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November 8, 2011 – New Affidavit of Indigence Form

The Office of the Ohio Public Defender has announced that it will require the use of a new affidavit of indigency form for all appointments made after January 1, 2012.  You can find more information on the Ohio Public Defender's website.  The new form is available here.

September 30, 2011 – Advocacy in the Ninth District - Common Mistakes in Appellate Briefs

Returning to an earlier topic, I wanted to share a few more things that the judges like and do not like when they read appellate briefs.

First, something basic - spelling and grammar mistakes distract the reader.  Countless times a judge has commented that the argument would have been easier to follow if not for mistakes that a spell-checker would have caught.

Second, the judges like to see citations to Ninth District cases, if there are any on point.  If there are no Ninth District cases relevant to the question before the Court, then it is also helpful to point that out.

Third, it is easier for the judges to read the briefs if the writer avoids using labels like "appellant" or "plaintiff" and, instead, refers to the parties by name or descriptive terms.  The judges will usually read briefs for six cases when they prepare for argument.  If all of those briefs refer to "appellant" and "appellee" it is more difficult to keep the parties straight.  On the other hand, if the briefs refer to "Smith, " "buyer," or "husband," it helps the reader understand the participants in the case.  Local Rule 7(A)(6) requires this for briefs and the Court has attempted to apply the same practice to its opinions.

September 20, 2011 – Visiting Judges on the Ohio Supreme Court - and other Districts

Judge Belfance sat on the Ohio Supreme Court this morning as a visiting judge.  All five of this Court's judges have now had this opportunity at least once and they have all enjoyed it, as you can see from their comments in the Ohio Supreme Court's stories about their experiences.

Judge Belfance - September 20, 2011.

Judge Carr - January 9, 2008, November 28, 2006, September 14, 2004, March 12, 2003, March 11, 2003, November 13, 2001, and December 1, 1999.

Judge Dickinson - March 11, 2009, March 19, 1997, and March 23, 1994.

Judge Moore - March 2, 2011 and October 18, 2006.

Judge Whitmore - January 25, 2006, May 23, 2007, September 16, 2003, January 22, 2003, and April 12, 2000.

The judges have also served as visiting judges in other Districts.  This year, for example, Judge Carr was assigned to a case in the Fifth District and Judge Dickinson was assigned to a case in the Sixth District.

August 26, 2011 – Advocacy in the Ninth District

I am going to turn our attention to a question I am asked with some frequency - what do the judges like and dislike.  Over the next few entries, I plan to provide you with some of the things the judges have said they really like to see in briefs and oral arguments as well as some of their pet peeves.

Today, I begin with something that any number of judges have said they do not like - briefs that do not get to the point.  As an advocate, your goal should be to communicate clearly and concisely.  When the judges read your brief, they want to know what the issues are after they read the assignments of error and statement of the issues.  In too many cases, however, they are unable to figure that out, and it is still not apparent after they have read the Statement of Facts and Statement of the Case. 

What can you do?  First, follow this Court's Local Rule that describes how to draft the statement of the issue.  Second, only discuss the procedure and facts that are relevant to the issues presented.  Third, articulate the standard of review, as required by this Court's Local Rules.  Finally, begin your argument with a brief overview of the dispute. 

If you clearly and concisely set out the issue, the relevant facts and procedural history, the standard of review, and the argument, the judges will be able to focus on the key issue rather than having to search for the issue among irrelevant material.

Finally, a pet peeve.  The judges do not want to read a Statement of Facts that summarizes the testimony of every witness in the order the witnesses testified at trial, but many briefs do just that.  The Statement of Facts is the advocate's opportunity to tell the story as it relates to the issues on appeal, not to regurgitate the testimony with no regard for its importance to those issues.

