I recently happened on an interesting amendment to Indiana Trial Rule 9.2 changing "must" to "shall":
Rule 9.2. Pleading and proof of written instruments
(A) When instrument or copy, or an Affidavit of Debt
(1) if the claim:
(a) arises out of a written contract, a copy shall be attached; however, the fact that a copy of such contract is not in the custody of the plaintiff shall not bar the filing of the claim; or
(b) is on an account, an Affidavit of Debt, in a form substantially similar to Appendix A-2 shall be attached;
(2) in addition to the requirements set forth above in subsection (1), if the plaintiff is not the original creditor, and the claim arises from a debt that is primarily for personal, family, or household purposes, the plaintiff shall provide an Affidavit of Debt that shall have attached as one or more Exhibits which shall include:
(a) a copy of the contract or other writing evidencing the original debt, which shall contain a signature of the defendant. If a claim is based on credit card or other debt and no such signed writing evidencing the original debt ever existed, then copies of documents generated when the debt was incurred or the credit card was actually used shall be attached; and
(b) a chronological listing of the names of all prior owners of the debt and the date of each transfer of ownership of the debt, beginning with the name of the original creditor; and
(c) a certified or other properly authenticated copy of the bill of sale or other document that transferred ownership of the debt to the plaintiff.
Now what is interesting about this? The Indiana Supreme Court approved the change on October 31, 2017. Thankfully, it does not take effect until January 1, 2020. Otherwise it would certainly have implications for my lawsuit, specifically the addition of (1)(a).
In Valeo's Complaint, they only produced one part of the claimed contract. I spent the next two years asking if the other half had been executed. Valeo (by their attorney Andy Hull) didn't admit that the other part was not executed, so "not in the custody of the plaintiff" until after time had expired for me to amend my answer to include a counterclaim of a frivolous lawsuit, or to move to dismiss for failure to state a claim. It was also after the two year statute of limitations for penalties Valeo's executives could face if found guilty of having violated IC 22-2-8 (performance fines of compensation). This is considered a Class C misdemeanor, like a first DUI if BAC under 0.15. The penalty for this is a maximum 60 days in prison and fine of $500. A later post will discuss the possible implications Valeo would have faced if this information had not been withheld for two years.
Valeo and their attorney appear to have purposefully withheld the fact that it was never executed from me. I certainly wish I remembered the specifics from 2009, but I didn't. So as TR 9.2 currently stands, and as I stated in my Answer, and in numerous responsive filings, Valeo did not produce a valid contract, or state their grounds for believing a contract did exist. Because they didn't, they should have been unable to continue pursuing their claim until correcting their deficiency. I repeatedly made exactly that argument, but Judge Heather Welch never saw that as a valid argument. Thankfully, early on, something helped me to grasp the dynamic and shift tactics.
As a side note, I can't imagine how any litigant, or especially trial attorney succeeds without adeptly using OODA loop. Thankfully, even though asthma and bad eyesight prevent me from piloting an F-18, our family has a tradition and obsession with air combat.
Of more interest to any legal scholars would be the replacements of "must" with the word "shall." When I initially thought the change could apply to me, I did a little research on the legal standard of each term. Bryan A Garner, the editor-in-chief of Black's Law Dictionary suggests the following in an ABA Journal article entitled "Shall We Abandon Shall?":
For teachers of legal drafting, there are two main pedagogical approaches today for teaching lawyers and aspiring lawyers about this word: (1) restrict shall to meaning either “has a duty to” or “is required to” (meaning that 40 to 80 percent of the shalls in existing forms will be replaced); or (2) eliminate shall altogether on grounds that lawyers as a group cannot realistically master the semantic subtleties of the word (meaning that 100 percent of shalls get dropped).
When I acted as style consultant to the U.S. Judicial Conference’s Standing Committee on Rules of Practice and Procedure, beginning in the 1990s, the federal judges for whom I worked experimented with the first option, but settled on the second. Hence when I revised the full sets of civil, appellate and criminal federal rules, the shalls were dropped. Rule 10(b) of the Federal Rules of Civil Procedure read like this:
“All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.”
Now it reads like this:
“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.”
Given this insight, I am very curious about the Indiana Supreme Court's reasoning for replacing "must" with "shall" in Indiana Trial Rules (there are other instances besides TR 9.2), and how this amendment to Trial Rule 9.2 came about--if it had anything to do with my lawsuit.
Thankfully, regarding TR 9.2, the "must" exists, and hopefully will until Valeo's lawsuit against me is over.
But be aware Indiana litigants, starting January 1, 2020, if a party sues you over a contract, they will not be required to produce the contract, or an affidavit of what they believe was agreed to for the lawsuit to continue. So you better keep copies of anything you sign, and notes to remind you about any discussions about contracts that were never executed.
If you don't, you might find yourself in the ridiculous position of being sued by a party who only produces an excerpt of a contract with your obligations, but conveniently leaves out their obligations. Oh wait, one Indiana judge already seems to think that's reasonable.
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You might think I wear a tin foil hat. But this change is an interesting coincidence when you also consider HB 1469. This bill was authored 1/14/15 (shortly after I left Valeo) and was passed into law May 5, 2015. Valeo filed suit against me on May 8, 2015.
The prior law mandated a penalty to the employer of 10% per day up to 2 times the unpaid wages, and actual legal fees from the employee in attempting recovery. The new law removes the 10%, changes to reasonable legal fees, and is only 2 times if the court determines the employer was "not acting in good faith." That now requires the employee to prove bad faith by the employer.
Given that Valeo did withhold compensation from me, and has withheld the evidence of times where that has happened, this change does apply. And the timing of this bill's introduction and becoming law is a sizeable coincidence.
A quick glance at candidate donations for the sponsors (David Ober, Martin Carbaugh, Chip Perfect, Phil Boots) does not suggest foul play. If a cross reference suggests otherwise, I will move this to a new post to develop it more thoroughly.
If you don't, you might find yourself in the ridiculous position of being sued by a party who only produces an excerpt of a contract with your obligations, but conveniently leaves out their obligations. Oh wait, one Indiana judge already seems to think that's reasonable.
______________
You might think I wear a tin foil hat. But this change is an interesting coincidence when you also consider HB 1469. This bill was authored 1/14/15 (shortly after I left Valeo) and was passed into law May 5, 2015. Valeo filed suit against me on May 8, 2015.
The prior law mandated a penalty to the employer of 10% per day up to 2 times the unpaid wages, and actual legal fees from the employee in attempting recovery. The new law removes the 10%, changes to reasonable legal fees, and is only 2 times if the court determines the employer was "not acting in good faith." That now requires the employee to prove bad faith by the employer.
Given that Valeo did withhold compensation from me, and has withheld the evidence of times where that has happened, this change does apply. And the timing of this bill's introduction and becoming law is a sizeable coincidence.
A quick glance at candidate donations for the sponsors (David Ober, Martin Carbaugh, Chip Perfect, Phil Boots) does not suggest foul play. If a cross reference suggests otherwise, I will move this to a new post to develop it more thoroughly.
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