|
April 19, 2012 –
Pro Se Guide Now Available
The Court has
prepared a new Guide for litigants who appear pro se in the Court.
Over the last few years, there has been an increase in the number of
cases with at least one pro se party. To assist everybody with a
case in this Court, this Guide provides an overview of the appellate
process and includes forms that parties will need to use in their
appeals.
The Pro Se Guide is available
here.
April 5, 2012 –
Proposed Amendments to the Local Rules
The Court has proposed amendments to the
Local Rules. You can see the proposed changes by clicking
here (the link opens a PDF
document). Text that appears underlined will be added to the Rules
and text that appears with a strikethrough will be
deleted from the Rules.
The proposed changes will update the
Local Rules to comply with recent changes to the Ohio Rules of Appellate
Procedure and to eliminate redundant language.
The most significant changes are to Local Rule 8 and
Local Rule 14. The amendments to Local Rule 8 follow the amendment
of App.R. 21 by providing that a party may request oral argument by
indicating “ORAL ARGUMENT REQUESTED”
on the cover of the brief-in-chief if the party wants to present oral
argument. The amendments to Local Rule 14 recognize the Supreme
Court's amendment of Gov.Bar R. II to establish a procedure for pro hac
vice status.
The Court is interested in receiving
feedback about the proposed amendments. You can email comments no
later than April 27, 2012, to
comments@ninth.courts.state.oh.us.
February 2, 2012 –
Another New Affidavit of Indigence Form
The Office of the Ohio Public Defender
has announced that it will require the use of a newly revised affidavit of indigency
form for all appointments made after April 1, 2012. You can find
more information on the Ohio Public
Defender's website. The new form is available
here.
This updated form replaces the August 2011 update that became effective on
January 1, 2012.
January 2012 –
New Writing Manual
The Ohio Supreme Court adopted a new
Writing Manual. The Manual includes three sections - citation,
style, and judicial opinion writing (full disclosure - I served on the
Committee that drafted the Manual).
The Manual is only binding on the Ohio
Supreme Court. According to the Preface, the Court hopes that all
Ohio courts and attorneys will find it helpful in brief and opinion
writing.
You can find the Manual
here.
I am sure you will find it to be a helpful resource to answer citation and
style questions.
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 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,
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.
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
here.
September 13, 2010 - The Ninth
District App
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
internet connection.
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
app@ninth.courts.state.oh.us.
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
from;
2. any opinion of the
court announcing the decision reflected by the judgment entry appealed
from;
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
included.
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
Rules
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
argument.
The process for requesting oral
argument is:
- 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
here).
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
blog@ninth.courts.state.oh.us.
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:
http://www.abanet.org/media/youraba/201005/article05.html.
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.
July 2010
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.
|