July 7, 2011 – Oral argument and the amendments to the Rules of Appellate Procedure

The Ohio Supreme Court adopted amendments to the Ohio Rules of Appellate Procedure that became effective on July 1, 2011.  Appellate Rule 21 established a uniform process for the Courts of Appeal to follow for those Courts that require a party to request oral argument.  Rule 21(A) of the Ohio Rules of Appellate Procedure now provides that a party may request oral argument by including the words "ORAL ARGUMENT REQUESTED" on the cover of the appellant's opening brief or the appellee's opening brief.  According to Rule 21(A), no other motion or filing is required to request oral argument.

This Court's Local Rule is inconsistent with the amended version of Rule 21(A).  This Court will soon adopt an amended version of Local Rule 8 that complies with the mandate of Rule 21(A).  The amended rule will continue to require a party to request oral argument, but it will be modified to make clear that the method for requesting oral argument is the same as required by Rule 21(A).

For now, the Court will continue to recognize the request for oral argument as required by this Court's current Local Rule, and, of course, a request that complies with Rule 21(A).

April 22, 2011 – Introducing the new Guide to Brief Preparation

The Court has put together a new Guide, a Guide to Brief Preparation.  You can access it on the Resources page here or open the PowerPoint presentation by clicking here.

The goal of this Guide is to provide general information about brief preparation.  There are examples, suggestions, and references to the Rules to help brief writers comply with the Ohio Rules of Appellate Procedure and this Court's Local Rules.

We hope this is a helpful resource.  As always, if you have questions, please send them to blog@ninth.courts.state.oh.us.

 

April 14, 2011 – A busy first quarter of 2011

It has been a long time between posts – a busy time at the Court.  This post will give you some idea of what has been happening, and then I will return to a more regular posting schedule.  So, in no particular order, this is what the new year has brought….

New Local Rules

The Court adopted a new Local Rule and modified an existing rule.  The new provisions were effective March 16, 2011, with the Court accepting comments until May 1, 2011.  The goal of both new Rules is to simplify the appellate process for attorneys and parties. 

The first change is an addition to Local Rule 2.  New Section (C) provides a new method for an indigent party to seek a waiver of the prepayment of the cost deposit.  Consistent with the Ohio Supreme Court’s practice, a party may obtain a waiver by filing a copy of the trial court’s entry appointing counsel to represent that party on appeal.  The Court will not issue an order granting the waiver; the filing of the entry of appointment alone will be sufficient to waive the payment of the cost deposit.

The second change is the addition of new Local Rule 18.  This new Rule provides a procedure for parties to follow to receive an extension of time to file their briefs.  Following the example set by the Ohio Supreme Court’s Rules, a party may obtain a first extension of time by filing a Certification for Extension with the Court.  The party shall calculate the new due date for the party’s brief, as explained in the Rule and the Rules of Appellate Procedure, and include the new due date in the certification.  The Court will not issue an order to confirm the due date; the new due date will be the date calculated by the party.

In addition to simplifying these procedures, the Court hopes these changes will reduce the work required by the parties and by the clerk of courts because there will be fewer orders filed and mailed.  As it relates to extensions of time for filing briefs, the new Rule will allow the parties to calculate their due date and know for certain when their brief is due rather than waiting for an order from the Court to learn whether their motion for a first extension of time has been granted.

Supreme Court’s Proposed Rule Changes

In addition to this Court’s Local Rule changes, the Ohio Supreme Court proposed several changes to the Ohio Rules of Appellate Procedure.  You can read the proposed changes to Rules 4, 9, 21, 25, and 26 here.

The comment period has passed.  The Supreme Court will review those comments and decide by May 1, 2011, whether to modify or withdraw the proposed amendments.  If there are no changes, they will take effect on July 1, 2011.  If the amended rules become effective on July 1, 2011, this Court will have to modify some of its Local Rules to comply with the new Rules of Appellate Procedure.

En Banc Consideration

One of the proposed amendments to the Ohio Rules of Appellate Procedure is to the Rule about en banc consideration.  If the amendment is adopted, this Court will then consider adopting a Local Rule to govern en banc consideration.  Until that time, the Judges entered a standing order on en banc consideration.  You can read the order here.

These are just a few of the things that have been keeping me busy.  I will be posting more frequent updates over the next few months.

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