of reasons havingnothing to do with … ordinarycare” and therefore cannot solelyestablish the relevant standard ofcare. In regard to their fiduciaryrelationship, the Court found that three factors weighed equallyin favor of both parties: (1) therelationship between the parties, (2) the reasonable foreseeability of harm to the injured party, and (3) the relevant public policyconcerns.

Although the parties were in aprincipal-agent relationship subjectto additional duties, their agree-ments did not impose a duty onCatholic Charities to disclose when



it did not comply with its ownunwritten policy. The potentialharm to the Kramers of discoveringthey did not have custody of theiradopted child was foreseeable to the organization, but public policyequally favored both sides. Sinceadoption agencies are already sub-ject to a great deal of regulation, theCourt was hesitant to impose addi-tional responsibilities upon them.However, it would not be particu-larly burdensome on this specificagency because it was already con-ducting the additional checks inaccord with its internal require-ment.

Because the factors did notweigh in favor of the Kramers, they could not sufficiently show a possibility that Catholic Charitiesowed more than the statutory duty of care. The Indiana SupremeCourt affirmed summary judg-ment in favor of the organization.Justice Dickson dissented, arguingthe proper duty of care depends on what was reasonable under the specific circumstances andtherefore should be addressed at trial rather than on summaryjudgment.

Indication that physician was supervisor in charge on date of alleged negligenttreatment may be sufficient to survive summary judgment

After delivering her son still-born, Stafford filed a medical mal-practice complaint with the IndianaDepartment of Insurance. Staffordv. Szymanowski, 31 N.E.3d 959(Ind. 2015) (June 2) (Dickson, J., in which Rush, C.J., and Rucker,David and Massa, JJ., concur). The complaint alleged the negli-gence of the physicians and clinicthat provided her prenatal carecaused personal injury to Staffordand the wrongful death of her child.


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A medical review panel issued a unanimous decision that thehealthcare providers met their stan-dard of care. Stafford then filed acivil suit against the physicians andclinic. The providers filed a motionfor summary judgment, allegingthere was no genuine issue of mate-rial fact as to their negligence dueto the medical review panel’s deci-sion. The trial court issued summa-ry judgment in favor of the physi-cians and clinic, agreeing there wasno genuine issue of material factthat they provided adequate care.The Court of Appeals affirmed.

On transfer, Stafford arguedsummary judgment was improperbecause her expert witness, anotherphysician, testified that the health-care providers failed to use appro-priate standards of care in a num-ber of ways. Stafford also arguedthat the clinic was liable for the actsof the physicians under a principal-agent theory. The providers

responded that the witness’ testi-mony contained only generalizedallegations and therefore was notsufficient to find fault in any specif-ic physician. The Indiana SupremeCourt affirmed the trial court’ssummary judgment decision for the clinic, but reversed sum-mary judgment for the physician,Dr. Szymanowski.

The Court held the expert testimony was sufficient to show a genuine issue of material fact as to Dr. Szymanowski’s standard ofcare. Although the expert’s testimo-ny did not associate any specificphysician with each incident ofalleged breach of care, the expertdid identify Dr. Szymanowski as theattending physician and supervisoron the days in question.

The Court also held that theclinic was not vicariously liable forthe physician’s actions because theevidence was insufficient to provethe physician was an agent of the

clinic. Stafford attempted to provethis theory with a document fromthe Indiana Secretary of State’swebsite that listed one of the physi-cians as an agent of the clinic, aswell as her medical records listingthe physicians under the clinic’slogo. However, the Court affirmedthe trial court’s analysis that thisevidence was uncertified and there-fore inadmissible. Because Staffordcould not prove the clinic should beliable for Dr. Szymanowski’s allegednegligence, the Court affirmedsummary judgment for the clinic.

TRANSFER ORDERS

• Hewitt v. Westfield Wash. Sch. Corp., 24 N.E.3d 459 (Ind. Ct. App. 2014) (Bailey, J.) transfergranted June 16 (holding there wasa genuine issue of material fact as to whether a school principal wasdenied procedural due process and contractual rights when terminated).



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• McNamara v. Zollman Farms,Inc., 26 N.E.3d 1073 (Ind. Ct. App.2015) (Crone, J.) transfer grantedJune 11 (holding the trial courterred in finding that appellants did not establish the existence of a public road by use).

