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

Thanks in large part to the excellent advocacy of Rich Cook, I am 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 the state (I second-chaired Clark v. Mattar, 133 N.E.3d 220 (Ind. 2020)). However, I do not have an over-abundance of appellate experience. I recently had to dig deep for my moot court skills after I came up short for my client at trial last year. Few can claim a stronger love of propriety, but my instincts told me that was not the most effective way to advocate for my client. I was influenced by Kurt Zaner, a Denver attorney who taught at a Trial Lawyers University conference in 2024. He encouraged us to stop writing like it’s 1950, put ourselves into our writing, and just write to persuade!

In our appellate briefs, I chose to surrender valuable writing space and forego a purely academic discussion. We instead created flowcharts to demonstrate how the lack of the 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 put all of my craziness into two visually perfect flowcharts. I retreated to moot court propriety during oral argument, and the appellate court judges had obviously spent a lot of time discussing the issue.

The full story of the case will have to wait for another day, but 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. 

We petitioned the Indiana Supreme Court for transfer. 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. 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?

I couldn’t figure out how to argue that without being too wordy. 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 in hesitating to give the instruction but then also hesitating to give a new trial when the instruction is wrongfully denied: 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: giving 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 in this circumstance: make the spoliating party bear the burden of proving the wrongful denial of the spoliation instruction has 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.