Comments Due Soon! Proposed Appellate Rule Change – Citation of Memorandum (Unpublished) Opinions 

As shown below, the proposed amendment to Appellate Rule 65(D) would allow citation of memorandum (unpublished) decisions as persuasive authority.

 
All memorandum decisions have been accessible online since 2006, but Rule 65(D) prohibits citation of these relevant and helpful decisions while lawyers are free to cite all sorts of less relevant authority from other states or sources.  

2013 Rule Proposal 
The Appellate Practice Section has urged modernization of the rule for the past decade. In 2013 the Section, with support of other sections and the IndyBar Board, proposed amending the rule with similar wording to the current proposal. As support, the Section surveyed members of the Appellate Practice, Criminal Justice, and Litigation sections. The vast majority of those surveyed responded that they occasionally (64.4%) or frequently (16.4%) encounter “a situation where the most helpful authority was not-for-publication opinion from the Indiana Court of Appeals.” Nearly 80% believed the prohibition on citing memorandum decisions should be amended.

The proposed amendment was posted for comment by the Supreme Court but ultimately not adopted. In the years since, the Section has filed amicus briefs in two cases addressing concerns with existing practices. 

Clarity Needed
In Matter of Civil Commitment of A.M., 116 N.E.3d 496 (Ind. Ct. App. 2018), transfer granted, 127 N.E.3d 217 (Ind. 2019), the Appellee cited memorandum decisions, which the Court of Appeals ordered stricken in response to the Appellant’s motion to strike. The Court of Appeals then cited those same memorandum decisions in its published opinion, noting the issue had “been a recurring issue in this trial court” and that some other panels had found litigants in “the following memorandum decisions” had waived the issue by failing to timely object Id. at 501 n.4. The Section’s amicus brief emphasized the general desire for consistency and clarity in litigation. It requested guidance from the Indiana Supreme Court regarding what attorneys are permitted to do, consistent with ethical duties of competence and diligence to clients as well as candor to a tribunal, when they encounter relevant and useful memorandum decisions.

Advocative and Ethical Concerns
Just last year the Court of Appeals cited a memorandum decision in a footnote, “While not binding precedent, we note that our court has previously held in unpublished decisions that a parent’s pattern of neglecting a child’s medical needs supported a finding of medical neglect.” A.C. v. Indiana Dep’t of Child Servs., No. 20A-MI-1975, 2021 WL 1326350, at *8 n.2 (Ind. Ct. App. Apr. 9, 2021).  Consistent with the prohibition in Rule 65(D), the parties had not cited any memorandum decisions. Thus, neither party had the opportunity to address the authority on which the Court of Appeals relied in reaching its holding. 
The Section’s amicus brief noted that Indiana attorneys have a duty to represent clients diligently and competently. Ind. Prof. Conduct R. 1.2 & 1.3. If memorandum decisions are relevant and helpful in deciding a case, attorneys understandably want to cite and argue them. But Rule 65(D) prohibits such citations.  
The brief concluded that the current rule and its inconsistent application undermine judicial efficiency. It prohibits counsel from advising the Court of Appeals of cases that have addressed the same issue or informing the Indiana Supreme Court of cases that may be important considerations in the transfer calculus.  

Conclusion
The proposed rule addresses these and other concerns in a thoughtful, balanced way. Two classes of opinions will continue, but memorandum decisions will be citable as persuasive authority. The change would take effect at a future date, impacting only decisions issued in the future. Lawyers will have no duty to cite memorandum decisions (or to read them when issued every day)—although they will no longer be precluded from citing the 1500 or so memorandum decisions issued every year by the Court of Appeals. Whether you support the proposed change or have concerns, please consider taking a few minutes to submit a comment online no later than November 7, 2022, at 12:00 p.m.