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
FLASH UPDATE: Remote oral argument is back at Ohio Supreme Court
From April 7, 2020, through Sept. 7, 2021, the Ohio Supreme Court conducted oral argument remotely. This was done mostly through Zoom, but originally the court used a different service. I wrote a post on preparing for remote oral argument at the time. Continue Reading FLASH UPDATE: Remote oral argument is back at Ohio Supreme Court
Putting numbers behind Ohio Supreme Court jurisdictional decisions: How long do they take?
OHIO APPELLATE INSIGHTS /stats
The Ohio Supreme Court has a few great mysteries. A recurring one is how long you’ll have to wait to determine whether your case will be accepted as a discretionary appeal. Continue Reading Putting numbers behind Ohio Supreme Court jurisdictional decisions: How long do they take?
Understanding supplemental authority at oral argument
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
Counsel beware of intemperate assertions in briefs; First Amendment may not save you from discipline
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
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. Continue Reading The most important thing in preparing for oral argument
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. Continue Reading Rescheduling oral argument at the Supreme Court (2021 edition)
When the General Assembly reaches back in time: Analyzing retroactive laws
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