Saturday, September 5, 2009

Indiana Family Law: Where the Law Comes From - Part 3

Having discussed  legislation (statutes) and court rules, there remains a discussion of case law.  Understand that the appellate courts interpret both statutes and the court rules and those interpretations become part of what we call the law.

I do not think this is the place to discuss the origin and function of the common law (if you really want to look into this further, take a look here, here, and here, and here is you want to discuss the meaning of "law".)  I intend to concentrate on the practical.  Think of case law as explaining how a statute or rule applies to the facts of a case.

Understand there exists a hierarchy of authority.  Decisions of the Indiana Supreme Court trump the decisions of the Indiana Court of Appeals and the trial court, decisions of the Indiana Court of Appeals trump the trial court's decision, and the trial court's decision only controls what happens between the parties.

The Indiana Supreme Court has a page, Appellate Process, describing the appellate process.  I suggest giving it a look.  For more information on the Indiana Supreme Court follow this link and here for the Indiana Court of Appeals.

What we want is the law and it is here:  Indiana Appellate Opinions.  My lawyer readers may find this archive disconcerting - it is not organized, there are no West headnotes, there is no shepardizing device, and the archive does not extend earlier than 1995.  However, there is a search function that seems Google based.

So why point anyone in this direction?  First, because it is free.  Get the raw opinion, read it and then spend your Westlaw/Lexis budget getting the actual case rather than searching for the case.  Secondly, if one knows its limitations, it can still be useful at lesser cost than Westlaw/Lexis.  Three, one can get the cases quicker than with the subscriber services.

Case law presents the problem of being the most unstable source of law.  The General Assembly has not made a fundamental change to our family statutes in over 30 years.  While there are new rules, they have seen little change since their creation.  Case law presents the chance of change every day.

Just reading the statute and/or the rules are not enough.  One must know what - if  anything - the appellate courts have said about how the statute and/or rules are to be applied to a case.  Think of the statute and rules as abstractions and the case law as reality. Or, to use a more colloquial phrase:  case law is where the rubber meets the road.

With all that said, remember that when a case says it is not for publication that that case cannot be cited as law.  They have a use in finding cases that can be cited as law.

For those who never understand what it is that a lawyer does - this process of matching law to facts is one important part of what lawyers do.  Think about this when you think you can do the work yourself and when you wonder what it costs for legal services.

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