• Kieara R. Carter v. RoseVaisvilas, et al., No. 61A04-1411-PL-561 (Ind. Ct. App. 2014,unpublished order), transfer grant-ed and appeal dismissed withoutprejudice June 5 (pro se filingagainst the prison health service).

SELECT COURT OF APPEALS CASES

Witness affidavits must be sufficiently detailed in order to show mental incompetence

Whitlock, an employee of SteelDynamics, suffered a head injuryfrom a crane that failed to stop.Whitlock v. Steel Dynamics, Inc.,35 N.E.3d 265 (Ind. Ct. App. 2015)(Vaidik, C.J.).* A CT scan showedthere was no concussion or majorbrain injuries. Two years later,Whitlock filed a complaint against Steel Dynamics, alleging the employer’s faulty crane switchcaused the injury. Whitlock filedhis complaint eight days after thetwo-year statute of limitationsexpired.

At trial, Whitlock argued thestatute of limitations did not bar hiscomplaint because he was “mental-ly incompetent” for a period afterthe injury. Mental incompetence is a disability included in Ind. Code§34-11-6-1 that allows a person tobring a cause of action within twoyears after the disability is removed.As evidence, Whitlock submittedaffidavits by his wife and mother-in-law, describing his disorienta-tion after the incident. SteelDynamics argued that whileWhitlock did sustain injuries, they were not sufficient to extendhis statute of limitations. The trial

court agreed with Steel Dynamicsand granted summary judgment.On appeal, Whitlock argued theaffidavits from his wife and moth-er-in-law sufficiently show hismental incapacitation for purposesof the statute.

The Court of Appeals affirmedsummary judgment for SteelDynamics. The court explained thatunder Indiana Evidence Rule 701affidavits from non-expert witness-es must be (a) rationally based onthe witness’ perception, and (b)helpful to a clear understanding ofthe witness’ testimony or to a deter-mination of a fact in issue. In orderto fulfill these requirements, affi-davits must not simply offer opin-ions and tell what the court shouldfind, but instead provide a basis for each opinion so the court mightcome to the same conclusion. InWhitlock’s affidavits, the witnessesstated he was “disoriented and

incoherent” and “not all there,” but did not explain these behaviorsin detail, give specific instances or note how long they lasted. The court held that because theaffidavits were merely conclusorystatements, they were not sufficientto prove mental incompetence sufficient to forgive Whitlock’s late filing.

First recorded mortgage lienstake priority over all otherproperty interests except for removable improvements

In 2008, appellant Wells Fargorecorded a mortgage lien obtainedover Woodmar Shopping Centerafter providing its owner with arefinancing loan. Wells Fargo Bank,N.A. v. Rieth-Riley Constr. Co., 2015WL 3956137 (Ind. Ct. App. 2015)(Baker, J.).* Woodmar defaulted on the loan in April of 2011.



RG 10.15_RG 09.05 10/15/15 10:03 AM

In February of 2012, appellee Rieth-Riley executed a mechanic’s lien against Woodmar after notreceiving payment for parking lotimprovements completed the previ-ous year. After not receiving pay-ment a year later, Rieth-Riley filed a breach-of-contract claim againstWoodmar, also naming WellsFargo as a defendant to establishpriority over the mortgage lien.Wells Fargo cross-claimed againstRieth-Riley and counterclaimedagainst Woodmar, alleging themortgage lien should be satisfiedfirst because it was recorded first.Both parties moved for summaryjudgment, asking for a judgmentagainst Woodmar in which its own lien would be satisfied first.

The trial court granted WellsFargo’s motion and ordered Wood-mar to sell the property with pro-ceeds first satisfying the mortgagelien. The court also gave WellsFargo an option to bid on the prop-erty with the judgment amountcredited to its bid. However, thetrial court also granted summaryjudgment in favor of Rieth-Rileyfor its contract claim againstWoodmar and stated Rieth-Rileywas entitled to priority payment of any proceeds from the sale ofimprovements made to the parkinglot. Since Wells Fargo’s lien tookpriority, Wells Fargo was orderedto make a cash deposit of part ofany bid it made on the property to ensure there would be funds left for Rieth-Riley’s judgment.

