HB 1147 is a bill I am sure is going nowhere and probably raises separation of powers issues. But it would be generally favorable to most of my clients. The bill would make orders on summary judgment and motions to dismiss appealable orders if the amount in controversy is over $100,000. The court of appeals would have discretion to review such orders in matters involving less than $100,000.
Currently the way it works is that if you file a motion to dismiss or a motion for summary judgment and the judge rules against you, you usually can’t appeal that ruling until the entire trial is over. So, for example, I recently had a case involving a personal trainer who had his client sign a liability waiver. The client got hurt while lifting weights and sued the trainer. I filed for summary judgment based on the liability waiver. The judge denied the motion without explanation, but presumably because he did not believe the language of the waiver was effective. I believe the judge was incorrect in that determination and think I could have gotten the Court of Appeals to see things my way. But I couldn’t go directly to the Court of Appeals. I had to go to a jury trial. Fortunately, we prevailed with the jury finding that the trainer wasn’t negligent anyway. We, therefore, never had to go to the Court of Appeals on the waiver question.
From the Court of Appeals’ perspective, that’s how things should work. They were spared a case, and we got a judgment for the defendant. But, my client had to spend a lot of money on litigation. The client and the insurance company had to put up with a lot of pressure to settle the case before we got to trial. And my client was entirely deprived of the value of that waiver.
On the other hand, plaintiffs with legitimate cases don’t want to have to jump through yet another hoop before they can get paid. The Court of Appeals certainly can’t be excited about the potential for all of those extra cases.
I like the idea of this bill, but I don’t see it going anywhere.
What’s really irritating to attorneys is just what you described in your case involving the personal trainer liability where the judge denied your motion without explaining. I recently had a case where, after a lengthy oral argument after which the judge asked both parties to submit proposed written orders in electronic format, along with electronic copies of our respective briefs, and requested more than 30 days to rule, the judge took a little over 90 days to rule and then issued a 2-paragraph summary order denying my motion in which he did nothing more than state the legal standard. Reading the order, you would have no idea what the case was about, let alone the factual and legal determinations the judge made for denying the motion. The federal court judges write very detailed orders that leave no doubt why they ruled the way they did on a summary judgment motion. It’s difficult to explain to your client why you wasted time on a summary judgment motion when the judge spends five minutes writing up an order with nothing more than conclusory statements about the legal standard for granting summary judgment. Typically, you don’t mediate the case until after the ruling on summary judgment. The lack of explanation in the ruling makes it difficult for you to help your client assess the strengths and weaknesses of his/her case in deciding whether to settle or take the case to trial.
I’ve had two larger cases where that scenario played out. The order definitely did not encourage either of them to be more inclined to settle. (And, as it turned out, the juries returned defense verdicts in both of them.)
But you can take an interlocutory appeal on that denial of summary judgment. The trial court has to sign off on it as does the Court of Appeal. There seems to be a strange willingness on the part of the COA to agree to hear interlocutory appeals. I’ve complained about the number of interlocutory appeal. When I worked at the Court of Appeals, I don’t recall working on a single interlocutory appeal. I remember that they were highly disfavored. Now they seem commonplace.
The two cases where this has been a major factor for me, one time the trial court wouldn’t certify the interlocutory order and the other time the Court of Appeals declined to review the order.
I freely admit that part of my enthusiasm for this bill is what would have been advantageous to my clients in those cases. But, like I said, I don’t see this going anywhere.
I am thinking in an entirely different direction.
The Summary Judgment has become a substitute for trial in Indiana. The Summary Judgment should be utilized only in the rare example of the prima facie case. Summary Judgment procedure is further egregious in Indiana because of Indiana’s “Designation Rule.”
Under the Designation Rule, a party must announce (designate) in advance of the Summary Judgment hearing what evidence he will use at the hearing. If the party overlooks or is unaware of evidence at the time of filing his designation, he is precluded from arguing in support of his position at the hearing. How do you call it a “justice system” when parties are not recognized and people aren’t listened to?
I attended a lecture once by the Chair of the trial judges of Cook County. Her position was that she almost never grants a Summary Judgment because she considers it a form of a Bill of Attainder. Bills of Attainder are forbidden by Article I of the U.S. Constitution.
I would like to see a U.S. Supreme Court case on this someday.
I don’t think it’s unfair to have the summary judgment be a “put up or shut up” moment in litigation. What I don’t like is plaintiffs who keep throwing out slop until the last minute, mostly hoping to appeal to juror sentimentality or confusion.