While I am happy to report that the Indiana Supreme Court ruled in favor of my injured client in this specific case, I think the Court’s opinion does a very good job of unanimously affirming the importance of our civil justice system and the absolute need for our courts to be open to all. 

The Court’s opinion is 19 pages long so I thought I would provide you with some highlights from Chief Justice Rush’s opinion.  The opening sentence of the opinion reads: 

Indiana’s tort trials should be about making injured parties whole—not about federal immigration policies and laws. 

She then went on to address the constitutional implications this case raised: 

When Indiana law affords a remedy—like recovering decreased earning capacity—the Open Courts Clause does not permit us to close the courthouse door based solely on the plaintiff’s immigration status. We cannot read the Open Courts Clause’s “every person” guarantee to exclude unauthorized immigrants. [Citations omitted.]  And as long as decreased earning capacity remains recoverable in personal injury actions, it is part of administering justice “completely.” See Smith, 883 N.E.2d at 807 (“[The Open Courts Clause means], at a minimum, that to the extent the law provides a remedy for a wrong, the courts are available and accessible to grant relief.”).  Accordingly, Escamilla and similarly situated plaintiffs cannot be barred from pursuing decreased earning capacity claims. 

Chief Justice Rush even quoted from Chapter 40 of Magna Carta, writing “to no one will we sell, to no one deny or delay right or justice.” 

After distinguishing a federal decision that was based upon a conflict between two federal statutes and involved only federal congressional policy, the Court moved on to create an evidentiary framework addressing when evidence of an injured party’s immigration status might be admissible. 

After acknowledging that immigration status is relevant to a claim for decreased earning capacity, the Court went on to find that, in the vast majority of instances, such evidence should be excluded under IRE 403 because it would confuse the issues and be unfairly prejudicial.  After acknowledging the complexities and constantly shifting federal immigration laws and policies – including a recent Executive Order signed by President Trump – the Court wrote: 

The way complex immigration law has invaded this opinion demonstrates the way it would invade Escamilla’s tort case if his immigration status were admitted. Immigration arguments and evidence would “flood the courtroom.” See Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997) (quoting United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996)). Injecting such a specialized and complex mini-trial into Escamilla’s tort case creates too high a risk of confusing the issues.  

The Court ultimately concluded that it is the Defendant’s burden to show that the injured party more likely than not will be deported before the issue of their immigration status can become admissible.  In reaching this conclusion the Court observed: 

Finally, even though proof that a particular immigrant will more likely than not be deported may be a steep showing, it is still the least cumbersome alternative. Requiring plaintiffs to prove that they will not likely be deported would require them to prove a negative—a burden we rarely impose. [Citations omitted.] 

For these reasons, the admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence’s risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice. 

This case will prove helpful to all injured parties who have been an unauthorized immigrant either currently or at some time in the past. 

Most heartening to us as trial lawyers, the Court’s unanimous Opinion shows a deep and abiding respect for the rights of injured persons to have access to our courts and the seek compensation when they have been injured through the fault of others.  

Finally, I want to offer my deepest thanks to all who helped on this case including Alex Limontes and Tom Ruge for their excellent Amicus Briefs.

 

Timothy F. Devereux

On the heels of his induction as 2013-2014 President of the Indiana Trial Lawyers Association (ITLA), Mark Ladendorf caught up with Dave Stafford of The Indiana Lawyer to discuss law and life.  The full article can be viewed here.  

Regarding his role as ITLA President:

Q. What are some major practice concerns for trial lawyers that you’ll talk about during your term as president? 

A. I view my role as a facilitator for the growth of the ITLA in the many endeavors in which we already partake. Our outreach includes legislative, administrative, PAC, interaction with the judiciary, fundraising, CLE seminars and social events. All of these efforts are undertaken with the promotion of a strong civil justice system in mind. With the pervasive overview of the ITLA in the many aspects of the legal profession, I will attempt to balance many roles and bring my 33 years of legal experience to the table.

I feel fortunate to serve my administration under the guidance of Micki Wilson, Jason Bell, Lindsay Meyer and Bridget Gross as well as the executive committee who steer this great organization.

On being a trial lawyer:

Q. What is your favorite thing about being a trial lawyer? 

A. I take great pride in being a trial lawyer, not for myself, but for being able to serve others who seek representation when the odds are stacked against them. Not that I have a “Robin Hood” persona, but it is always gratifying to assist someone who needs you most, especially against some of our society’s most powerful interests.

His most challenging case?

Q. Is there one particular case you’ve worked on that stands out as the most difficult?

A. By far, the toughest case I worked on was seeing my friend and fellow attorney, Joan Irick, pass as a result of malpractice. To everyone who knew Joan, she was a terrific person and consummate professional. My representation of her in the last years of her life was one of the most heartbreaking and wrenching experiences I have been part of. She will be endeared and missed forever.

Mark’s advice to new lawyers: “[T]here are enormous opportunities for a person who holds a legal degree as it is the most versatile degree in society. Go forth and serve and good things will happen.”

For the rest of The Indiana Lawyer‘s interview with Mark Ladendorf, check out http://www.theindianalawyer.com/ladendorf-takes-helm-as-itla-president/PARAMS/article/31612.