Chief Justice Shepard is responsible for significant improvements to the Indiana court system.  He was asked by Governor Mitch Daniels to work with former Governor Joe Kernan to develop ideas on how to streamline government.  For this work, the Indiana Chamber of Commerce awarded both Shepard and Kernan with the 2008 Government Leader of the Year Award.  He worked with former Governor O’Bannon to develop a program to help educationally and economically challenged students succeed in Indiana law schools.

For his work, he is slated to receive the national Sixth Annual Dwight D. Opperman Award for Judicial Excellence.  He has taught law school courses at Yale, New York University and Indiana University.

The Evansville Vanderburgh County School Corporation recently honored the Chief Justice by developing a program for local students called the Randall T. Shepard Academy for Law and Social Justice.  The Evansville Bar Association recently restored a courtroom in the Old Vanderburgh County Courthouse and named it the Randall T. Shepard Courtroom.

Governor Daniels will select the next justice.

Cases can be mediated at any stage.  Some parties wish to avoid filing a lawsuit altogether, and will seek to mediate a case prior to the Court’s involvement.  Other cases may be mediated at any time up to and even after trial, generally to avoid an appeal.

Mediation only works if both sides have some risk in going forward without resolving the dispute.  Unless one side has a “slam-dunk” case (and there are not many of those), then generally, everyone has some risk.  If you have been sued for money damages, for example, then you are at risk of having to pay those money damages if you lose at trial.  Even if you think that the risk is low that you will ultimately have to pay money damages, you still may have to pay attorneys’ fees and litigation costs in order to defend yourself.  Some cases do not involve money damages at all, but rather, involve some other type of benefit or advantage.  For example, neighbors may be fighting over the proper boundary line, and both sides have a risk that the Court will find in the other party’s favor.

Mediators are generally trained to perform the job of acting as the third party neutral.  In Indiana, lawyers go through a 40-hour training course in order to become “registered.”

If you have any questions about the mediation process, please contact one of the firm’s registered mediators:

• Registered civil mediators:  Frederick R. Folz; R. Thomas Bodkin
• Registered family law mediator:  Kelly A. Lonnberg

There are no published statistics on how many cases actually settle at a mediation, but by anecdotal evidence and my own experience, it is clear that half or more of all mediated cases actually settle as a result of the mediation.  Some mediators boast that their settlement figures are as high as 85%.   Many of the cases that settle are those cases where someone in the process did not believe that the case could be settled.

I was recently involved in another “impossible to settle” case.  I was skeptical that the case would settle at mediation, and my client was certain it would not.   However, due in part to the skill of the mediator, and due in part to the reality of the costs and risks associated with having a trial, the parties reached a settlement.  None of the parties were completely satisfied with the outcome, but all of the parties felt that the mediation outcome was a better solution than continued litigation.

One of the primary benefits of mediation is the control that a party has over the outcome.  When you go to trial, a party is at the complete mercy of the judge or jury as to the outcome.  While the party can persuade and argue to try to convince the judge or jury to find in the party’s favor, the ultimate decision is not in the parties’ hands.  With mediation, the party is able to control the outcome because no resolution can be reached without the party’s consent.

If you have any questions about the mediation process, please contact one of the firm’s registered mediators.

• Registered civil mediators:  Frederick R. Folz; R. Thomas Bodkin
• Registered family law mediator:  Kelly A. Lonnberg

Some fairly simply rules should be implemented to help forestall litigation if management plans to review these sites with surveillance of an employee in mind,  Foremost among those rules is notification of the workforce that misuse of social media by an employee may be the basis for discipline. Such misuse may include disclosure of the employer’s trade secrets or proprietary information, statements about the company, its management or other employees that are derogatory that impugn another employee’s integrity. Some well known companies that have policies dealing with social media web site surveillance include Dell, IBM, Intel, Wells Fargo and Cisco.

A simple review of any of the social media sites will demonstrate the length to which some who post on them will go to get attention, or say whatever has come to mind, without reference to the consequence of broadcasting such information or opinion.

