Thursday, March 30, 2017

You’ve Got to Take Notice to Make Notice

July 3, 2012 by Hon. Barbara Brugnaux

The New Appellate Rule 9 and Initiation of an Appeal

Any attempt to discuss the changes to Appellate Rule 9 with a trial court judge usually results in a blank stare or lengthy pause in a phone conversation. That reaction is not surprising given that once a judge signs off on a final order of judgment, the case moves to a different arena, and the judge moves on to other cases demanding attention at the trial court level.

However, the changes have raised some concerns as to what trial court judges need to know about the new rule and how trial court judges can assist in the transition.

The amendments to Rule 9 were effective January 1, 2012. The most significant change to appellate practice is contained in Rule 9(A) that now requires the notice of appeal to be filed with the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court instead of the trial court clerk. The 30-day deadline after entry of final judgment remains the same. The rule contains a two-year grace period to allow appellate attorneys to adjust to the rule. Until January 1, 2014, a notice of appeal filed with the trial court clerk will be deemed in compliance. After the grace period, a notice of appeal filed with the trial court clerk will forfeit any right of appeal.

Appellate Court Judge Terry Crone explained that the Court decided on the two-year period out of an abundance of caution to protect the rights of litigants, particularly criminal defendants, to file appeals. “We felt that two years was a reasonable amount of time for the knowledge of the new filing requirement to percolate to those attorneys who may not do much appellate work,” Judge Crone explained.

Other changes to Rule 9 of interest to trial judges include:

  • abolishing the case summary filing requirement in favor of an expanded notice of appeal which includes many of the same elements
  • requiring the appellant to enter into an agreement with the court reporter preparing the transcript within 30 days of filing the Notice of Appeal
  • requiring the Notice of Appeal be served on the trial court judge, court reporter and trial court clerk

While the 30-day period for filing notice of appeal has not changed, the additional information required as part of the notice has some attorneys, particularly criminal defense attorneys, concerned that notice will not be provided to appellate counsel in time to gather the information necessary to file within the deadline. This issue does not arise in those cases where trial counsel continue as appellate counsel, but the more likely scenario is that the trial attorney, especially a public defender, will be replaced for the appeal.

Attorneys and judges contributed to the following suggestions as to ways trial judges can help increase awareness of the new rule and improve communication:

  • When giving the advisement about the right to appeal within 30 days, add that the Notice of Appeal must be filed with the Clerk of the Supreme Court, Court of Appeals and Tax Court and refer to Rule 9’s new filing requirements.
  • Make sure the court reporter and clerk know that preparing and mailing the order appointing new counsel is a priority. Some court reporters already notify appointed counsel informally by phone call or email to alert the attorney that the appointment has been made and the order will be coming. State Public Defender Stephen T. Owens said a phone call to his office would also be appreciated to jump-start the search for an attorney to handle the appeal.
  • Consider asking trial counsel to file the notice of appeal and then withdraw from the case. This suggestion is particularly pertinent to those cases where the State Public Defender is involved because of the built-in delay in getting appellate counsel appointed. While Owens said the delay is usually only a few days, he endorsed the idea of trial counsel filing the Notice of Appeal to give the appellate attorney more time to become familiar with the case.

The time for filing the transcript by the court reporter remains at 90 days from the filing of the Notice of Appeal.

While a trial court judge may not be directly concerned with the appellate process (other than wondering if the judgment will be affirmed), a trial court judge can certainly help the implementation of Rule 9 by increasing awareness of the rule changes with the local bar and court staff.

If this article inspires additional suggestions as to how trial court judges can improve the transition to filing a Notice of Appeal with the Clerk of the Supreme Court, Court of Appeals and Tax Court, all the better.