In mid-December 2022, Larry Ebner, the well-known appellate advocate behind Capital Appellate Advocacy in Washington, D.C., published an op-ed at Law360 titled Federal Courts Should Follow Supreme Court’s Amicus Stance. In this op-ed, Ebner noted that the U.S. Supreme Court had announced revisions to its rules, effective Jan. 1, 2023, that eliminate the requirement for amici curiae to obtain the parties’ consent, or the court’s permission, to file their amicus briefs. Ebner went on to argue that the corresponding rules for the federal circuit courts (see FRAP 29) should similarly be amended to eliminate the consent requirement for amicus briefs.
It happens a few times a year – an entry in the Ohio Supreme Court’s daily announcements reads like this:…
Continue Reading Ohio Supreme Court reminder: Strict rules compliance required for page limits and attachments
Not long ago, one of the American Arbitration Association’s vice presidents stopped by our firm to bring us up to speed on some recent AAA developments and the new AAA rules in effect for commercial cases, effective Sept. 1, 2022. We at Ohio Appellate Insights think one of the topics she mentioned during her presentation — “AAA’s Optional Appellate Arbitration Rules” — is worth noting for our audience of appellate practitioners.
Continue Reading Don’t forget about AAA’s Optional Appellate Arbitration Rules
Ohio’s final appealable order statute, Ohio Revised Code Section 2505.02, is complex and fraught with traps for the unwary. It can be difficult for counsel to discern or advise their clients with any high degree of confidence whether a given interlocutory decision by a trial judge is subject to immediate appeal, or whether that fight must await an appeal after final judgment. One specific context in which this vexing issue can arise relates to discovery orders compelling the production of allegedly privileged information, or the production of information potentially subject to the attorney work-product doctrine.
Continue Reading Appealing discovery orders compelling production of confidential information
For a variety of reasons, legal clients frequently prefer to use their out-of-state counsel for matters litigated before the Ohio Supreme Court or other Ohio tribunals. For these attorneys seeking to appear in Ohio courts and affiliated local counsel, the end of the calendar year – and the beginning of the next one – can come with harsh reminders about the timely need to renew pro hac vice registrations.
Continue Reading Pro hac vice pro tip: Ohio Supreme Court requires annual renewal
Attorneys frequently navigate choppy waters between the presumption of openness that applies to court proceedings and the insistence of their clients to file a number of documents under seal to maintain the secrecy of information relevant to the proceedings. …
Continue Reading Ohio Supreme Court grants writs to expose sealed affidavit, prevent use of pseudonym
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? …
Continue Reading Understanding supplemental authority at oral argument
Let’s face it — the practice of law can be very frustrating at times. Attorneys address unreasonable demands from opposing counsel, tight deadlines, impossibly broad discovery requests, and other issues that escalate stress levels and trigger emotions. A recent decision from the Ohio Supreme Court in Cleveland Metro. Bar Assn. v. Morton presents a cautionary tale about a frustrated attorney’s intemperate assertions in a Memorandum in Support of Jurisdiction filed in that Court. …
Continue Reading Counsel beware of intemperate assertions in briefs; First Amendment may not save you from discipline
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?
“You guys” is some easy vernacular for people of certain age groups (me included). But it should never be used to refer to the judges at oral argument.
Continue Reading Definitely don’t do this at oral argument