Because there is potential involvement with state and federal labor laws, and if you are a governmental unit potential constitutional issues as well, the decision to conduct surveillance should only be made after consultation with counsel, the development of a specific policy regarding both surveillance of, and use by employees of, such sites, a clear statement of what is prohibited and what the consequences of violation of the policy will be.  Do not, under any circumstance, simply Google© “surveillance of social media web sites” and copy someone else’s policy!

Author: R. Thomas Bodkin (bio)
Phone: 812.452.3562
email: tbodkin@bamberger.com

It is easy to imagine that once a litigiation hold is in place, personnel should not shred relevant documents.  However, the obligation is broader than simply protecting hard copies of data.  Businesses are also obligated to suspend all routine electronic data destruction practices, some of which may automatically occur via computer and software settings.

A business is not required to keep all data once a litigation hold is put in place.  Instead, a business is obligated only to safeguard ”relevant” information and data that may be requested by the opposing party.  Determining whether information is relevant or not is harder than you might imagine.  Several judges have tried to define what is relevant, and these definitions can be tricky.  For example, if data is “reasonably calculated to lead to the discovery of admissible evidence,” then a business must preserve the data.  This standard doesn’t give a busy business manager must guidance.

Because of the uncertainty over whether data will be relevant or not, business managers should err on the side of preserving any possibly relevant data.  If a business destroys relevant data, whether intentional or not, then the business may be penalized in the form of sanctions.  Some courts have imposed thousands of dollars worth of fines on businesses for failing to preserve relevant information.  Courts also have the power to simply mandate that you lose the case and owe the opposing party damages if the business destroys relevant data.

Because of these high stakes, businesses need to be proactive about developing litigation hold policies and training personnel on how to implement them.  If you wait until the next lawsuit or threat of a lawsuit hits, it will be too late.

If you have questions about litigation holds, please contact a member of the Bamberger Litigation Team.

After a recent injury, your physician prescribed Lortabs or some other painkiller for you.  You don’t take them all of the time, but there are some times when that shoulder/leg/knee/whatever just hurts enough that you need one, so you don’t want to get caught without one.  You do not want to carry the whole big prescription bottle with you, so you put one in your pocket, in the sample size aspirin bottle you carry all of your pills in, or whatever other container you find convenient to carry and that you carry with you all of the time anyway.  On the way home, you drop something on the floor of your car and reach for it, causing your car to swerve.  You recover and continue on your way.  Unfortunately, your swerve was noted by a police officer who pulls you over.  Confronted with your episode of erratic driving, you explain the dropped article, and the officer does not smell alcohol, but he really doesn’t believe you about the dropped article, either (“They all say that.”).  He suspects drug consumption based on the erratic behavior and your inability to provide what he views as an adequate explanation.  He gets a warrant to search your possessions and your vehicle, and he finds that painkiller.  You are busted.  But you had a prescription for it – “Just let me go home, officer, and get it to show you!”  That isn’t going to happen. 

In some jurisdictions, simply being in possession of a controlled substance that is not in the original issuing container is itself a crime, and it does not matter whether you had a prescription for it or not.  In Indiana, having a prescription is a defense, but it is what is considered an “affirmative defense”.  This means it is up to you to prove the prescription as a matter of defense, and you will not have a chance to do that until after the arrest.  Odds are, by then you have been in the news with that horrible picture and your name followed by “Arrested for Possession of Controlled Substance Without a Prescription”.  You may be released, or you may spend the night in jail, but either way you run home as soon as possible to get the bottle showing that it is your prescription. And maybe the police drop the charges.  But you have been arrested, and your picture has been in the newspaper – that damage is done. 

The lesson here is that you should NEVER carry a prescription painkiller (or other controlled substance) other than in the original pharmacy bottle in which that pill was delivered to you.  The bottle must have your name on it, not your spouse’s name or someone else’s from whom you just “borrowed one this time.”  You may or may not ultimately be convicted, but the price you could pay while waiting to clear yourself is just not worth avoiding the inconvenience of carrying that bottle around with you.

