2010 Rule Amendments Indiana Judicial Conference Lilia Judson & Tom Carusillo

1. <?xml version="1.0"?><AllQuestions /> <?xml version="1.0"?><AllResponses /> <?xml version="1.0"?><Settings><answerBulletFormat>Numeric</answerBulletFormat><answerNowAutoInsert>No</answerNowAutoInsert><answerNowStyle>Explosion</answerNowStyle><answerNowText>Answer Now</answerNowText><chartColors>Use PowerPoint Color Scheme</chartColors><chartType>Horizontal</chartType><correctAnswerIndicator>Checkmark</correctAnswerIndicator><countdownAutoInsert>No</countdownAutoInsert><countdownSeconds>10</countdownSeconds><countdownSound>TicToc.wav</countdownSound><countdownStyle>Box</countdownStyle><gridAutoInsert>No</gridAutoInsert><gridFillStyle>Answered</gridFillStyle><gridFillColor>255,255,0</gridFillColor><gridOpacity>50%</gridOpacity><gridTextStyle>Keypad #</gridTextStyle><inputSource>Response Devices</inputSource><multipleResponseDivisor># of Responses</multipleResponseDivisor><participantsLeaderBoard>5</participantsLeaderBoard><percentageDecimalPlaces>0</percentageDecimalPlaces><responseCounterAutoInsert>No</responseCounterAutoInsert><responseCounterStyle>Oval</responseCounterStyle><responseCounterDisplayValue># of Votes Received</responseCounterDisplayValue><insertObjectUsingColor>Red</insertObjectUsingColor><showResults>Yes</showResults><teamColors>Use PowerPoint Color Scheme</teamColors><teamIdentificationType>None</teamIdentificationType><teamScoringType>Voting pads only</teamScoringType><teamScoringDecimalPlaces>1</teamScoringDecimalPlaces><teamIdentificationItem></teamIdentificationItem><teamsLeaderBoard>5</teamsLeaderBoard><teamName1></teamName1><teamName2></teamName2><teamName3></teamName3><teamName4></teamName4><teamName5></teamName5><teamName6></teamName6><teamName7></teamName7><teamName8></teamName8><teamName9></teamName9><teamName10></teamName10><showControlBar>Slides with Get Feedback Objects</showControlBar><defaultCorrectPointValue>0</defaultCorrectPointValue><defaultIncorrectPointValue>0</defaultIncorrectPointValue><chartColor1>187,224,227</chartColor1><chartColor2>51,51,153</chartColor2><chartColor3>0,153,153</chartColor3><chartColor4>153,204,0</chartColor4><chartColor5>128,128,128</chartColor5><chartColor6>0,0,0</chartColor6><chartColor7>0,102,204</chartColor7><chartColor8>204,204,255</chartColor8><chartColor9>255,0,0</chartColor9><chartColor10>255,255,0</chartColor10><teamColor1>187,224,227</teamColor1><teamColor2>51,51,153</teamColor2><teamColor3>0,153,153</teamColor3><teamColor4>153,204,0</teamColor4><teamColor5>128,128,128</teamColor5><teamColor6>0,0,0</teamColor6><teamColor7>0,102,204</teamColor7><teamColor8>204,204,255</teamColor8><teamColor9>255,0,0</teamColor9><teamColor10>255,255,0</teamColor10><displayAnswerImagesDuringVote>Yes</displayAnswerImagesDuringVote><displayAnswerImagesWithResponses>Yes</displayAnswerImagesWithResponses><displayAnswerTextDuringVote>Yes</displayAnswerTextDuringVote><displayAnswerTextWithResponses>Yes</displayAnswerTextWithResponses><questionSlideID></questionSlideID><controlBarState>Expanded</controlBarState><isGridColorKnownColor>True</isGridColorKnownColor><gridColorName>Yellow</gridColorName></Settings> <?xml version="1.0"?><AllAnswers /> 2010 Rule Amendments Indiana Judicial Conference Lilia Judson & Tom Carusillo Thursday, September 23, 2010

