One question we frequently hear from our clients is “can I get attorney fees?” Unfortunately, the answer to this question is, it depends. The main reason for the uncertainty surrounding the ability to obtain attorney fees is due to the fact that our legal system follows what is known as the American Rule. The American Rule is a deviation away from the old common law rule (known as the English Rule), which required the losing party of a particular matter to pay the winning party’s attorney fees. However, under the American Rule, the presumption is that both parties pay their ...
February 6, 2020CD
A frequent question we receive from our clients seeking an appeal is whether or not they can stay1 the trial court’s ruling during the pendency of the appeal. The answer to that question is, it depends. In general, seeking a stay during the pendency of an appeal is difficult to accomplish. Whether you will be successful in seeking a stay of the trial court’s order depends on the specific facts of the case and what is at issue for stay (property and/or custody). In this blog, we provide a brief overview of the process of seeking a stay during the ...
January 15, 2020CD
Very few cases go directly to the Indiana Supreme Court (ISC) as a matter of right.1 Most cases wind up in the ISC as a matter of discretion. The way this occurs is a party to a Court of Appeals’ (COA) decision (Indiana’s intermediate appellate court) seeks transfer. The ISC must accept the case. When it does so, it vacates the COA’s decision. This blog explores what the ISC may do on transfer and highlights a new case the reflects a change in the way the ISC has operated in the past given the addition of new Justices in the ...
November 19, 2019CD
We have all heard on television or from an unsatisfied litigant they will take their case to the Supreme Court. In reality, most cases have a right to be appealed to the Indiana Court of Appeals (COA). The Indiana Supreme Court (ISC) must accept most cases by a litigant timely filing a Petition to Transfer after the COA decides the case. The Indiana Supreme Court then decides which cases it will take and denies transfer to the remaining cases (it does not hear them). Fortunately, the ISC has published guidance on the types of cases it typically takes (it can ...
October 16, 2019CD
In general, an individual cannot appeal a trial court’s decision until there is a final judgment in the case. A final judgment is one that disposes of all pending issues in a case. There are, however, exceptions to the “final judgment rule.” As one may imagine, a judge typically does not decide all issues in a case at one time. In fact, judges make numerous rulings in cases. There are times when a judge will make a ruling that does not dispose of all the issues, but just some of them, meaning that there is no final judgment, ultimately barring ...
September 19, 2019CD
Indiana is fortunate to have an intermediate appellate court where every litigant with a final order can appeal as a matter of right if they have a good-faith basis the trial court erred.1 A significant amount of the entire civil docket is family law, so there are thousands of family law final orders issued each year. If you do not prevail and are considering an appeal, the blog may assist you as it addresses the three strongest types of family law appeals, although every case may be taken to the Indiana Court of Appeals. Special Findings. In Indiana trial courts, if ...
August 28, 2019CD
The trial court’s final order, such as in a divorce case, dividing the property and making a custody award can be enforced immediately. And it usually is. That said, a litigant who does not want an order enforced pending an appeal has two ways to stop its enforcement pending an appeal. In this blog, we cover stays that stop a trial court’s final order from being enforced. As a first step, which seems like a foreign concept to many litigants, they have to ask the court to issue the order to issue a stay. The reason this seems strange is because ...
August 22, 2019CD
The Fourth Amendment of the United States Constitution protects individuals from illegal searches and seizures. This means that when police officers illegally conduct searches or illegally seize items, evidence obtained as a result of the illegal search or seizure cannot be used against the individual to convict them. Most illegal searches occur in the absence of a search warrant, but, not every warrantless search will justify a Fourth Amendment violation. There are exceptions to the warrant requirement. One of the biggest exceptions to the warrant requirement is a Terry stop. A Terry stop allows a police officer to conduct a ...
August 21, 2019CD
The Fourth Amendment of the United States Constitution protects individuals from random police searches. The United States Supreme Court has found that, implicit within the Fourth Amendment is a preference for a valid warrant before conducting a search. Specifically, the Supreme Court has stated that “searches conducted outside the judicial process . . . are per se unreasonable under the Fourth Amendment – subject only to a few . . . exceptions.”1 Therefore, if a police officer conducts a search without a warrant, it must be pursuant to a well-established exception. One such exception is a vehicle inventory search. An ...
August 9, 2019CD
The Fourth Amendment of the United States Constitution protects you from illegal searches and seizures. This means that when police officers illegally conduct searches and illegally seize items, evidence obtained as a result of the illegal search and/or seizure cannot be used against the individual to convict them. The starting point in determining whether the search or seizure was illegal depends on the circumstances. To claim that there was an illegal seizure of the person, one must be in police custody and be subject to police interrogation. To claim there was an illegal search, one must establish that they had ...
August 8, 2019CD