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
September 30, 2011 –
Advocacy in the Ninth District - Common Mistakes in
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.
Visiting Judges on the Ohio Supreme Court - and other
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 and
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,
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
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
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
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
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
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
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
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
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
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
Supreme Court’s Proposed Rule
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
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.