2. Table of Contents • Amendments across multiple rule sets • Rules of Trial Procedure • 5(B), 9.2, 23, 39, 51, 53.1, 53.2 53.3, 59, 62, 72, 77, 79, Appendix A- 2 • Rules of Criminal Procedure • 13, 16, 19 and 25 • Small Claims Rules • 2, 3, 8, 10, 11, Appendix A • Jury Rules • 4, 20, 26

3. Table of Contents (cont’d) • Administrative Rules • 1, 3, 5, 8, 8.1, 9, 16, 18 • Admission and Discipline Rules • Rule 3, Section 2; Rule 23, Sections 11, 11.1, 16, and 17.4; • Rule 27, Section 1; Rule 28, sections 2, 3, 4, 6, 7; Rule 29 • Professional Conduct Rule • 6.6 • Appellate Rules • 8, 9, 11, 14, 14.1, 15, 16, 18, 22, 30, 39, 41, 44, 45, 46, 49, 50, 62, • 63, Form App. R. 9-1, Form App. R. 15-1, Appendix B • De Novo Appeal Rules • 1, 2, and 3 • Rules of Evidence • 617

4. Amendments Across Multiple Rule Sets. Clarify time when various deadlines commence Use standard language When “noted on the Chronological Case Summary” Except in criminal cases – see C.R. 19

5. RULES OF TRIAL PROCEDURE

6. Trial Rule 9.2 Pleadings and proof of written instruments. • 9.2 (A) already provides that: When any pleading is founded on a written instrument copy must be included in or filed with pleading • Adds that: when any pleading is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix a 2 .., shall be attached

7. Affidavit of Debt Requires: If filed by full time employee If plaintiff is original owner of debt If not, from whom was debt obtained, who was original owner What sort of account is it How much is due What and when was last payment Are there late fees and how much Is there interest and how much Is Plaintiff seeking attorneys fees

8. Trial Rule 9.2(B) Effect of non-compliance with affidavit of debt. • As with requirement for written instrument, when non-compliance is raised, court, in its discretion may: • order compliance • order the reasons for non-compliance to be added to the pleadings • allow the action to continue without further pleading • allow amendment to correct omissions of the requirements, including the affidavit of debt

9. Trial Rule 23. Class actions. • Rule 23 (F) Disposition of residual funds (after class action disbursements) • Residual funds are funds that remain after payment of all approved claims, expenses, litigation costs, attorneys’ fees, other court approved disbursements • No intent to limit approval of agreements with no residual funds

10. Trial Rule 23. Class actions cont’d. • Requires all class action judgments/orders approving proposed compromise of class action to provide for disbursement of residual funds, unless otherwise agreed. • If there are residual funds, not less than 25% shall be distributed to the Indiana Bar Foundation to support Pro Bono • Court may disburse balance of residual funds to the Bar foundation or to any other entity for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class.

11. Trial Rule 51. Instructions to jury: • Generally – amendments clarify language • T.R. 51 (A) Amendment removes language duplicative with Jury Rule 20 on Preliminary Instructions • Clarifies that a request to reread any preliminary instructions does not count against 10 instruction limit provided in subsection (D)

12. Trial Rule 51. Instructions to jury cont’d: • T. R. 51 (B) Amendment removes language that is duplicative of Jury Rule 26 – Final Instructions • T.R. 51 (D) Amendment clarifies that a party shall be entitled to tender no more than 10 instructions, including pattern instructions

13. Trial Rule 53.1. Failure to rule on motion. • T.R. 53.1(C) Clarifies that a court is deemed to have set a motion for hearing on the date the setting is noted in the CCCS and to have ruled on the date the ruling is noted in the CCS • T. R. 53.2 (C) Clarifies that a court is deemed to have decided on the date the decision is noted in the CCS. • T.R. 53.3 (C) Court is deemed to have set a motion for hearing on the date the setting is noted in the CCS

14. Trial Rule 62. Stay of proceedings to enforce a judgment. • (A) Execution. Execution may issue upon notation of a judgment in the CCS …. • (D) Stay upon appeal. • Allows the court to approve different forms of security as an appeal bond • Upon the giving of an adequate appeal bond with approved sureties, an irrevocable letter of credit from a financial institution approved in all respect by the court, or other form of security approved by the court.

