Breaking the Rules: Flowcharts & Newton's Cradle in the Court of Appeals

I am honored to be one of a small percentage of attorneys who can claim not only an Indiana Supreme Court win, but one that can affect every jury trial in every court in the state (I wrote appellate briefs and second-chaired Clark v. Mattar, 133 N.E.3d 220 (Ind. 2020)). However, I no longer litigate and argue cases in the sanitized, sterile manner I learned 25 years ago. I was a teacher before law school and will always be some combination of a teacher and student at heart. Every year I look for opportunities to sharpen my skills and even learn new ones if I can use them to help my clients. I admit I do not have all the answers and freely give credit to some friends who are known among injury attorneys across the country. John Fisher, a New York attorney, and Kurt Zaner, a Coloarado attorney, have both encouraged me to embrace what makes me unique in everything we do--from marketing to client communication to appellate briefs.

Following this proven advice in a recent case, I chose to surrender valuable writing space in appellate briefs and forego a purely academic discussion. We instead created flowcharts to demonstrate how the lack of the correct jury instruction would lead a wrongfully-instructed jury to return a verdict against my client when proper instructions could have led to a comparative fault verdict in favor of our client. My paralegal Taylor (actual title “operations manager” because of her range of skills) somehow figured out how to reflect our arguments into two visually perfect flowcharts.

The full story of the case will have to wait for another day, but here is the central problem we faced: In their opinion, the Court of Appeals actually agreed that the judge abused his discretion by denying a spoliation instruction after our opponent agreed that spoliation was the core of the case. However, we lost a few pages later due to the harmless error monster (if you are unfamiliar with the concept, this is a regrettable legal concept that gives an appellate court the ability to deny a wronged party a new trial if the judges do not themselves think a new trial will create a different result).

We petitioned the Indiana Supreme Court for transfer and requested. In our petition,

I chose to confront what no one can deny: trial judges are quite hesitant to give a spoliation instruction due to the knowledge that juries usually return a verdict against the evidence-destroying party when given the instruction. Our approach challenged this reality head-on: If the system is so hesitant to give the instruction out of concern it would affect the outcome, how can anyone possibly say the instruction had no effect on our trial result? Especially when all of the unique, harmful realities of this trial are considered?

In my initial draft arguments, I realized the issue was not easy to argue without being too wordy and risking confusion. In frustration, I thought “Why couldn’t we be dealing with a scientific issue like velocity?” when I remembered Kurt Zaner’s tip: don’t write like a lawyer, be my true self, and simply write to persuade.

I then actually embraced science as the best way to demonstrate the injustice of our system hesitating to give the instruction but then also hesitating to give a new trial when the instruction is wrongfully denied. The science that proves this point: Newton’s Cradle. You might think you don’t know what Newton’s cradle is, but you absolutely do: the suspended steel sphere desk toy! I explained my strategy to Taylor, and she brilliantly figured out how to make it visually simple.

We also emphasized a “You don’t need to go to law school to know what’s right” obvious injustice: no fair system

gives a spoliating party the benefit of the doubt when deciding if their destruction of key evidence affected the final outcome. We then advocated for a more just rule Indiana law should use in this circumstance: make the spoliating party bear the burden of proving the wrongful denial of the spoliation instruction had no effect on the verdict. Ludwig v. Flaherty & Collins, 25A-CT-0094, 49D03-2303-CT-013118. 

Sometimes we must fight the “that’s the way it’s always been done” mindset. The most effective strategy could be something that makes us uncomfortable because it doesn’t follow unwritten “rules”. However, when these “rules” are merely habits and routine, not only can we break them, we must break them! If we step back and realize an uncommon alternative could be more effective, we have an affirmative duty to our clients and to all Hoosiers to grab the sledgehammer and break any rule that does not serve truth and justice.