On appeal, Wells Fargo disput-ed the trial court’s order for it todeposit part of its bid on the prop-erty in cash. The Court of Appealsaffirmed the trial court’s order,allowing Rieth-Riley to sell itsimprovements, but reversed theorder for Wells Fargo to place part of its bid in cash.

The appeals court noted that inIndiana mortgage liens are superiorover mechanic’s liens as long as

they are recorded before themechanic’s work is finished. Thecourt further stated that becausethe mortgage lien takes full priority,the trial court erred in orderingWells Fargo to deposit cash for part of its bid on the property. With regard to the improvements,the mechanic’s lien statute, Ind.Code §32-38-3-1, allows the lien-holder to sell the improvements to satisfy the lien. The court heldthat Rieth-Riley could remove theimprovements made to the parkinglot to the extent that it would notsubstantially impair the value of theland. However, the court reversedthe trial court’s order for WellsFargo to deposit part of its bid incash because Rieth-Riley is notentitled to any proceeds from thesale unless Wells Fargo’s mortgagelien is satisfied.

Strict liability does not apply to pigs

A group of children visited a pig’s pen while at appellee’sYMCA camp. Gruber v. YMCA ofGreater Indianapolis, 34 N.E.3d 264(Ind. Ct. App. 2015) (Vaidik, C.J.).An 11-year-old boy was watchingthe pig from less than arm’s lengthaway when the pig lunged at him,stuck its head through the bars and bit his hand.

The boy’s parents, appellants,filed a claim of negligence againstthe YMCA, alleging there was agenuine issue of fact as to whetherthe pig was a domesticated animaland the camp knew or should haveknown that the pig had naturaldangerous propensities. The YMCAfiled a motion for summary judg-ment, denying these claims. Thetrial court granted summary judg-ment for the camp and held thatIndiana Code §15-17-2-26 includespigs in its definition of a domesti-cated animal, and that the parentsfailed to show pigs had any danger-ous propensities to bite about

which the camp should haveknown.

On appeal, the parents concededpigs are domesticated animals, but argued that the court shouldadopt a strict-liability standard fordomesticated animals other thancats or dogs because they mightpose an abnormal risk. They rea-soned that pigs are different frompets that provide companionship.Refusing to adopt this new stan-dard, the Court of Appeals affirmedthe trial court’s decision. The courtexplained that the dangerous-propensities standard has alwaysapplied to all domesticated animals,and the parents did not provide acompelling reason to impose strictliability on these animals instead. �* Asterisked cases are those in which theauthors’ firm, Faegre Baker Daniels LLP,represented one or more of the parties.

Kathy L. Osborn is a partner at FaegreBaker Daniels and practices in the areasof business, antitrust and appellate litigation. She is a three-time graduate of Indiana University, B.S. Biology,magna cum laude, B.A. ReligiousStudies, summa cum laude, and J.D.with Gender Studies minor, magna cum laude. After graduating from I.U.Maurer School of Law, she served as a law clerk in the Indiana Supreme Court to former Associate Justices Frank Sullivan Jr. and Myra C. Selby.Contact Kathy at 317/237-8261 or [email protected].

Melody M. Bledsoe was a 2015 summerassociate at Faegre Baker Daniels LLP.She is a second-year student at I.U.McKinney School of Law and a graduateof Indiana University Purdue UniversityFort Wayne, B.A. (Psychology).



RG 10.15_RG 09.05 10/15/15 10:03 AM

Statements of the issues arethe first substantive part of abrief that the reader will see.1

As such, a well-drafted issue state-ment can set the tone for what’s to come. Unfortunately, so can a poorly drafted issue statement.

For fact-sensitive arguments, a well-drafted issue statement con-tains two components: a legal com-ponent and a factual component.Practitioners almost always recog-nize the need for the legal compo-nent but often omit critical factualinformation from the issue state-ment. Adding this informationgives the reader critical context in the first section of your brief.

In my nine years clerking for a judge on the Indiana Court ofAppeals, I have observed practi-tioners mainly use one of twoapproaches to presenting thesecomponents. The most commonapproach is the use of a “whether”statement. The second most com-mon approach is the use of a multi-sentence syllogism, as advocated bylegal writing expert Bryan Garner.2

This article will review these twoapproaches, some pros and cons ofeach, and suggest when to preferone approach over another.

