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
The most important thing in preparing for oral argument
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.
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Rethinking pleading standards: Is the Supreme Court finally ready to address Twombly and Iqbal?
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?
When holding is (possibly) not controlling: The Ohio Supreme Court uses new way to identify plurality opinions
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.”
Rescheduling oral argument at the Supreme Court (2021 edition)
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.
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When is the ‘abuse of discretion’ standard of review actually ‘de novo’?
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’?
Definitely don’t do this at oral argument
“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.
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Last oral argument of 2020: The great cleanup time
The Ohio Supreme Court heard its last regularly-scheduled argument of 2020. We dive into the positives and negatives of pausing oral argument, and what that may mean for litigants.
Continue Reading Last oral argument of 2020: The great cleanup time
Continuing oral argument at the Ohio Supreme Court
The Ohio Supreme Court does not have a defined methodology as to when it will or won’t continue oral argument. Some recent examples are worth of further review.
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July 1 means a rules update: Cross-appeals and page limits
July 1 brings changes to Ohio’s Rules of Court. This year it affects cross-appeals and page limits.
Continue Reading July 1 means a rules update: Cross-appeals and page limits