If you prepare for oral argument enough times, eventually it will happen. Whether preparing directly for an argument or working on another matter, you will find a case that should have been included in your briefing. What do you do when you find such authority? If you are in one of Ohio’s district courts of appeal, App.R. 21(I) provides the answer:
If counsel on oral argument intends to present authorities not cited in the brief, counsel shall, at least five days prior to oral argument, present in writing such authorities to the court and to opposing counsel, unless there is good cause for a later presentment.
You have two options: If you find the case more than five days before oral argument, you can file the notice with the court and serve it on opposing counsel. If you find it five days or less before oral argument, be hopeful you have “good cause.” There is a slight distinction between the Rules of Appellate Procedure and the Ohio Supreme Court Rules of Practice. App.R. 21(I) only permits the filing of “such authorities.” S.Ct.Prac.R. 17.08 permits the filing of a “list of citations” and expressly prohibits filing “additional argument” with the “list of citations.” In general, we have seen the intermediate Ohio appellate courts strike attempts to file supplemental authority containing any more than the citations to the cases.
What issues arise presenting new authority during oral argument?
In JG City, LLC v. State of Ohio Board of Pharmacy, the Board of Pharmacy referenced two cases at oral argument that had not been included in its brief. The following day, the Board of Pharmacy filed a notice of supplemental authority containing the case citations, but no further argument. This prompted a flurry of activity from both sides.
JG City filed a response to the notice of supplemental authority, asserting the two cited decisions were distinguishable and a different standard of review should be used. The Board of Pharmacy filed a motion to strike JG City’s response, asserting it was an impermissible reply brief. JG City then filed another response, arguing it was entitled to respond to the Board of Pharmacy’s late notice of supplemental authority.
Who was right?
The court was right, of course — they write the decision. The Tenth District noted the Board of Pharmacy’s notice of supplemental authority “provided the Court with citations for two decisions that were briefly discussed…but had not been cited.” The notice did not contain any argument, and the referenced cases were discussed for less than 30 seconds at oral argument. The court concluded this constituted good cause for the notice of supplemental authority.
One of the judges on the panel dissented on the issue, noting the majority (and the Board of Pharmacy) made no attempt to establish the good cause for filing the cases less than five days before oral argument.
Regardless, the majority then concluded the JG City response should be stricken, because it was a brief and App.R. 21(I) does not contemplate any further filings by the other side. It cited App.R. 16(C), which only permits further briefing by “leave of court.”
What are best practices in this scenario?
I teach continuing legal education (CLE) courses on best practices in preparing for oral argument, and there are lessons for both sides. My recommendation is to mark your calendar 10 days before argument to re-research applicable case law. This will help determine whether a notice of supplemental authority is needed. If found in time, you can comply with App.R. 21(I) without any need for good cause.
I once had an oral argument where appellant’s counsel brought up in rebuttal a case decided that day he believed was applicable to the issues being discussed. I was familiar with the case he cited — I had been counsel for the prevailing party. It was the only time I have ever interrupted opposing counsel at an oral argument. He was incorrectly quoting the court’s recitation of a party’s argument as the holding.
That particular argument had gone well for me. It was conversational, and the panel and I went back and forth a few times with attempts at legal humor. I wasn’t going to speak again, absent something drastic. I ultimately interrupted by saying “I apologize, but that’s not the holding of that case. I was the counsel on that one.” The panel responded with a nice smile and indicated they would take the case under advisement to determine its relevancy.
Best practices for future oral argument
If you find case law you wish to cite within a five-day window from oral argument, best practices would suggest filing a “motion for leave” to file a notice of supplemental authority. Make sure you’re satisfying the “good cause for later presentment” standard in your motion for leave. And, be honest — how and why did you miss the relevant authority before?
If a party files a late notice of supplemental authority, the opponent should consider a short motion to strike and/or a motion for leave to file a supplemental brief with a copy of the brief. This procedure will ensure the court is aware of the response to the supplemental authority, even if it permits the supplemental authority to be considered.