March 27, 2014 Indianapolis Law Club Presentation

On March 27, 2014, Ron Waicukauski and Brad Catlin presented an update on Indiana law to the monthly meeting of the Indianapolis Law Club. You can download a copy of his handout at that presentation here. An audio version of his presentation can be downloaded here.


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Employees Of Independent Contractors Can Be Protected Whistleblowers

In Lawson v. FMR LLC, ___ U.S. ___ (U.S. March 4, 2014), Cause No. 12-3, the Supreme Court issued an important decision extending whistleblower protection to the employees of subcontractors of public companies, and it noted that law firms may be one such contractor. Could you be a protected whistleblower?
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Equitable Estoppel Applies to Attorney-Client Privilege and Work Product Doctrines

In a very interesting opinion, the Indiana Court of Appeals held that Purdue University was equitably estopped from asserting attorney-client privilege related to an investigation an attorney performed for the University in Purdue Univ. v. Wartell, ___ N.E.3d ___ (Ind. Ct. App. March 24, 2014), Cause No. 79A02-1304-PL-342. This creates a new exception to the attorney-client privilege and work product doctrines under the right circumstances.
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You Can Cite Unpublished Opinions To Indiana Courts, Just Not Indiana Unpublished Opinions

The Indiana Court of Appeals’ recent decision in Wertz v. Asset Acceptance, LLC, ___ N.E.3d ___ (Ind. Ct. App. March 21, 2014), dealt with an issue of first impression: whether an out-of-state business is required to obtain a license to collect on a debt assigned to the business. The answer is “No,” and if you want to know why, then you can read the opinion. The reason I find it interesting is because of a footnote—a footnote that deals with unpublished opinions.
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Violation Of Separation Of Witnesses Order Merits Discipline

The Indiana Supreme Court sent a message to the bar in In re DeVane, ___ N.E.3d ___ (Ind. March 20, 2014), Cause No. 49S00-1308-DI-511: a violation of a separation of witnesses order may get you disciplined, and an intentional violation may get you suspended.
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Craft Those Affirmative Defenses Carefully

In lawsuits, allegations matter, and this principle applies to affirmative defenses as strongly as it applies to an affirmative claim for relief. If you don’t specifically plead an affirmative defense, then there is a serious risk that the Court will find that defense waived, as the defendant discovered in TABFG, LLC v. Pfeil, ___ F.3d ___ (7th Cir. Mar. 20, 2014), Cause No. 12-3557.
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Serial Motions To Dissolve A Preliminary Injunction Don’t Create An Appealable Order

The Indiana Court of Appeals recently addressed a quirky question of appellate jurisdiction in Kindred v. Townsend, ___ N.E.3d ___ (Ind. Ct. App. Feb. 25, 2014), Cause No. 60A01-1304-PL-156. At issue was whether an order resolving a motion to dissolve a preliminary injunction that was not based on any new information was appealable. The Court held that it was not.
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Lying On A Filing Will Get You Disciplined

As a litigator, I’ve seen attorneys spin, bend, and creatively characterize facts. I’ve even seen an attorney browbeaten for committing a Rule 11 violation, namely making a factual contention that lacked evidentiary support and was plainly incorrect. But while I’ve heard stories, I’ve yet to see an attorney commit an outright lie in filed papers. And if I do, I hope that they suffer the same fate as Terrance Kinnard did in In re Kinnard, 2. N.E.3d 1267 (Ind.2014), Cause No. 49S00-0905-DI-235, a suspension without automatic reinstatement.
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Court Clarifies Relationship Between Res Judicata And Law Of The Case Doctrines

Full Disclosure – our firm represents the appellee in the case discussed below, although I was not part of the litigation team.

We lawyers use lots of terms to describe things that have already been decided: res judicata, issue preclusion, claim preclusion, law of the case, etc. But these doctrines differ and practitioners should be careful to apply the correct doctrine in the correct situation. The recent decision in CBR Event Decoratoes, Inc. v. Gates, ___ N.E.3d ___ (Ind. Ct. App. March 3, 2014), Cause No. 49A02-1302-CT-159, provides some guidance in this regard, as it provides rules to clarify when these doctrines apply.
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Do You Need A Criminal Conviction To Recover Under The Crime Victims Relief Act?

Occasionally, a case will dramatically change your understanding of the law governing a particular subject. For example, I’ve had a vague notion of what Indiana’s Crime Victims Relief Act is—a statute that allows the recovery of treble damages and attorney’s fees if you can prove the plaintiff was the victim of a crime. I never previously understood that a criminal conviction as a prerequisite to recovering under this Act. That all changed when I read Wysocki v. Johnson, ___ N.E.3d ___ (Ind. Ct. App. March 3, 2014), Cause No. 45A03-1309-CT-385.
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