December 28, 2010 - Updated
Android App Now Available
The Court's Android App has been
updated for 2011. You can visit the Court App
page to download the new version.
November 12, 2010 - Local Rules
- Filing and Orders
After a brief blogging absence, I want
to return to the Court's Local Rules to address two issues, one that is
mentioned in the Rules and one that is not.
Local Rule 1.1 addresses the filing of
documents with the Court. It states that "documents required to be
filed in this court shall be filed with the clerk of the court of appeals
of the county in which the appeal or original action originated." It
concludes that documents sent to the Court at its headquarters in Akron
are not considered filed. We rarely see documents filed in the wrong
county. This Rule makes clear what is generally understood -
documents must be filed in the County where the case originated.
More often, we receive documents at
the main office that are mailed here to be filed. As Local Rule 1.1
states, these documents are not considered filed. I think this
usually happens because someone accidentally selects the Court's
headquarters' address for mailing instead of the address for the correct
clerk of courts. This is a gentle reminder to take care when
selecting the address for mailing to make sure your documents are filed.
This brings me to the other issue I am
thinking about today, one that is not covered in this Court's Local Rules
- the Court's orders. Unlike some courts, this Court does not
require parties to prepare an order for the Court. For example,
Local Rule 2(D) of the Fifth District Court of Appeals states that "[a]ll
motions shall be submitted for filing accompanied by a proposed judgment
entry suitable for use if the motion is granted."
This Court's practice for many years
has been to prepare its own orders and I do not imagine this will change
any time soon. Proposed orders submitted with a motion are not used.
This Court prepares every order, so parties do not need to spend the time
and money to draft and submit a proposed order.
October 4, 2010 - Ohio Supreme
Court Proposed Rule Changes
The Ohio Supreme Court announced
several proposed changes to the Ohio Rules of Appellate Procedure.
Among other things, these changes would address what should happen if an
appeal is filed while there are certain post-judgment motions still to be
ruled on by the trial court. You can read the proposed Rule changes
September 13, 2010 - The Ninth
Over the last few years, this Court
has embraced technology. The judges have wireless access throughout
the Akron office and on the bench in Summit County. All of the
judges have laptops and smart phones. They can connect to the
Court's servers remotely through a secure VPN from anywhere with an
As technology has evolved, the Court
has tried to keep in step. Last year, the Court joined Twitter, and
we tweet about oral argument schedules, court news, and updates.
Earlier this year, we added this blog. We now take one more step by
offering the Court's first app.
The app is available for Android-based
smart phones. It offers contact information for the Court; driving
directions to Lorain, Medina, Summit, and Wayne Counties using Google Maps
on the phone; contact numbers for the clerks of court (with one-touch
dialing); and links to the Court's website, the Court's Local Rules, the
Ohio Supreme Court's website, this Court's decisions posted on the Supreme
Court website, and the websites for the clerks of court.
The app is a work-in-progress.
Although it has been tested, tweaked, and modified, there may still be
bugs, so please let us know if you encounter any problems. More
importantly, please let us know if you think of something else you would
like to see added. The purpose of this app is to help the attorneys
and parties who appear before this Court, so if there is anything that can
be done to improve it, please send an email to
To download the app to your phone,
please visit our App Download page.
We hope you find this to be useful.
I look forward to your feedback, both positive and negative, so that we
can make it even better.
Finally, because I know some of you
are probably already wondering, we do not have plans to make an iPhone
app. Once our app development team (also known as the blogger)
learns how to create iPhone software, we will look to expand. For
now, however, we can only offer this Android-based app.
August 19, 2010 – The Court’s Local
Rules - The Appendix
Another amendment to the Local Rules
this year clarified what should be, and should not be, included in the
appendix to a brief. Local Rule 7(B)(9)(a) states what must be
included in the appendix:
1. the judgment entry appealed
2. any opinion of the
court announcing the decision reflected by the judgment entry appealed
3. any written findings of fact
and conclusions of law in the record on appeal;
4. all magistrate reports
containing findings of fact and recommendations which are partially or
totally adopted by the court in its final order; and
5. if it would aid the judges'
understanding of an issue on appeal, a map or diagram that was properly
admitted into evidence and made a part of the trial court record, may be
The first four items in this list are
related - the appendix must include the order appealed and any opinion
that explains the order, findings of fact and conclusions of law related
to the order, and a magistrate's decision which was adopted by the
trial court in the order appealed. The final item, a map or diagram,
is intended to allow the advocate to provide a visual aid to assist with
the written and oral argument. For example, a map could be helpful
in a boundary dispute to provide context for the written argument.
