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One thing that can set appellate lawyers apart from most people (and there are many) is they tend to watch more oral arguments. Appellate lawyers thrive on keeping up with new case developments and hearing how justices and judges are engaging with all parties. …
Continue Reading The most important thing in preparing for oral argument

It’s a generally understood concept that case law interpreting the Federal Rules of Civil Procedure applies equally to the Ohio Rules of Civil Procedure—except in one main area: motions to dismiss. In Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family Servs., the Ohio Supreme Court was tasked with addressing one question: Had a grandmother of an abused and neglected child sufficiently pleaded her claim against the Hamilton County agency tasked with the grandchild’s wellbeing to overcome statutory immunity? The case had been dismissed (and affirmed on appeal). On Nov. 23, 2021, the Supreme Court reversed.
Continue Reading Rethinking pleading standards: Is the Supreme Court finally ready to address Twombly and Iqbal?

Plurality opinions are frequently a bane of appellate practitioners. When there are four justices in agreement as to the outcome of the case, but not the rationale, the plurality opinion can leave good authority, but no binding precedent. In fact, without four justices joining the rationale, a plurality decision does not represent a “holding of the court,” as seen in Fed. Home Loan Mtge. Corp. v. Schwartzwald. Schwartzwald actually relied on the Ohio Constitution, Article IV, Section 2(A):

“A majority of the supreme court shall be necessary to constitute a quorum or to render a judgment.”

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Continue Reading When holding is (possibly) not controlling: The Ohio Supreme Court uses new way to identify plurality opinions

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 appealable 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’?