With the City of Chicago and its south suburbs bordering the Indiana state line and the Indiana cities of Terre Haute and Evansville so close to Illinois, it is commonplace for Illinois attorneys – either with a dual license or pro hac vice – to find themselves representing clients in Indiana courts. As always, that adventure comes with a risk – the risk of legal malpractice for treading into unfamiliar territory.
Unfortunately, many Illinois lawyers that branch out into Indiana assume that their Illinois experience will serve as a guide in Indiana courts. They could not be more wrong. Significant differences exist between the two states’ substantive and procedural law, which can form a ready malpractice trap for the unwary Illinois attorney.
This article is intended provide a basic (though by no means comprehensive) survey of how Indiana law differs from Illinois law, so that the Illinois attorney venturing into Indiana practice may at least be aware of the risks faced and how to avoid them before they turn into a malpractice claim.
I. Courts and Systems
Like most states, Indiana has a three-tiered court structure. The state supreme court has five, not seven, justices. The Court of Appeals (not Appellate Court) is not divided into districts, with all of its judges (not justices) having statewide jurisdiction. There is also a specialized appellate-level Tax Court. Since 1970, all judges on the Supreme Court, Court of Appeals, and Tax Court are appointed under a “merit selection” system, under which a state judicial nominating commission takes applications when a vacancy occurs, submits a list of three candidates to the governor, who then appoints one. The appointed judge is then up for a statewide yes/no retention vote in the next even-year election, then every ten years afterwards, with mandatory retirement at age 75.
Indiana’s trial court system may seem confusing for Illinois attorneys used to the unified circuit courts in their state. Indiana has two types of trial courts: circuit courts and superior courts, both with identical plenary jurisdiction.
Most counties have only a single circuit court and multiple superior courts as the county needs. This stems from the original wording of the Indiana Constitution which provided for circuit courts and allowed only one elected judge per circuit. As caseloads grew, the legislature exercised its power to set up additional courts, gave them identical jurisdiction, and called them superior courts. Later, since superior courts were not constitutionally restricted to having elected judges, the legislature put the superior courts in the five largest counties (Marion, Lake, Allen, St. Joseph, and Vanderburgh) on localized versions of the merit-selection system as a counterbalance to local machine politics. Of the remaining counties, only seven (Monroe, Delaware, Franklin, Clark, Madison, Henry, and Owen) have their courts unified into a single circuit court, while the remaining 80 counties all retain independent circuit and superior courts.
Each county except one (Ohio County, population 5,940) constitutes its own circuit, so court organization is effectively by county rather than by circuit (with circuit numbers almost never used). Courts are administered by county, too: all courts in a county must agree on proposed local rules, which must then be approved by the state supreme court. The Indiana Trial Rules forbid judges from issuing standing orders, so only these local rules govern procedural matters not addressed by the state rules.
As in Illinois, any party is entitled to a change of judge as a matter of right, but unlike Illinois, such changes do not count against the judge and the judges do not generally react negatively to them. In Indiana, an attorney should not worry about offending a judge by “taking a change.” The courts are not centrally organized in each county, and where they exist chief judges wield little power, so there is really no supervisory consequence to changes being taken from a judge.
Indiana courts also have magistrates, which function differently from Illinois’s associate judges. A magistrate serves under and at the pleasure of a judge or judges of a court, and all of a magistrate’s orders must be countersigned by the judge of the court (which most of the time means the magistrate uses the judge’s signature stamp). Magistrates are available, however, to serve as special judge on a case after a change of judge is taken, and orders on those cases do not require a counter-signature. Indiana also allows attorneys to fill in as judges pro tempore in a court when the judge is absent.
As a final organizational matter, in Indiana the County Clerk is also the clerk of courts, and the clerk’s office shares their files with the courts. Courtesy copies to judges are not customary, and in many counties are expressly forbidden. Indiana courts also lack the triplicate carbon paper found in Illinois. Parties must instead file with their motion or response a proposed order granting or denying the relief they seek. Motions are also not noticed as they are in Illinois; any party can just file a motion, and if it wants a hearing, it should request so in its motion. Otherwise, the judge will rule on it or set a hearing as deemed appropriate. Thus, unlike Illinois, court appearances on motions and pretrial matters are comparatively rare.
Indiana statutes also become effective on July 1 of every year, not January 1 as in Illinois – an important consideration when considering when a statutory provision applies.
