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A common question among practitioners is whether they may cite memorandum decisions issued by the Court of Appeals of Indiana. The answer to that question is controlled by Appellate Rule 65. Prior to Jan. 1, Appellate Rule 65(D) provided that memorandum decisions “shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.”
For years, citation of memorandum decisions was rare because those decisions were not widely available. But that changed in 2006, when the Court of Appeals began posting its memorandum decisions on its website. At that same time, memorandum decisions also became available on websites like Westlaw and LexisNexis. Thereafter, citations to memorandum decisions increased. When counsel cited a memorandum decision, the Court of Appeals would generally admonish counsel that the citation was a violation of Appellate Rule 65(D) and warn that such citations would be struck. See Gonzalez v. Evans, 15 N.E.3d 628, 639 n.7 (Ind. Ct. App. 2014), trans. denied.
However, effective Jan. 1, Appellate Rule 65 was amended. The amended rule now states that “a memorandum decision issued on or after January 1, 2023, may be cited for persuasive value to any court by any litigant.” Ind. Appellate Rule 65(D)(2). This is a significant change from the previous version of the rule, which essentially barred citation of memorandum decisions. Now, any party may cite to any court a memorandum decision issued by the Court of Appeals on or after Jan.1 for its persuasive value.
Although the door has been opened to allow a party to cite memorandum decisions, there are several things to keep in mind. First, Appellate Rule 65(D)(2) only allows citation of memorandum decisions issued on or after Jan. 1, 2023. Memorandum decisions issued before that date are “not binding precedent for any court and must not be cited to any court except to establish res judicata, collateral estoppel, or law of the case.” Id.
If you do cite to a memorandum decision issued on or after Jan. 1 and are not trying to establish res judicata, collateral estoppel or law of the case, keep in mind that the decision can only be cited for its persuasive value. Consequently, although the court might find the memorandum decision influential, it is not bound to follow its lead because it is not binding precedent.
Also, the new version of Rule 65 tells us that “there is no duty to cite a memorandum decision except to establish res judicata, collateral estoppel, or law of the case.” Id. For some, this may come as a relief. The majority of the decisions issued by the Court of Appeals are memorandum decisions. Staying up to date on all the Court of Appeals’ rulings in its memorandum decisions is no small task. Rule 65 seems to recognize this and indicates there is no penalty for not citing a memorandum decision.
Lastly, if you do cite a memorandum decision, be sure that you cite it properly. Citation of memorandum decisions is controlled by Bluebook Rule 10.8.1. That rule provides that when citing to an unreported case that is available on a widely used electronic database like Westlaw or LexisNexis, the following information should be provided: (1.) the case name; (2.) docket number; (3.) database identifier; (4.) court name; and (5.) full date of the most recent major disposition of the case. For pinpoint citing, the rule provides that “(s)creen or page numbers, if the database assigns them, should be preceded by an asterisk; paragraph numbers, if assigned, should be preceded by a paragraph symbol.” So, for example, a proper citation to a memorandum decision would look like this: In re R.M., No. 22A-JT-1104, 2022 WL 17492104, at *3 (Ind. Ct. App. Dec. 8, 2022).
The amendment to Appellate Rule 65 is significant for both practitioners and the courts of this state. Practitioners now know that in addition to being able to cite memorandum decisions to establish res judicata, collateral estoppel and law the case, they can also now cite memorandum decision issued on or after Jan. 1, 2023, for their persuasive value. And the courts must now wrestle with determining how much persuasive value to assign to the Court of Appeals’ memorandum decisions. It will be interesting to observe what impact these changes have on the legal landscape over the coming months.•
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Kyle Gillaspie is chief staff attorney for the Court of Appeals of Indiana. Opinions expressed are those of the author.
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