‘Whether’ statements“Whether” statements are the

bread and butter of writing issuestatements. The basic structure isstraightforward: “Whether [legalissue] when [critical facts].”3 Forexample, in a breach-of-contractappeal, the appellant might statethe issue as follows:

Whether a breach of contractoccurred when the insurer declinedto pay the insured’s claim for a lossrelating to the value of certain real-property documents because theclaim arose from the insured’s own mistake in valuing those documents.

This structure gets the legalissue immediately in front of thereader, namely, the alleged breachof contract. And it tells the readerthe critical facts: the contract is an insurance contract; the insurerdenied the claim; and the claimarose from the insured’s own mistake in valuing real-propertydocuments.

Pros of a ‘whether’ statement

• It conforms to the expecta-tions of legally trained readers and is easy to read.

• It gets to the point and pre-sents key legal issues and facts to the reader as soon as possible.

• It keeps party references neu-tral, which avoids reader confusionbecause the reader does not typical-ly yet know who is who.

• It forces the writer to thinkcritically about the most essentialparts of the argument.

Cons of a ‘whether’ statement

• It is formalistic, which canforce the writer to trade importantinformation for the sake of follow-ing the formula.

• It is not a grammatically correct sentence.4

• It can be too to the point. If you value getting a theme or asense of your client’s story in frontof the reader as soon as possible,you will often find this structurelimiting.

• It can result in an overly broadsense of the issue.

• It can get unwieldy if you havenumerous critical facts.

Multi-sentence syllogisms

This approach is not nearly ascommon as “whether” statements.The essence of this structure is thesyllogism, that is, three sentencesconsisting of a major premise, a minor premise and a conclusion.Following up on our earlier breach-of-contract example, such anapproach might look like this:

Firemen’s Insurance Companyinsured USAT against losses occa-sioned by real-estate documents thatare “defective by reason of the signa-ture thereon of any person havingbeen obtained through trick, artifice,fraud, or false pretenses.” USAT pur-chased mortgages from a third partywho fraudulently represented themortgages to be worth substantiallymore than they were worth. Does themere fact that the mortgages wereworth less than USAT thought meanthat the sale documents were “defec-tive” by reason of the signature?5

The multi-sentence approachallows for the presentation of moredetail and does so using a syllogisticstructure with which legally trainedreaders are familiar. The first sen-tence (the major premise) states thecontract language at issue. The sec-ond sentence (the minor premise)states the key facts. And the thirdsentence (the conclusion) presentsthe essential issue: whether theinsured’s mistaken belief regardingthe value of the mortgages invokescoverage under the contract. Also, notice how this approach uses party identities but makes sure

WORDWISE

Statements of the issues: pros & cons of two leading approaches

By Jonathan B. Warner


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to demonstrate their legal relation-ships so that the reader isn’t leftwondering who is who.

Pros of a multi-sentence syllogism

• It allows for a more naturalread by using multiple sentences.

• It allows for storytelling,including a theme and your client’spoint of view.

• It emphasizes the “deep issue”6

or essential question that the courtmust address.

Cons of a multi-sentence syllogism

• It is not common and is there-fore potentially disorienting to thereader.

• It can be cumbersome to read.

• It can cause the reader toread the statement multiple timesbecause it ends with the issue rather than leads with it.

• It can read as argumentative,contrary to potentially applicablerules.7

• It is often seen in connectionwith party identities, which, if notdone carefully, could confuse thereader, who isn’t likely to knowwho is who in the first paragraph of your brief.

ConclusionBoth approaches have merit.

Which you choose for a client in a given situation depends on a care-ful assessment of what the facts andissues of your client’s case are, whatyour reader expects, and what yourcomfort level is with a particularstructure. As a general rule, use a “whether” statement, especiallyfor simpler fact patterns and issues.This gets critical legal and factualinformation to the reader as soonas possible and is more likely toconform to the reader’s expecta-tions, which lends the structurepersuasive value. However, for

more complicated scenarios, the “whether” statement can beunwieldy, and attempting to fitcomplex facts into that formula can lead to confusion rather thanclarity. Thus, for more complicated scenarios, consider the multi-sentence syllogism. �1. See Ind. Appellate Rule 46(A)(4) (requiring

statements of issues to “concisely and particu-larly describe each issue presented forreview”). In an appellate brief, stating yourpoint headings in your table of contents isyour first opportunity to persuade the reader.See App. R. 46(A)(1).