II. The Trial and Appellate Rules
Indiana, unlike Illinois, abolished its Code of Civil Procedure in 1968, replacing it with the Indiana Trial Rules, modeled after the Federal Rules of Civil Procedure. The Trial Rules differ from the Federal Rules in some important respects, but the numbering and general provisions of the rules remain the same and will be familiar to anyone familiar with federal practice.
First, appearances in Indiana are for an individual attorney, not a firm. Every attorney appearing on a case must file an individual appearance and withdrawal, and a document signed by an attorney without an appearance on file will require a separate appearance by that attorney.
Indiana, like the federal courts, requires only notice pleading, and affirmative defenses do not have to be answered. Trial Rule (T.R.) 9.2 requires that any pleading founded on a written instrument must include a copy of that document attached to it.
T.R. 53.4 classifies motions to reconsider as “repetitive motions” and provides that they are deemed denied if the court takes no action on them within five days. This short-circuits the lengthy reconsideration briefing often present in Illinois. Reconsideration of a final judgment is governed by a Motion to Correct Error under T.R. 59.
By far, however, the riskiest pitfall for an Illinois attorney is Indiana’s summary judgment procedure. T.R. 56(C) requires the movant to “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” Indiana courts construe this provision strictly, holding that the designation of an entire document is improper, and if done, the opposing party may rely on anything else contained in that document to oppose the motion.” Filip v. Block, 879 N.E.2d 1076, 1081-82 (Ind. 2008).
T.R. 56(C) also gives the nonmovant 30 days to respond to a summary judgment motion, and T.R. 56(I) requires any extension of that deadline to be requested within the original deadline. The cumulative effect of these rules is a “bright-line” of 30 days either to respond to a summary judgment motion or request an extension; otherwise the belated response must be stricken as untimely. E.g., Desai v. Croy, 805 N.E.2d 844 (Ind. Ct. App. 2004). The result of an untimely filing resulting in summary judgment becomes as clear-cut a case of legal malpractice as imaginable.
Default judgments also present a much greater malpractice risk in Indiana than in Illinois – it is much more difficult to set aside a default judgment in Indiana. While Illinois leaves setting aside a default up to the trial judge’s discretion, Indiana treats a default like any other judgment, and a defaulted defendant’s only avenue of recourse to set it aside is under T.R. 60(B). Assuming no lack of jurisdiction, the only grounds usually available to set aside a judgment is T.R. 60(B)(2)’s provision for “mistake, surprise, or excusable neglect,” which also requires a showing of a meritorious defense. But that should provide little comfort; Indiana courts apply that provision sparingly. For example, it was not excusable neglect for an employee who received the complaint failing to forward it to counsel because he was filling in for the employee who usually received service, who was on maternity leave. Huntington Nat’l Bank v. Car-X Assoc. Corp., 39 N.E.3d 652, 655-58 (Ind. 2015). The risk of default in Indiana is therefore not to be taken lightly.
Indiana’s Appellate Rules also contain a potential pitfall for Illinois attorneys. Unlike in Illinois, the court reporter does not prepare a common-law record, but only the transcript. It is up to the appellate attorney to assemble the clerk’s case summary and the relevant file documents into the appendix to the brief. Failure to assemble those documents into the appendix will result in them not being before the court for review. Waiting for a common-law record to be filed will be fruitless; it will never come.
Finally, Indiana has a set of special Public Access Rules for court documents, and any document to be filed under seal must strictly comply with the requirements of those rules and cite a basis in the rule itself for exclusion from public access. The Indiana Supreme Court has long adopted an open-door policy, and provides that its rules must be construed to favor public access whenever possible, and failure to comply with the public access rules may result in protected information being publicly available.
III. Comparative Fault
Like Illinois, Indiana adopts a comparative fault regime, but takes an entirely different approach. Quite unlike Illinois, Indiana’s Comparative Fault Act abolishes the right of contribution. I.C. 34-51-2-12. Instead, it allows a defendant to assert a Nonparty Defense, in which as an affirmative defense the defendant may name – by name – a specific nonparty it alleges to share a portion of the fault. I.C. 34-51-2-16. The jury may then assign any portion of the fault to the nonparty, which requires the plaintiff to amend the complaint to name the nonparty as a defendant for any chance to recover form it. Application of the nonparty defense in the face of statutes of limitations can be tricky. For an Illinois case in which an Illinois firm narrowly escaped malpractice liability for their handling of an Indiana nonparty defense, see USF Holland, Inc. v. Radogno, Cameli & Hoag, P.C., 2014 IL App (1st) 131727.