Author: Frederick R. Folz (bio)
Phone: 812.452.3504
email: ffolz@bamberger.com

In Corvee, Inc. v. Mark French, a parent had admitted his child to a healthcare center in Terre Haute, Indiana.  The parent signed a contract accepting financial responsibility for the cost of the child’s treatment.  The contract included the provision: “I also acknowledge that I am responsible for reasonable interest, collection fees, attorney fees of the greater of a) forty (40%) or b) $300.00 of the outstanding balance, and/or court costs incurred in connection with any attempt to collect amounts I may owe.”  The healthcare center billed the parent for $8,500 in services.  The parent did not pay this amount.  A collection agency was assigned the account and started collection proceedings, including a complaint for the amount owed.  The trial court entered a default judgment against the parent awarding the full outstanding balance.  However, the court only awarded the collection agency $1,000 in attorney fees instead of the $3,400 it was asking for (i.e. 40% of the $8,500 outstanding balance).

The Indiana Court of Appeals was asked to review the previously quoted contract provision on attorney fees in order to determine if the collection agency was entitled to 40% of the outstanding balance or the reduced amount as ordered by the trial court.  This was the first time the Court of Appeals addressed this type of contract provision.

The Court of Appeals recognized that there was no dispute that the contract unambiguously required the parent to pay the amount designated as attorney fees.  The question before the court was whether or not the attorney fees provision in the contract was enforceable.  The Indiana Court of Appeals found that there was no evidence that the collection agency had actually incurred $3,400 in attorney fees in attempting to collect the debt from the parent.  The Court of Appeals held that to allow the collection agency to recover 40% of the outstanding balance in the absence of such evidence would “give rise to the possibility” that the collection agency would enjoy a “windfall” at the parent’s expense, or that it will recover more from the parent than the outstanding account balance and the necessary cost the collection agency actually incurred in collecting it.  The Court of Appeals concluded that collection actions should permit creditors to “recover that to which they are rightfully entitled to make themselves whole, and no more.”

While provisions in contracts calling for the recovery of attorney fees remain a valid and useful tool for contracting parties, it is clear from this case that Indiana court will only allow a prevailing party to recover the amount of attorney fees and costs associated with enforcing the contract.

Author: Chad M. Smith (bio)
Phone: 812.452.3597
email: csmith@bamberger.com

One of the assets of the LLC was a commercial property.  They were tenants in the property who were delinquent in their rent.  One of the 50% owners wanted to evict them.  The other 50% owner wished to continue to work with them as tenants. 

The owner who was seeking eviction filed suit to evict the tenants.  The other owner intervened saying that there was no right to file the litigation because the members acting as a body had not taken this step to authorize it.

The Court of Appeals directed the trial court to hold a hearing on whether or not the party initiating the case had the right under the operating agreement of the LLC to move forward with the litigation.  The Court surmised that it did not, which is probably the case. 

This case illustrates a couple of things.  First of all, before initiating litigation, it is a wise step to take appropriate corporate action to make sure that the suit is authorized or to have previously granted that authority to an officer or a manager under your documents.  While in this case it was the other owner that intervened to stop the lawsuit, it is possible that the defendant may have been able to raise the issue as well.  This is a question that has not yet been answered by the courts.

If your business routinely initiates litigation, it would be advisable to make sure that the organizational documents expressly allow the initiation of litigation by the parties who are making this decision.  Otherwise, an appropriate corporate action may be necessary to initiate the suit.

Author: Terry G. Farmer (bio)
Phone: 812.452.3543
Email: tfarmer@bamberger.com

The Indiana Attorney General maintains a list of unclaimed property.  When a check has been outstanding for too long or other property goes unclaimed for a period of time, it is turned over to the Attorney General who holds it as unclaimed property.  It is held by the Attorney General for a period of time, with it listed in a central registry in the name of the person to whom it is owed.  While it is always a good idea to check your own name on the abandoned property registry to see if you missed cashing that dividend check years ago, this registry may also provide a source for collecting judgments.  The Office of the Attorney General advises that unclaimed funds standing in the name of a debtor can upon proper procedure levied upon by a judgment creditor. 

Maintaining a list of people and entities who owe you money under judgments, and then periodically checking that list against the Attorney General’s Unclaimed Property Registry, may from time to time turn up an asset that can be levied upon to pay your judgment.

Author: Frederick R. Folz (bio)
Phone: 812.452.3504
email: ffolz@bamberger.com

Author: Laura A. Scott (bio)
Phone: 812.452.3557
email: lscott@bamberger.com