Illinois Lawyers Practicing in Indiana: How to Avoid Malpractice
With the City of Chicago and its southern suburbs bordering the Indiana state line and the Indiana cities of Terre Haute and Evansville so close to Illinois, it is commonplace for Illinois attorneys—either with a dual license or pro hac vice—to find themselves representing clients in Indiana courts. As always, that adventure comes with a risk: the risk of legal malpractice for treading into unfamiliar territory.
Unfortunately, many Illinois lawyers who branch out into Indiana assume that their Illinois experience will serve as a guide in Indiana courts. They could not be more wrong. Significant differences exist between the two states’ substantive and procedural laws, which can form a ready malpractice trap for the unwary Illinois attorney. This article intends to provide an introductory (though not comprehensive) survey of how Indiana law differs from Illinois law so that the Illinois attorney venturing into Indiana practice may at least be aware of the risks faced and how to avoid them before they become a malpractice claim.
Understanding Court Systems and Structures
Illinois lawyers practicing in Indiana must first understand the fundamental differences in the court systems. Indiana has a three-tiered court structure, similar to most states, but with notable distinctions. The Indiana Supreme Court has five justices, compared to seven in Illinois. The Court of Appeals, not divided into districts, has statewide jurisdiction and comprises judges, not justices. Additionally, Indiana has a specialized appellate-level Tax Court.
Since 1970, Indiana has used a “merit selection” system for appointing judges to the Supreme Court, Court of Appeals, and Tax Court. This system involves a judicial nominating commission that submits a list of three candidates to the governor, who then appoints one. The appointed judge faces a statewide retention vote in the next even-year election and every ten years thereafter, with mandatory retirement at age 75.
Indiana’s trial court system can confuse Illinois attorneys accustomed to the unified circuit courts. Indiana has two types of trial courts: circuit and superior courts, with plenary jurisdiction. Most counties have a single circuit court and multiple superior courts as needed. This system stems from the Indiana Constitution, which allowed only one elected judge per circuit. As caseloads grew, additional courts with identical jurisdiction, called superior courts, were established.
Procedural Differences and Local Rules
Navigating procedural differences is crucial for Illinois lawyers practicing in Indiana. Each county in Indiana has its own set of local rules approved by the state supreme court, and all courts in a county must agree on proposed local rules. Indiana Trial Rules forbid judges from issuing standing orders, so only these local rules govern procedural matters not addressed by state rules.
Unlike Illinois, where parties are entitled to a change of judge as a matter of right, Indiana's system does not hold this against the judge. In Indiana, requesting a change of judge is a routine part of practice, and judges do not react negatively to these requests. Additionally, Indiana courts have magistrates who function differently from Illinois's associate judges. Magistrates serve at the pleasure of judges and require counter-signature on orders, except when serving as special judges after a change of judge is taken.
Indiana’s statutes become effective on July 1 each year, unlike Illinois's January 1. This difference is crucial when considering the applicability of statutory provisions.
Trial and Appellate Rules in Indiana
Indiana abolished its Code of Civil Procedure in 1968, replacing it with the Indiana Trial Rules, modeled after the Federal Rules of Civil Procedure. While the numbering and general provisions are similar, there are vital differences Illinois lawyers must understand.
In Indiana, appearances are for individual attorneys, not firms. Each attorney must file an individual appearance and withdrawal, ensuring clear accountability for handling cases. Additionally, Indiana employs notice pleading, and affirmative defenses do not require a response. Trial Rule 9.2 mandates that pleadings founded on written instruments include a copy of the document attached.
Indiana's summary judgment procedure is one of the riskiest pitfalls for Illinois attorneys. Trial Rule 56(C) requires the movant to designate specific parts of pleadings, depositions, and other materials relied upon. Designating entire documents is improper, and failure to adhere to this rule can result in the opposing party using any part of the document against the motion. Moreover, the nonmovant has 30 days to respond to a summary judgment motion, with extensions required to be requested within the original deadline.
Default judgments present another malpractice risk. Setting aside default judgments in Indiana is much more challenging than in Illinois. Indiana treats defaults like any other judgment, with the only recourse being under Trial Rule 60(B) for “mistake, surprise, or excusable neglect,” which is applied sparingly.
Additional Considerations for Illinois Lawyers
Comparative fault in Indiana also differs significantly from Illinois. Indiana’s Comparative Fault Act abolishes the contribution right, allowing defendants to assert a Nonparty Defense. This defense permits the defendant to name a nonparty believed to share fault, and the jury may assign fault accordingly. Understanding the nuances of this defense and its application, especially concerning statutes of limitations, is crucial.
Claims against governmental entities in Indiana are governed by contributory negligence rules, with damages capped at $700,000 per plaintiff and $5 million per occurrence. Additionally, Indiana has a detailed Tort Claim Notice requirement, mandating written notice to governmental entities within specific timeframes, failure of which bars the suit altogether.
Indiana’s medical malpractice regime is another unique feature. The Indiana Medical Malpractice Act requires a proposed complaint to be reviewed by a medical review panel before court proceedings. This panel process, governed by stringent rules, necessitates careful preparation by attorneys to avoid summary judgment against their clients.
Navigate Indiana Law Safely with ISBA Mutual
Illinois lawyers practicing in Indiana must be vigilant and well-prepared to navigate the differences in substantive and procedural laws. Understanding the organizational structure of Indiana courts, adhering to procedural rules, and being aware of unique aspects like comparative fault and claims against governmental entities are essential to avoid malpractice risks.
The safest approach for Illinois lawyers is to hire local counsel familiar with Indiana practice. While this may involve fee-splitting, it significantly reduces malpractice liability risk. Regularly practicing in Indiana courts can also build the familiarity to navigate them safely and competently.
For more comprehensive support and to ensure adequate professional liability coverage, ISBA Mutual offers tailored insurance solutions for Illinois lawyers practicing in Indiana. To learn more, please contact the Illinois professional liability insurance firm of ISBA Mutual Insurance Company for peace of mind and professional security.
Sources, Acknowledgements, and Notes
Author Adam Sedia is licensed and practices in both Indiana and Illinois. He practices with Johnson & Bell, Ltd., where he is a member of the firm’s business litigation practice group, chaired by Joseph R. Marconi, with offices in both Chicago and Crown Point, Indiana. Mr. Sedia practices professional liability defense and municipal law, focusing on appellate practice. He holds a B.S. and B.A. from Indiana University in Bloomington (2006) and his J.D. from DePaul University (2009).
