Last year, I spent some time looking at the Ohio Supreme Court’s response to motions to reschedule oral argument. There have been another few requests lately, and it is worth seeing if we can divine any potential outcomes.

If you’re not up to speed on the process, the Ohio Supreme Court generally denies motions to reschedule oral argument. This stated preference begins in S.Ct.Prac.R. 17.01(D):

An oral argument assignment before the Supreme Court takes precedence over assignments in other courts of this state. Continue Reading Rescheduling oral argument at the Supreme Court (<i>2021 edition</i>)

Although this appellate blog focuses primarily on civil appeals, every now and then the Ohio Supreme Court issues a noteworthy opinion in a criminal case that addresses a legal doctrine equally significant to civil attorneys and their business clients. The court’s Oct. 21, 2021, decision in State v. Hubbard is just such a criminal case. Why? Because the split decision reflects a deep divide on the court on the appropriate way to analyze retroactive laws – statutes that are intended to reach back in time and apply to persons or circumstances predating the law’s effective date. This issue arises with frequency on the civil side of the practice. For example, one of the cases I worked on for former Justice Cook during my clerkship years ago, Bielat v. Bielat, involved a retroactive law about beneficiary designations in IRAs, and is cited in Hubbard.  Continue Reading When the General Assembly reaches back in time: Analyzing retroactive laws

Back in the late 1990s when I attended the University of Dayton School of Law, I had the opportunity to serve as an extern at Ohio’s Second District Court of Appeals for a few months. I remember the court administrator telling me that one focus of my externship would be helping the judges decide whether the appellants in newly filed appeals were appealing from final, appealable orders. I recall thinking to myself – naively – “How hard can that really be?” Little did I know how vexing that particular question would become not only during my externship, but also throughout my legal career. A recent (and split) decision from the Ohio Supreme Court in Electronic Classroom of Tomorrow v. Ohio State Board of Education (ECOT) illustrates just how tricky the concept of finality truly can be, and how judges can disagree sharply on whether or not a given order is both final and appealable under Ohio law.    Continue Reading Sure, the order is ‘final,’ but is it a final <i>appealable</i> order?

An Ohio appellate practitioner has two primary questions to answer. First, “Do I have a final appealable order?” Assuming the answer to that question is yes, the second question is, “What’s the applicable standard of review?” On Sept. 22, 2021, the Ohio Supreme Court issued  Johnson v. Abdullah, which reemphasizes the importance of understanding the applicable standard. Continue Reading When is the ‘abuse of discretion’ standard of review actually ‘de novo’?

A little publicized custom at the Ohio Supreme Court is that in years in which a Supreme Court justice is up for a contested election, they generally stop hearing oral arguments sometime in late August/Early September. Today was the last one on the calendar. I have mixed feelings about this practice.

Ostensibly they do so in order to make sure there’s no conflict in having a case heard but not decided if one of the sitting justices is not re-elected, with the goal of having all briefed and argued cases completed by the end of the year. I am sure for those justices on the campaign trail that not having to hear oral argument is nice as well. Continue Reading Last oral argument of 2020: The great cleanup time

There are a lot of things that an experienced practitioner can help predict. Some they can’t. One of those things that I have not developed an effective intuition for is: when will the Supreme Court continue oral argument?

There are lots of reasons one may not want to have oral argument go forward on the scheduled date: a conflict with a trial, an upcoming medical procedure, or even a vacation. By and large, the Supreme Court denies most motions for continuance of oral argument. This attitude begins in S.Ct.Prac.R. 17.01(D):

An oral argument assignment before the Supreme Court takes precedence over assignments in other courts of this state.

So let’s take a look at two recent examples: Continue Reading Continuing oral argument at the Ohio Supreme Court

There is one thing the pandemic has managed to not stop — the annual July 1 rules update from the Ohio Supreme Court. This year, there were changes to the Civil, Criminal, Appellate, and Juvenile Rules of Procedure. All of the changes can be viewed here.

There were two amendments of interest in the Rules of Appellate Procedure. One addresses cross-appeals, and the other addresses page limitations in briefs. Continue Reading July 1 means a rules update: Cross-appeals and page limits

We all know someone who does it. It may be us. At a natural point of pause, you begin the next sentence with “Ummm, as argued below….”

Or maybe you begin the answer to a question with, “Uhhh, your honor, that’s a good question.”

I’ve always called them “verbal fillers” — the linguistic term is “speech disfluency.” From an oral argument perspective, the problem with them for me is that once I start hearing them from others, I mostly only hear them, not the underlying discussion. Continue Reading Verbal fillers at oral argument

Discretionary appeals at the Ohio Supreme Court require a Memorandum in Support of Jurisdiction. The Ohio Supreme Court Rules of Practice define the requirements of the Memorandum in Rule 7.02(C) and describe “numbered propositions of law” as a requirement.

Do you know what a “proposition of law” is? Lots of attorneys think it’s similar to an assignment of error. Continue Reading Ohio Supreme Court practice: Propositions of law in the memorandum in support of jurisdiction