While not strictly a comparative fault rule, Indiana also treats evidence of medical bill write-offs differently from Illinois. The Indiana Supreme Court’s seminal decision in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), held that the defense may introduce evidence of write-offs of medical bills to allow the jury to determine what was the reasonable cost of the plaintiff’s medical care. An Illinois plaintiff’s attorney who fails to account for Stanley write-offs in evaluating the case or defense attorney who fails to introduce them into evidence is not meeting a well-established standard of care in Indiana.
IV. Claims against Governmental Entities
Specifically excepted from Indiana’s Comparative Fault Act are claims against governmental entities, to which the traditional rule of contributory negligence still applies. I.C. 34-51-2-2. Damages are also capped at $700,000 per plaintiff with a $5 million aggregate liability per occurrence. I.C. 34-13-3-4. Statute also sets forth 23 categories of immunity for governmental defendants, the most litigated of which is the performance of a “discretionary function.” I.C. 34-13-3-3(a); Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40 (Ind. 1988) (rejecting the ministerial/discretionary distinction in favor of a planning/operational standard).
Another special rule applies to claims that presents a pitfall for plaintiff’s attorneys: the Tort Claim Notice. A plaintiff must send a written notice to the governmental entity (and the attorney general if it is a state entity) providing enough information to allow the entity to assess its potential liability (time, date, place, parties involved). The plaintiff must give the notice within 180 days of the incident giving rise to suit for county and municipal entities or within 270 days of the incident for state entities. Failure to provide timely notice bars the suit completely. I.C. 34-13-3-6, -8.
Unlike Illinois, Indiana has no special Court of Claims to handle these matters. Instead, claims against governmental entities are brought like any other case in the circuit or superior court.
V. Medical Malpractice
One of the most unique features of Indiana law is its Draconian medical malpractice regime, the first state tort-reform scheme, enacted in 1975 under Governor Otis Bowen, a medical doctor (and later President Reagan’s HHS secretary).
The Indiana Medical Malpractice Act (MMA) sets forth a broad definition of “healthcare provider” and provides that to receive the protections of its provision, each provider is assessed an annual fee that it pays into the Indiana Patients’ Compensation Fund (“the Fund”). I.C. 34-18-2-14, 34-18-3.
As a precondition of filing suit against a qualified provider, the plaintiff must file a proposed complaint with the Indiana Department of Insurance, which assigns review of the claim to a medical review panel consisting of three licensed Indiana providers with specializations as determined by the parties. The panel then reviews the submissions from the parties and each panelist renders an opinion by checking a form with statutorily prescribed options, including whether there was or was not a breach of the standard of care. All three opinions are then admissible in evidence. The panel process is governed by I.C. 34-18-10. It is best envisioned as three free expert opinions provided courtesy of the state.
Once the panel opinion is certified, the claim may proceed in court (with statutes of limitations tolled during panel review). More often than not, the panel comes down 3-0 on one side or the other, and the side with the favorable opinion (usually the defense) immediately moves for summary judgment based on the panel’s admissible opinion. The responding party must have an expert “waiting in the wings” ready to provide an affidavit in opposition to the panel’s opinion. Failure to do so will result in summary judgment in the movant’s favor and a malpractice claim against the nonmovant’s attorney.
The MMA also sets forth damage caps: for an act of malpractice after June 30, 2019, each provider and its insurers is only liable for up to $500,000, with a total liability cap of $1.8 million. I.C. 34-18-14-3. Any gap between the providers’ limit and the aggregate limit may be recovered from the Fund – which requires the plaintiff then to litigate the extent of damages against the Fund’s counsel.
Indiana trial courts, particularly in Lake and Porter Counties, often have a bias against Chicago attorneys, whom they view often as marching over state lines and arrogantly expecting everything to be the same as in Illinois. While this view might be unfair, it happens in enough cases that an Illinois attorney is caught unaware of the differences in Indiana practice and ends up facing a potential or actual legal malpractice claim.
The safest solution, as always, is to hire local counsel. While it will require some form of fee-splitting, that expense will trifle compared to the money saved from minimizing the risk of malpractice liability. Short of that, only regular appearance in Indiana courts will build the familiarity needed to navigate them safely and competently.
This article is far from a comprehensive treatise on Indiana law, but it does – hopefully – provide some basic outline of the malpractice pitfalls encountered by litigating in that jurisdiction.