15. Trial Rule 72. Trial court and clerk. • …..(D) Notice of Orders or Judgments. • Clarifies that immediately upon the notation in the CCS of a ruling upon a motion, an order or judgment, the clerk shall serve a copy …..

16. Trial Rule 77. Court Records. • Clarifies that notation of judicial events in the CCS shall be made promptly • The date of every notation in the CCS should be the date the notation is made, regardless of the date the judicial event occurred.

17. Trial Rule 79. Special Judges. • …..(N) place of hearing • ……(4) The court is deemed to have ruled on the date the ruling is noted in the CCS (prior to this provided “at time ruling or decision is entered into a public record or is received in the office of the clerk of the court where the case is pending.)

18. Rules of Criminal Procedure

19. Criminal Rule 13. Case reassignment and special judge. • Adds language analogous to TR 79 • Provides judges selected under local rule must accept case unless the appointed special judge is disqualified pursuant to the Code of Judicial Conduct, is ineligible for service under CR 13, or is excused from services by the Indiana Supreme Court.

20. Criminal Rule 16 (A) and (B). • Clarifies that times run from the time notation is made in the CCS.

21. Criminal Rule 19. Time within which appeal must be submitted. • Clarifies Notice of Appeal must be filed within 30 days after the date of sentencing  • If there is a timely Motion to Correct Error, Notice of Appeal must be filed within 30 days after ruling on the Motion to Correct Error is noted in the CCS or Motion to Correct Error is deemed denied under Trial Rule 53.3, whichever occurs earlier.

22. Criminal Rule 25. Wiretaps. • Deletes rule to correspond with legislation.

23. Small Claims Rules

24. Small Claims Rule 2. Commencement of Action. • Form of Notice of Claim • Requires that if a claim is on an account, an Affidavit of Debt shall be attached. • Form – same as T.R. 9.2 – Appendix 2

25. Small Claims Rule 8. Informality of Hearing. • (C ) (4) Adds that by authorizing a designated full-time employee to appear under this rule, the corporate entity, sole proprietorship, partnership, LLC or LLP waives any present or future claim in this or any other forum in excess of $1,500. • (C) (5) The Certificate of Compliance required to be filed by the designated full-time employee must state that the party waives any claim for damages in excess of $1,500 associated with the facts and circumstances of the allegations in the notice of claim.

26. Jury Rules

27. Jury Rule 4. Notice of selection for jury pool and summons for jury service. • Requires that the summons shall include information about court policies regarding use of electronic communications devices

28. Jury Rule 6. Exemptions. • New language accommodates all statutory exemptions

29. Jury Rule 20(b). Preliminary instructions. • Amended July 1, 2010 • (b) Requires court to instruct jurors before opening statement not to use electronic devices while in attendance at trial, during discussion, or during deliberations, unless specifically authorized by the court.

30. Preliminary instructions cont’d. • Also, shall instruct that when jurors are not in court – they shall not use electronic communication devices or any other method to: • Investigate the case, conduct experiments, or attempt to gain any specialized knowledge about the case • Receive assistance in deciding the case from any outside source • Read, watch, or listen to anything about the case from any source

31. Preliminary instructions cont’d. • Listen to discussions among, or receive information from, other people about the case; or • Talk to any of the parties, their lawyers, any of the witnesses, or member of the media, or anyone else about the case, including posting information, text messaging, email, Internet chat rooms, blogs, or social websites.

32. Jury Rule 26. Final Instructions. • (a) Provides that the court shall read appropriate final instructions which shall include • The applicable burdens of proof • The credibility of witnesses • The manner of weighing the testimony received. • Clarifies that the court shall provide each juror with written instructions before the court reads them.

33. Jury Rule 26(b). Final Instructions. • Amended July 1, 2010 • Court shall instruct bailiff to collect and store all electronic devises upon commencement of deliberation. • Court may authorize appropriate communication (child care, transportation, etc.) not related to case and require bailiff to monitor.

