Do you understand the difference between “case law” and “statutory law”?  Have you ever wondered what the term “common law” meant?  If you struggle with these legal terms, this article will help. 

Judge-made law.  Statutes come from the legislative branch of the government, while case law is the product of the judicial branch.  Black’s Law Dictionary defines “case law” as “the aggregate of reported cases as forming a body of jurisprudence, where the law of a particular subject . . . is formed by the adjudged cases . . ..”  The definition of “common law” in Black’s states, in part:  "the body of those principles . . . which derive their authority solely from usages and customs . . . or from judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs . . .."  The labels of common law and case law essentially are interchangeable. 

Legal precedent/ stare decisis.  These concepts play an important role in the development of case law.  Borrowing again from Black’s, legal precedent is a prior decision of a court that furnishes authority for a similar, future case involving a similar question of law.  Courts decide cases largely on the basis of principles established in prior cases, which are close in facts or legal principles to the case at hand.  A court’s decision on a new matter will create a rule of law for a particular type of case that will be referred to in the future when a similar case is decided. The doctrine of stare decisis, which is defined by Black’s as “to abide by, or adhere to, decided cases,” is a significant principle in the creation of case law.  Trial courts and courts of appeals stand by precedent so as not to disturb a settled point. Note Black’s: "when court has laid down a principle of law applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same."

From where does a case come?  Much of the case law applicable to Indiana foreclosures comes from the Indiana Court of Appeals the Indiana Supreme Court .  This is how case law is born:  Lawsuits are filed and litigated in trial courts (circuit and superior courts in each Indiana county).  Parties who are the subject of an adverse ruling by a trial court, either in connection with a pre-trial motion or at trial, can appeal the decision to the Indiana Court of Appeals.  The Indiana Court of Appeals studies the trial court’s record of proceedings and then decides the appeal.  Often the appellate court will issue a written opinion, commonly called a case (hence, “case law”).  The opinion typically summarizes the facts, states the issues, outlines the applicable legal rules and provides an analysis applying the rules to the facts.  The opinion ends with a conclusion, sometimes called a “holding,” which states whether a party won or lost on the question(s) presented.  A party can appeal the Indiana Court of Appeals’ decision to the Indiana Supreme Court.  The Indiana Supreme Court, if it accepts the appeal, then will issue its own written opinion.  These written, appellate opinions are published in hard-bound law books (reporters) and electronically (for instance, through LexisNexis).  They also can be accessed through the Court’s websites: Court of Appeals Opinions and Supreme Court Opinions.

Cases equal education.  The appellate court’s opinions, which collectively constitute case law, deal with a wide range of issues from specific rights and obligations of a party, to the interpretation of a statute and how it applies to a given circumstance.  Because the opinions provide the reasoning behind the court’s conclusion, they offer insight into a particular rule of law.  That reasoning is valuable to lawyers and parties, who use it as guidance for future conduct and decisions.  This is why providing "court commentary" on my blog is so important.  Relevant decisions by courts teach banks and commercial lenders, who deal with loans in default and the collection of commercial debts, about their rights and duties.  If you need to know whether Indiana law previously has addressed a particular question, lawyers like myself are trained to do the legal research necessary to find the answer, assuming a definitive answer exists.  But don't be surprised if there isn't a case on point.  Frequently, there are gaps in the law that create uncertainty.  Lawyers often are called upon by their clients to advise how a specific matter may be determined when there is neither a case nor a statute directly on point.