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Court Shows It Is Serious About Appellate Procedure
Lawyer Blogs | 2011/06/10 23:53
On June 8, 2011, the Indiana Court of Appeals demonstrated it is serious about enforcing the Rules of Appellate Procedure in Garrard v. Teibel, Cause No. 45A04-1003-PL-229, a memorandum decision, uncitable as authority under App. R. 65(D). In this case, a pro se appellant failed to include any statement of the case after 2007 (although summary judgment proceedings occurred in 2009) and failed to include any of the designated evidence from the summary judgment proceedings in his appendix. The Court found that the pro se appellant had waived all arguments on appeal and affirmed the trial court's order.

Lessons:

1.Although the Court cuts people a lot of slack in the form and content of their brief, its generosity has bounds.

Brad A. Catlin
Price Waicukauski & Riley, LLC


No Second Chances for Faulty IRA Trusts
Lawyer Blogs | 2010/09/07 07:17
Postmortem wealth transfers to IRA beneficiaries continues to present estate planning challenges.  Although perhaps not the final word on the matter, the IRS now prevents postmortem trust reformation designed to allow trustees to treat them as designated beneficiary trusts.  The relevant ruling is PLR 201021038.

The broadness of the limited power of appointment was perhaps the most critical flaw in the subject trust.  It was too broad to be able to determine the correct measuring life.  There were other flaws as well, most notably the trust’s naming of charities as potential beneficiaries.

The tax consequences of this ruling are devastating to any similarly-flawed trust:  Beneficiaries cannot stretch out required withdrawals over the lifespan of the oldest beneficiary but would presumably have to withdraw all money from the plan within just a few years.

Unless a tax court modifies this ruling – and until it does – the bar is very high indeed for those who draft trusts for the purpose of receiving postmortem IRA distributions.  In short, get it right the first time!  I would read and reread
section 401(a)(9) to ensure the trust conforms to the section’s standards precisely.  Going forward, you may also wish to give grantors an opportunity to review the terms of their trusts to ensure they conform with the changing law on this subject.  A brief look every three-to-five years is appropriate, although factors like ill health


A Warning about Temporary Admissions
Lawyer Blogs | 2010/09/07 07:15
On September 3, 2010, the Indiana Supreme Court issued a warning to all attorneys in Indiana regarding their supervision over out-of-state attorneys in In re Anonymous, Case No. 10S00-1006-DI-288. This case was a disciplinary matter regarding an Indiana attorney who did not ensure that his Kentucky co-counsel followed the procedures for obtaining temporary admission. The Court agreed to give a private reprimand, but warned Indiana's attorneys as follows:

The failure of out-of-state attorneys and their Indiana co-counsel to comply with the rule governing temporary admission is neither trivial nor rare. Thus far in 2010, the Clerk has issued over 600 notices of automatic exclusion from practice, and this Court has entered orders granting relief from automatic exclusion to over 140 out-of-state attorneys. The need for this would be nearly eliminated if all Indiana co-counsel complied with their ethical duty to ensure that attorneys granted temporary admission in Indiana comply with Admission and Discipline Rule 3(2).

...

Indiana attorneys serving as local counsel for out-of-state attorneys are hereby advised of the importance of their duty to ensure complete and timely compliance with all the requirements of Admission and Discipline Rule 3(2). Indiana attorneys who neglect that duty in future cases may be subject to more stringent discipline, and out-of-state attorneys who fail to comply with this rule may be sanctioned for the unauthorized practice of law in this state.

Don't take any chances with your license. Make sure that your out-of-state co-counsel meets the requirements of Rule 3(2).

Brad A. Catlin
Learn more about Brad and contact us
Download a copy of this article here


7th Circuit Propounds Test for when a Treating Physician Must File a Formal Report under Rule 26(a)(2)(B)
Lawyer Blogs | 2010/09/01 07:15
On August 30, 2010, the Seventh Circuit determined, for the first time, when a treating physician who provides an expert opinion as to causation is required to file a formal report under Rule 26(a)(2)(B) in Meyers v. Nat'l RR. Passenger Corp. (Amtrak), Case No. 09-3323. To put the matter simply, "a treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment" must file such a report.
Lessons:
  1. A treating physician's opinion on causation must have been made in the course of providing treatment if it is not disclosed in accordance with Rule 26(a)(2).
Brad A. Catlin
Learn more about Brad and contact us
Download a copy of this article here


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