34. Jury Rule 26(b). Final Instructions cont’d. • Devises shall be returned upon completion of deliberation or when court permits • Courts that prohibit devises in courthouse are not required to provide these instructions. • But all courts shall still admonish regarding limitations associated with the use of electronic devises

35. ADMINISTRATIVE RULES

36. Administrative Rule 1. Preparation and Filing of Statistical Reports. • (B) Quarterly Case Status Reports. • Clarifies that case numbering provisions are intended for all purposes, including court costs, but it does not affect the court’s ability to waive multiple court costs or to try related cases as one. • Splits out ordinance violations

37. Administrative Rule 3. Administrative Districts. • Changes the 14 districts to new 26 • Provides that Board of Directors of the Judicial conference of Indiana shall by rule establish a structure for the governance, management and administration of the judicial districts.

38. Administrative Rule. 5. Payment and Notification Procedures. • b. Senior Judges • Codifies policy court already announced about senior judges serving as mediators in cases which are pending in the courts in which they serve • Clarifies appellate senior judge services

39. Administrative Rule. 5. Payment and Notification Procedures cont’d. • Provides that Judicial Nominating Commission shall certify to the Supreme Court (in addition to existing qualifications) that the person who is certified agrees: • In the case of a senior judge assigned to serve a trial court • Not to represent any client in any case before a court in which the senior judge is assigned as senior judge • To disclose to the parties coming before him as a senior judge if, within the previous 1 year, he has served as ADR neutral for (a) a lawyer or lawyers firm of a party to the case or (b) a party currently before the court. • Following disclosure, unless all parties agree on the record that the senior judge may hear the case, the senior judge must recuse;

40. Administrative Rule. 5. Payment and Notification Procedures cont’d. • In case of senior judge assigned to an appellate court • Not to represent any client in any case before Indiana appellate court • Not to serve as an ADR neutral in any case in which he or she participated as a judicial officer • Not to serve as a judicial officer in any case in which he or she participated as an ADR neutral • Not to represent any client in any case whose decisions are subject to review by any Indiana appellate court.

41. Administrative Rule 8 – Uniform case numbering system. • Requires inclusion of month in second set of digits in uniform case number (was encouraged) • Requires that last group of the numbers contain 6 digits – but no court will be required to do this if it requires re-programming • Requires courts in the county use the case sequence for each case classification (case type) – for all circuit, superior and probate courts. No court is required to do this to the extent it requires re-programming of the court’s existing CMS. • When transferring cases within the county - Requires that only the court identifier is changed and prohibits changes to the fourth group (case type). This does not apply to the extend the implementation would require reprogramming.

42. Administrative Rule 9 (G). Court records excluded from public access. • Incorporates new and missed statutory provisions • Comment section amendment: • In resolving conflicts between state statutes governing access to juvenile court records and certain medical records, courts should be guided by Admin. R. 9 procedures.

43. Administrative Rule 18 . County Probation Departments. • Requires courts of record with authority to impose probation to adopt plan by which the county will operate a unified or consolidated probation department. • Exempts separate probation departments established before January 1, 2010. • Must file annual report by March 1 on form designed by Judicial Center including certification that the department complies with education and salary standards for probation officers. • Conference shall review the plans pursuant to standards adopted by the conference.

44. Admission and Discipline Rules

45. Admission and Discipline Rule 2. • Increases attorney registration fees

46. Admission and Discipline Rule 28. • Creates judicial CLE

47. Professional Conduct Rules

48. Professional Conduct R. 6.6 – Voluntary Attorney Pro Bono Plan. • . . .(f) There shall be one district pro bono committee in each of the fourteen districts set forth below: • The Pro Bono Commission and the Pro Bono Districts are being ordered by the Court to study and report to the Court by December 31, 2011, on whether the new 26 districts should be adopted for Pro Bono purposes.

49. APPELLATE RULES

50. Amendments that clarify time when deadlines start to run is time event noted on the CCS. App. R. 8. Acquisition of Jurisdiction App. R. 9(A). Initiation of Appeal App. R. 14 (A), (B) and (C). Interlocutory Appeals App. R. 14.1(B), (C), (D). Expedited appeal for payment of placement and/or Services