Summary
striking additional legal argument filed after the case had been fully briefed on transfer, noting that "but for the absence of covers and a binding," the document was "essentially an advocate's brief"
Summary of this case from Care Grp. Heart Hosp., LLC v. SawyerOpinion
No. 40S01–1107–PL–436.
2012-05-18
Hugh David REED, Appellant, v. Edward REID, et al., Appellees.
Jennings Superior Court, Cause No. 40D01–0711–PL–299.
PUBLISHED ORDER
After this case had been fully briefed on transfer and we heard oral argument on March 28, 2012, Appellees filed a document titled “Appellees' Notes On Oral Argument,” and Appellant filed “Appellant's Objection To Filing....”
The twelve-page “Notes on Oral Argument” consists of comment on the oral argument, citations, and legal argument on the issues in the case. In other words, but for the absence of covers and a binding, it is essentially an advocate's brief. Appellees did not request permission to file this document, and the Court did not request it. As Appellees note, two decisions mention the use of “notes on oral argument,” see Peak v. State, 240 Ind. 334, 356, 163 N.E.2d 584, 595 (1960) (dissenting opinion of Bobbitt, J.), and Workman v. Workman, 113 Ind.App. 245, 260, 46 N.E.2d 718, 724 (1943), but no opinion has mentioned them in the last fifty years. We are aware that they are discussed in Kenneth Stroud, 4A Indiana Practice (2nd ed.1990) § 11.4, but later versions of this work deleted reference to them. See George Patton, 24 Indiana Practice ch. 11 (3rd ed. 2001) & (2011–12 Supp.).
To whatever extent the filing of “notes on oral argument” without leave of court was once part of Indiana's appellate practice, it no longer is, and this order is being published to so inform attorneys. Appellate Rule 48 authorizes the filing of a Notice of Additional Authorities when pertinent and significant authorities come to the attention of a party after oral argument, but comment about the citations is limited to a parenthetical or single sentence explaining the authority. Appellees' “Notes on Oral Argument” document does not conform to this rule. Accordingly, the Appellant's Objection is SUSTAINED. Appellees' Notes on Oral Argument is STRICKEN, and the Clerk is directed to return all copies of it to counsel for Appellees.
The Clerk is also is directed to send copies of this order to counsel of record and to post this order to the Court's website. Thomson Reuters is directed to publish this order in the bound volumes of this Court's decisions.