2. Bryan A. Garner, The Winning Brief: 100 Tipsfor Persuasive Briefing in Trial and AppellateCourts 55 (2d ed. 2004).

3. See Linda H. Edwards, Legal Writing andAnalysis 176 (3d ed. 2011).

4. One way to avoid a grammatically incorrect“whether” statement is to turn the statementinto a question that starts with “Did,” “Is,”“Does,” etc., and ends with a question mark.

5. This example is a modified version of anexample from Garner, supra note 2, at 69.

6. Id. at 56.

7. See, e.g., U.S. Sup. Ct. R. 14.1(a).

Jonathan B. Warner, [email protected], is a lecturer at I.U.McKinney School of Law and seniordeputy clerk to the Hon. Edward W.Najam Jr. of the Indiana Court ofAppeals. The views in this article are the author’s and not on behalf of Judge Najam or the Court of Appeals.

SCOTUS group admissionapps being accepted

Your Association makes arrange-ments for the admission ceremony,

a breakfast, a group picture and a tour ofthe facility. The next group swearing-inceremony for Hoosier lawyers is sched-uled for March 28. Our group will get to observe an oral argument before theCourt on that day.

It is assumed that all applicationswill be approved. The ISBA cannot beheld responsible for any cost you mayincur in arranging for travel to the cere-mony if the Supreme Court denies ordelays your application.

Each attorney is encouraged to makehis or her own travel and hotel arrange-ments. The cost for the application is$200, and there is an additional cost ofapproximately $40 for a group pictureand breakfast in one of the Court’s din-ing rooms. Return your application alongwith a certificate of good standing fromthe Indiana Supreme Court to the ISBA,Attn: Susan Jacobs, One Indiana Square,Suite 530, Indianapolis, IN 46204 no laterthan Feb. 29. At this time, do not sendany payment. For an application, contactChauncey Lipscomb, [email protected] or 800/266-2581. �


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In addition to litigation and dispute resolution services, Guy also serves as an expert witness in legalmalpractice and cases relating to insurance claims.

Guy is a native Hoosier and alumnus of Indiana University. He is a member of the Indiana and California bars, and certified in Civil Trial & PretrialPractice Advocacy by the National Board of Trial Advocacy.

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RG 10.15_RG 09.05 10/21/15 11:55 AM

In June, the Indiana SupremeCourt issued opinions on pro-bation searches, use of perjured

testimony, and extrinsic evidence ofprior inconsistent statements, whilethe Court of Appeals decided casesinvolving sufficiency of evidenceclaims, restitution and the “newcrime” exception to the exclusion-ary rule.

Warrantless, suspicionless probation searches as a result of advance consent or conditionof release

In State v. Vanderkolk, 32N.E.3d 775 (Ind. 2015), the IndianaSupreme Court held that proba-tioners or community correctionsparticipants who have consented orbeen clearly informed that the con-ditions of their release unambigu-ously authorize warrantless andsuspicionless searches may there-after be subject to such searchesduring the period of their proba-tionary status. The Court notedthat home detention placementunder either probation or a com-munity corrections program(which does not call for differingtreatment in this context) is “a mat-ter of grace and a conditional liber-ty that is a favor, not a right.” Id. at777 (citing Cox v. State, 706 N.E.2d547, 549 (Ind. 1999)). But a proba-tioner’s status as a community cor-

rections participant,standing alone, doesnot authorize a war-rantless and suspicion-less compliance searchby community correc-tions officers. Id. at777-78.

In this case,Brishen Vanderkolk’sroommate, who wason home detention inTippecanoe County,consented to commu-nity corrections staff,law enforcement or

probation officers to enter his resi-dence and search without noticeonly upon probable cause, whichwas wholly lacking in this case. Id.at 778. Thus, all evidence seizedfrom the community correctionsofficers’ compliance search was theresult of an improper home entryand search in violation of theFourth Amendment. Id. at 780. The Court did not address whethera suspicionless probation searchconducted pursuant to a conditionof probation would violate Art. 1,§11 of the Indiana Constitution.