Likewise, a diagram of a piece of equipment, a building, or an
intersection, could assist the reader in understanding the argument.
The only limitation is that the item attached must have been introduced in
the trial court; a party cannot create something solely for purposes of
appeal and attach it to the brief.
Local Rule 7(B)(9)(c) also directs
that certain items should not be included in the appendix:
unreported and unpublished cases, statutes, rules, regulations,
ordinances, and constitutional provisions. The judges have ready
access to all of these materials, so there is no need to reproduce them in
the appendix. It also avoids another frequent occurrence - a party
quotes a rule or statute in the brief and then attaches a copy in the
appendix. The Local Rule recognizes that there is no need for this
duplication. Eliminating these unnecessary items from the appendix
also saves the costs of compiling, organizing, and copying them, as well
as the cost of additional postage for serving heavier briefs.
To summarize, the appendix must
include a copy of the order appealed, and related orders, as outlined in
the Rule. The appendix should not include copies of cases, statutes
of any kind, rules, or constitutional provisions.
August 6, 2010 – The Court’s Local
Today, we begin a series about the
Court’s Local Rules. The goal is to provide practitioners and parties
with information about the Local Rules and how the Court applies them.
Oral argument can be an important part of the appellate process, so we
will start there.
The Court modified its Local Rule
about scheduling oral argument earlier this year. Under the prior Local
Rule, every appeal was set for oral argument and the parties could waive
it. Because the parties are in the best position to know whether oral
argument is necessary, the modified Local Rule grants each party the
ability to request oral argument. If a party believes oral argument is
necessary, the party need only file a written request for oral argument.
If a party does not think that oral argument will assist the Court in
understanding the issues, then the party need not file a request for oral
The process for requesting oral
- an appellant may request oral
argument by filing a written request by the time Appellant’s Reply Brief
is due to be filed.
- an appellee may request and present
oral argument by filing a written request within ten days after
Appellant’s Reply Brief is due to be filed.
The request must be in writing and
must be filed with the clerk of court. The request should not be included
in the appellate brief – it must be filed as a separate pleading. The
form included as an appendix to the Local Rules may be used for this
purpose (you can find it
Each party who wants to present oral
argument must file a request. In other words, if the appellant files a
request for oral argument, that request does not also mean that the
appellee will be able to present oral argument; the appellee must also
file a written request for oral argument. Think of it this way – the
request is for that party to present oral argument, not for all parties to
the appeal to present oral argument. An appellant may believe that oral
argument is critical, while the appellee is willing to rely on its brief,
and the appellant’s request for oral argument will not require both
parties to appear.
Even if the parties do not request
oral argument, the Court may schedule an appeal for oral argument at which
all parties to the case will have the opportunity to be heard. For
example, because of the time limits involved with expedited appeals, the
Court may schedule a case that falls under Appellate Rule 11.2 for oral
argument without waiting for a request from the parties.
July 23, 2010 -
Meet the Blogger
Before moving too far along
with the blog, I thought it would be a good idea to introduce myself, C.
Michael Walsh, Magistrate and Court Administrator, as your lead blogger.
Although there will be many who offer their thoughts and insights in the
future, I will serve as the primary blogger for the Court. If you
have questions or suggestions, please feel free to submit them to
The Court hopes to provide many useful tips and websites that
will be of interest to appellate practitioners. Today's comes
from Judge Dickinson, who suggested this page of tips from Justice Scalia
and Bryan Garner as a resource for appellate advocates:
Justice Scalia and Mr. Garner co-authored Making Your Case: The
Art of Persuading Judges. There is an important caveat to
mentioning this book and website - in part, their book advocates placing
citations in footnotes rather than in the body of the brief. This
Court has rejected the use of footnotes for this purpose. Ninth
District Local Rule 7(A)(5) states that footnotes should be limited to
information that supplements the text, but would be distracting in the
body of the brief.
Welcome to the Ninth District Court of Appeals’ blog. This
presents another opportunity to use technology to communicate with those
who appear, or may appear, before the Court, as well as anybody interested
in appellate advocacy and the courts.
There are countless blogs available
offering a wide range of information. Law-related blogs deliver important
news and generate thoughtful discussions. The Judges hope this blog will
serve as a valuable resource as they share their thoughts and the Court
provides timely and valuable information to readers.