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• Sure, the order is ‘final,’ but is it a final appealable order? By Brad Hughes   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... More
• When is the ‘abuse of discretion’ standard of review actually ‘de novo’? By Terry Posey   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. Supreme Court rejects argument In Johnson, the Supreme Court was determining the contours of Evid.R. 601(B)(5)(b), which requires an expert in a medical... More
• Definitely don’t do this at oral argument By Terry Posey   “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. A few years back, I had an oral argument at the Third District Court of Appeals in Lima, Ohio. The case in front of mine was a criminal suppression issue about whether the police appropriately entered the house without a warrant. Not having read the briefs, I thought the defendant’s counsel... More
• Last oral argument of 2020: The great cleanup time By Terry Posey   A little publicized custom at the Ohio Supreme Court is that in years in which a Supreme Court justice is up for a contested election, they generally stop hearing oral arguments sometime in late August/Early September. Today was the last one on the calendar. I have mixed feelings about this practice. Ostensibly they do so in order to make sure there’s no conflict in having a case heard but not decided if one of the sitting justices is not... More
• Continuing oral argument at the Ohio Supreme Court By Terry Posey   There are a lot of things that an experienced practitioner can help predict. Some they can’t. One of those things that I have not developed an effective intuition for is: when will the Supreme Court continue oral argument? There are lots of reasons one may not want to have oral argument go forward on the scheduled date: a conflict with a trial, an upcoming medical procedure, or even a vacation. By and large, the Supreme Court denies most motions... More
• July 1 means a rules update: Cross-appeals and page limits By Terry Posey   There is one thing the pandemic has managed to not stop — the annual July 1 rules update from the Ohio Supreme Court. This year, there were changes to the Civil, Criminal, Appellate, and Juvenile Rules of Procedure. All of the changes can be viewed here. There were two amendments of interest in the Rules of Appellate Procedure. One addresses cross-appeals, and the other addresses page limitations in briefs. Cross-appeals are more clearly defined Rule 3(C) was modified to address when... More
• Verbal fillers at oral argument By Terry Posey   We all know someone who does it. It may be us. At a natural point of pause, you begin the next sentence with “Ummm, as argued below….” Or maybe you begin the answer to a question with, “Uhhh, your honor, that’s a good question.” I’ve always called them “verbal fillers” — the linguistic term is “speech disfluency.” From an oral argument perspective, the problem with them for me is that once I start hearing them from others, I mostly only hear... More
• Ohio Supreme Court practice: Propositions of law in the memorandum in support of jurisdiction By Terry Posey   Discretionary appeals at the Ohio Supreme Court require a Memorandum in Support of Jurisdiction. The Ohio Supreme Court Rules of Practice define the requirements of the Memorandum in Rule 7.02(C) and describe “numbered propositions of law” as a requirement. Do you know what a “proposition of law” is? Lots of attorneys think it’s similar to an assignment of error. However, the preceding Rules of Practice (the ones that used to have roman numerals instead of arabic) actually described a proposition... More
• COVID-19 and Supreme Court extensions By Terry Posey   Today in State v. Chapman, the Ohio Supreme Court issued an order in response to the state of Ohio’s Motion for Leave to file its Merit Brief Out of Time. The Supreme Court ordered that Chapman must respond to the request before 12:00 on Monday, June 8. Chapman (and amicus on his behalf), timely filed the initial briefs on April 6, 2020 (the 40 days allotted under Supreme Court Rule of Practice 16.02). This would have made the state’s... More
• Dealing with an appellate specialist: Myths and misconceptions By Terry Posey    Most litigators know one, or have heard of one – the appellate specialist. Whether formally credentialed or not, this particular attorney has done more oral arguments in the past year than you have done in the past 20. Yet, when the time comes, you, the seasoned litigator facing an appellate issue, are apprehensive about engaging this specialist. In this article, I will discuss frequently heard myths and misconceptions about utilizing an appellate specialist with the hopes of demystifying... More