State’s use of perjured testimony did not violate due process

Antonio Smith’s girlfriendpleaded guilty to burglarizing theDollar General store where sheworked, stating she acted alone.The State later charged Smith forthe same crime and offered the girl-friend immunity in exchange forher testimony. At trial, she saidSmith broke into the store whileshe served as an accomplice. TheCourt of Appeals reversed becausethe girlfriend’s testimony constitut-ed perjury under Ind. Code §35-44.1-2-1(a)(2). On transfer, theSupreme Court held that the Statedid not impair Smith’s due processrights because the jury was madeaware of the “discrepancies” in the girlfriend’s testimony andthus was able to “fully function asan informed fact finder.” Smith v. State, 34 N.E.3d 1211, ___ (Ind.2015). In determining whether theState’s use of false evidence war-rants reversal, appellate courtsshould focus on whether the State“impermissibly use[d] false testi-mony to obtain a conviction in vio-lation of a defendant’s due processrights,” rather than consideringonly whether the witness’ testimonywould prove the crime of perjuryunder Ind. Code § 35-44.1-2-1. Id. at ____.

No error in excluding extrinsicevidence of prior inconsistentstatements

Under Indiana Evidence Rule613(b), the requirement that a witness be given an opportunity toexplain or deny a prior inconsistentstatement may be afforded to thatwitness at any point during the proceedings. In Griffith v. State, 31 N.E.3d 965, 972 (Ind. 2015), the Court noted that the preferredmethod of proceeding is still thetraditional method of confronting a witness with his inconsistentstatement prior to its introductioninto evidence. “Despite this pre-ferred method, trial courts are stillgiven broad discretion in excludingor admitting extrinsic evidenceunder rule 613(b) … . [T]rialcourts [are encouraged] to considera variety of relevant factors in mak-ing the determination, such as theavailability of the witness, thepotential prejudice that may arisefrom recalling a witness only forimpeachment purposes, the signifi-cance afforded to the credibility of the witness who is beingimpeached, and any other factorsthat are relevant to the interests of justice.” Id.

In this case, the trial court did not abuse its discretion inexcluding extrinsic evidence ofprior inconsistent statements when Griffith failed to first providethe opportunity to the witness to explain or deny the statementsduring his cross-examination.

Insufficient evidence of conspiracy to commit armed robbery

In Kemper v. State, 35 N.E.3d306 (Ind. Ct. App. 2015), the Court of Appeals reversed GeraldKemper’s conspiracy to commitarmed robbery conviction, wherethe State presented no evidence ofan agreement to commit robbery.An accomplice’s uncontradicted

CRIM

INAL JUST

ICE NOTE

S 6/15

State’s use of perjured testimony, other holdingsBy Jack Kenney


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RG 10.15_RG 09.05 10/15/15 10:03 AM

testimony at trial was that he wasnot aware that Kemper planned on robbing the gas station untilKemper pulled a gun out of hispocket and exited the car. Textmessages between Kemper and the accomplice on the night of therobbery indicated nothing morethan that the two planned to meet.Kemper’s calls to the accompliceafter the robbery in an attempt tohelp him escape likewise did notindicate the existence of a prioragreement. Finally, the accom-plice’s guilty plea to conspiracycannot be considered as substantiveevidence of Kemper’s guilt. SeeBerridge v. State, 168 Ind. Ct. App.22, 340 N.E.2d 816, 822-23 (1976).

Disorderly conduct – unreasonable noise; violation of right to speak

In Jordan v. State, No. 49A04-1410-CR-467 (Ind. Ct. App. June25, 2015), the Court of Appealsreversed Lakisha Jordan’s convic-tion for disorderly conduct becauseher comments to police constitutedfree speech under the IndianaConstitution and did not inflictparticularized harm on any privateinterests. During a traffic stop,Jordan was belligerent toward apolice officer and yelled at him afterhe asked if she had any weapons inthe car. She questioned if she wasbeing pulled over because she wasblack. Another officer responded to the scene, and the car was towed.Jordan refused to leave the scene,and after continuing to yell at theofficers, they decided to arrest her.Id., slip op. at 2-4.

The court held that Jordan’soverall complaint and statements to police were critical of them, andthus her speech was political. TheState failed to prove that the state-ments and Defendant’s shouting –which caused people in the area topay attention to the situation – roseto the level of anything beyond a

“fleeting annoyance.” Id. at 14. TheState likewise failed to demonstratethat the speech “amounted to apublic nuisance such that it inflict-ed particularized harm analogousto tortious injury on readily identi-fiable private interests.” Id.

