Appeals – Why Should I Motion for Publication?

In prior blog posts we have discussed the two types of opinions issued by the Indiana Court of Appeals, “for publication” and “not for publication.” Generally opinions issued “not for publication” or “NFP” are applicable to only the specific case at hand. Only the opinions that meet certain criteria are issued “for publication”, as follows:

If the case:

1. establishes, modifies, or clarifies a rule of law;
2. criticizes existing law; or
3. involves a legal or factual issue of unique interest or substantial public importance¹

In some circumstances, when the opinion is initially issued, it will be “for publication” and in other circumstances; even if an opinion meets the criteria set forth above, it will be issued as “not for publication.” As a litigant, if your opinion is issued “not for publication” and you believe that it meets the criteria set forth “for publication” you (or your attorney on your behalf) can ask the Court of Appeals to publish; this is done by filing a motion.

When an opinion is published it becomes binding law upon all future litigants or cases in Indiana, which all courts must then follow.

You may wonder, why ask for publication? If the opinion is favorable to you, you received what you wanted, and if the opinion is adverse to your position, why make it law? For example, starting with an opinion that is favorable to you, you may want to seek to have it published for public policy reasons, it will set the precedent for all cases like yours to follow, and you have made a positive contribution to shaping the laws of this state. However, if the opinion is adverse to you, and you are seeking to have it overturned by a higher court (Indiana Supreme Court, or even the United States Supreme Court), you will likely get more traction in having your case reviewed and potentially overturned. Remember, the Indiana Supreme Court and United States Supreme Court are an appeal by permission, not right. However, if a case comes before the higher court that is binding precedent (“for publication”) and they believe it was decided wrong, it will be a more compelling reason to take the case and correct the erroneous decision.

We hope that you have found this information to be helpful. This is not intended to be legal advice. If you have questions or concerns about your specific case, Dixon & Moseley, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.

1. Indiana Rules of Appellate Procedure, Rule 65.