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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.

 

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