However, the court affirmedJordan’s conviction for resisting lawenforcement under Ind. Code §35-44.1-3-1, noting that “even a mod-est exertion of strength, power, orviolence” that impedes an officer inthe exercise of his duties is enoughto satisfy the element of force. Id. at 17 (quoting Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013)).

Failure to pay restitution before end of probation –inability to pay

In Mauch v. State, 33 N.E.3d387 (Ind. Ct. App. 2015), the trialcourt abused its discretion byrevoking 76-year-old GeraldMauch’s probation after findingthat he knowingly, intentionallyand willfully failed to pay restitu-tion because he did not apply forand take out a reverse mortgage on

his home, an asset that could satisfythe $92,545 balance. Mauch met hisburden to show his inability to payand bona fide efforts to pay, as hecould not obtain a reverse mortgageon his home due to his wife’srefusal to consent. Id. at 379. Inaddition, Mauch suffers from sever-al health issues that impact his abil-ity to get a job. Id. at 391. Thus, the trial court erred in revokingMauch’s probation and in orderinghim to serve his previously sus-pended 3-year sentence in theDepartment of Correction.

‘New crime’ exception to exclusionary rule appliesunder Indiana Constitution

In affirming C.P.’s juveniledelinquency adjudication, theCourt of Appeals recognized the“new crime” exception to theFourth Amendment’s exclusionaryrule and also found it applies equal-ly to the Indiana Constitution. SeeC.P. v. State, No. 49A02-1411-JV-789 (Ind. Ct. App. June 23, 2015).C.P., who was wearing saggy pants


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and cursing, was illegally seizedwhen an off-duty uniformed policeofficer working security for achurch festival twice put his handon the juvenile’s shoulder to steerhim off church property. Id., slip op. at 3. However, despite theillegal seizure, evidence that C.P.responded by shoving the officerwas admissible because it was a newand distinct crime of battery. Thecourt held that the purpose of theFourth Amendment’s exclusionaryrule – to deter police misconduct –is not advanced by suppressing evi-dence of a new crime committedafter an illegal search or seizure. Id. at 2. In a footnote, the courtacknowledged that the “new crime”exception does not apply to thecrime of resisting law enforcementby fleeing. Id. at 14, n.6 (quotingGaddie v. State, 10 N.E.3d 1249(Ind. 2014), which held that a per-son “is not guilty of resisting lawenforcement by fleeing if the policeorder to stop is unlawful”). �

CRIMINAL JUSTICE NOTEScontinued from page 43

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For more information on LDA, see p. 7 of this issue of Res Gestae.

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STEVE TUCHMAN, IMMIGRATION.Experienced practitioner for statewidereferrals, consultation and co-counselpositions. 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.

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

WORKER’S COMPENSATION.Indianapolis attorney Charles A. Carlockseeks referrals on worker’s compensa-tion cases statewide. Tele., 317/573-5282 or 844/415-1461.

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]

LONG-TERM DISABILITY. AttorneyCharles A. Carlock seeks referrals on claims for long-term disability(ERISA) benefits. Tele., 317/573-5282or 844/415-1461.

SpecialServices

MISSING HEIRS & WITNESSES located, intestate heirs verified.Complete family lineage establish-ment. Mark E. Walker & Company,LLC – Indiana Private Investigator Firm; 800-982-6973;www.MissingHeirsLocated.com

BRAD A . GALBRAITH

Are your clients asking about Florida domicile?

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

239.254.2900 hahnlaw.com

• Florida Bar Board Certified in Wills, Trusts & Estates• Competent Co-Counsel• Author of The Florida Domicile Handbook

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

CARIBBEAN VILLA GETAWAY – 5 bedrooms, 2 floors, private pool,panoramic views of both Caribbean &Atlantic, on Vieques, voted "Best Islandin the Caribbean." Gorgeous undevel-oped beaches, bioluminescent bay, free range horses, Spanish culture, 20-minute flight from San Juan, PR. For rent or sell 1/4, 1/3 or 1/2 undividedownership; titled in Indiana LLC.574/370-2142

OFFICE SPACE: Office & conferenceroom. Very reasonable. Ideal for solopractitioner. 39th & Meridian Streets,Kelly Professional Building, 317/924-1414.

