Last month, Terry Posey wrote on the blog about supplemental authority at oral argument — before the intermediate court of appeals. But what about the Ohio Supreme Court?
As there is some time between filing your brief and oral argument, it makes sense you may wish to supplement your brief in some way. Say, for instance, you become aware of new authority issued by a court — whether in Ohio or somewhere else — that supports your arguments or your client’s position. What can you do to make the Supreme Court aware of this new authority? The Supreme Court Rules of Practice provide that you can file a notice of “relevant authority,” but note the important caveat: “additional argument” is strictly prohibited under S.Ct.Prac.R. 7.04(A)(2) and 16.08.
Attempting supplementation with additional argument
Unsurprisingly, counsel have tried creative ways to test the contours of an “additional argument,” which is an undefined term. For example, in Acuity v. Masters Pharmaceutical, Inc., the appellant filed a notice of relevant authority, and appended a parenthetical to the citation. This prompted the appellee to file a motion to strike.
In its motion, the appellee argued that the parenthetical itself was the “additional argument.” The appellant countered that the parentheticals are a part of the citation. The Supreme Court — somewhat surprisingly — denied the motion. The takeaway from this case is not that counsel should feel free to insert parentheticals in a notice of relevant authority. Rather, counsel should not risk the court’s ire or otherwise encourage an adversary to file a motion to strike.
Supplementation with new evidence
In addition to citing new authority, counsel can try to supplement briefs by citing new evidence that is not part of the record. For example, counsel may try to introduce a trial exhibit used in a court outside Ohio in a case that is similar to the case before the Supreme Court.
That is essentially what an amicus party did in the recent case, Neuro-Communication Services Inc., etc., v. The Cincinnati Insurance Company et al.. There, the amicus party filed a notice of supplemental authority — that consisted of an exhibit not part of the record — or in the alternative, moved to admit “newly discovered evidence.” Another amicus party moved to strike the filing; the court granted the motion.
While the court did not set forth its reasoning, the ruling is by no means surprising because appellate courts typically do not consider matters outside the trial-court record. The Supreme Court, in fact, describes the components of a “record” in S.Ct.Prac.R. 11.03(B)(2). Of course, counsel should always protect their client’s interests when making these important decisions, but know that a submission will likely trigger another motion to strike.
To file, or not to file
This sometimes begs the larger question: Does zealous counsel file something that might be stricken, knowing the court is likely to review it anyway? Or, does counsel know that their reputation (and understanding of the applicable rules) is likely to be considered in the court’s evaluation on the merits?
Counsel may, from time to time, feel the urge to say one more thing after filing the brief. But the rules constrain in many (surprising) ways, and should be observed — not flouted.