ELDER MEDIATION: A Way to ResolveFamily Conflict, Advanced MediationTraining; Friday, Dec. 11, 9 a.m. to 4:30p.m. Location: NASW-Indiana Chapter,1100 W. 42nd St., Krannert Hall,Indianapolis, IN 46208. Lunch andrefreshments included. NASW or IAMMember $130; nonmember $160.Register online: www.naswin.org;phone: 317/923-9878.

MEDIATION CME/CLE SEMINARS12/4 – Three 2-hr. CME/CLE seminarsin Ft Wayne by Janet Mitchell: MediationTraining Requirement on DomesticViolence (10-12); Gay Clients, Law &Mediation (1-3); and/or Elderly Clients,Law & Mediation (3:15-5:15). $100 perseminar. To register: 260/483-7660,[email protected] orwww.JanetMitchellMediation.com.

Email your classified word ad to Susan Ferrer, [email protected]. You will be billed upon publication. ISBA members: 40¢ per word,$10 minimum; nonmembers: 60¢ per word,$15 minimum; $5 blind-box fee.

Need to sell something?

The least expensive way:

Res Gestae classifieds!

Email your ad to:

[email protected]

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FAIR COMMEN

TMaintaining workplace wellness & mental health: a critical practice for all professionals


Take a moment to evaluate your currentlevel of stress with your job. Did yourblood pressure just rise at the thought of

an upcoming deadline? Or perhaps you felt a pangof annoyance at your boss, client or coworkers?

Almost all professionals have stress in theworkplace. Indeed, in 2012 more than 43 millionAmericans dealt with mental illness, and evenmore dealt with other wellness issues. Numerousstudies show that job stress is the major source ofstress for Americans, and it’s costing business lotsof money each year and affecting workers’ qualityof life. According to a 2015 working paper fromthe Harvard and Stanford Business Schools, healthproblems stemming from job stress can lead tofatal conditions that kill more people each yearthan diabetes, Alzheimer’s or influenza. Peoplehave the greatest impact, particularly at their pro-fessional jobs, when they are working at their best– physically, emotionally and mentally. But whenworkplace stress takes a toll, many Americans findwellness elusive. Few professions or industries areexempt from these struggles.

Many professionals who waver under the pressure of their professional demands copeinstead of thrive. Exercise and healthy eating take a back seat. And family and community can beneglected. Others suffer depression. In the worstcases, professionals adopt destructive copingmechanisms, like substance abuse. The conse-quences can be unfortunate for the professionalsthemselves, their families and employers.

Workplace wellness and mental health areindeed attainable. Here are some tips to beginreducing workplace stress and maintain work-place wellness and good mental health:

1. Get enough sleep. Getting at least 7 hours of sleep a night greatly enhances concentrationand reduces mood problems.

2.Have a plan for consistent exercise and healthyeating. Incorporate time into your workday for a walk. Choose healthier foods for lunch and consider “brown bagging.”

3.Maintain a work-life balance. Find a non-career-related hobby, and enjoy your free time.

4. Find a mentor. Accountability helps.

5. Recognize the warning signs of burnout.

6. Don’t be afraid to ask for help when you need it.

Using these and other methods, many profes-sionals have achieved wellness, and others who’vestruggled have made inspiring comebacks. All pro-fessionals have something to learn from theseindividuals. For that reason, the 2015 class of theISBA Leadership Development Academy hosted a seminar on mental health and wellness in thelegal profession at the fall meeting in French Lickearlier this month.

The seminar helped to raise awareness andopen up discussions about the importance of well-ness. It highlighted the dangers of neglecting one’swork-life balance, and it offered stories of thosewho’ve learned how to attain true wellness.

The class project did not end at the AnnualMeeting. The seminar was recorded and will bereplayed throughout the state with LDA classmembers in attendance to introduce the sessions.Please contact the ISBA ([email protected] or800/266-2581) to inquire about hosting a replay in your community. The class hopes this will stimulate conversations about wellness amongattorneys and judges across the state. �– Freedom S. Smith, Indianapolis, Justin R. Olson,Indianapolis, and Rhea M. Jones-Price, Vincennes,ISBA Leadership Development Academy Class 4members

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res gestae - october 2015

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