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From the Finer Points of Procedure to Persuading the Panel: How to Succeed on Appeal

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From the Finer Points of Procedure to Persuading the Panel: How to Succeed on Appeal

You have landed in the court of appeals – now what? Many practitioners approach appeals much in the same way that they do trial court matters but learning the nuances of appellate practice can give you a leg up on your opponent. This course will provide you with a roadmap to guide you on your journey to the court of appeals and beyond. You will learn practical tips that will increase your confidence levels along with your overall chances of success.

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- You have landed in the Courts of Appeals, now what? Many practitioners approach appeals much in the same way that they do trial court matters, but learning the nuances of appellate practice can give you a leg up on your opponent. This course will provide you with a roadmap to guide you on your journey to the Courts of Appeals and beyond. You will learn practical tips that will increase your confidence levels along with your overall chances of success. In this course, the objectives are the following, we will untangle threshold procedural requirements for an appeal and state and federal courts and learn how to properly perfect an appeal. We will deal with threshold jurisdictional issues. We will learn how to protect the record on appeal and to research and draft persuasive and cohesive appellate briefs. Further, we'll learn to deliver compelling oral arguments and open the door to discretionary appeals in state and US Supreme Courts. Hi, my name is Emily Anglewicz, I'm an attorney at the law firm of Roetzel & Andress in Akron, Ohio. After spending more than a decade as a judicial attorney at an intermediate appellate court in Ohio, and one year clerking at the Supreme Court of Ohio, I decided to enter private practice. Our firm has offices in Ohio, Chicago, and Florida. In addition to Ohio, I'm also licensed in Pennsylvania. A good portion of my current practice focuses on appeals at the state and federal levels. In addition, I have significant experience litigating in the Ohio Supreme Court, both appellate matters and extraordinary writs. During this course, we will cover the cornerstones of appellate practice, from procedure to research, legal writing, and oral advocacy. The most important thing to remember with appellate procedure is to always read the rules. This might seem obvious, this is obviously the case with any type of law in the trial court or Court of Appeals, but it's really important that you understand your jurisdiction and the particular rules. So sometimes there'll be complex interplays between statutes, appellate rules and local rules of a particular district or Court of Appeal circuit. So it's important that you understand those from the very beginning, so you know where to start and you follow those and can put your best foot forward to the court. So I'm gonna talk about Ohio today as an example of a State Court of Appeal, since that's the jurisdiction where I primarily practice. In Ohio, there are some state statutes that govern appellate procedure, most notably with regard to final appealable orders, but I'll discuss that in more detail later. First, you need to study the rules of Ohio appellate procedure and the local rules for your particular district court or Supreme Court of Ohio. One really basic example of the importance of this is Ohio App Rule 19. This governs generally in Ohio, the form of appellate briefs and other papers that you would file on appeal. However, a particular appellate district by local rule may adopt very different formatting and other rules. For example, in Ohio, the 10th District Courts of Appeals has a local Rule 8 A-1, which provides that the body of a text of a brief must be in at least 16 point font, which is quite large as most of you probably know and it must be in Times New Roman or Arial font. Contrast this with the Seventh District Courts of Appeals has local Rule 19 B-2 which just requires that it be in 12 point font in either Times New Roman, Cambria, Calibri, Arial Standard or Palatino Linotype. So again, these are not incredibly important rules in the grand scheme of things, is your brief going to get struck if it has the wrong font size, you might be asked to submit it again. You'll still get a chance to argue your case, but the point is, if you don't file it in the correct format that the court requires in their local rule, you're not putting your best foot forward with the court. You wanna make a good impression from the beginning and it just looks bad. So that's just something to remember, just an easy example to remember about why you need to always look at the local rules. Obviously there's rules that are more important than font, but from the beginning, you should always make sure that you understand all of them. Never assume that you know the rules, especially when you're venturing into a new appellate jurisdiction. So sometimes it's easy to think, oh, I know that, I remember that from another case, but it's always better to go and refresh your memory of them before you start with any of the process of even filing the notice appeal, responding to one, drafting a brief, et cetera. You want your work product to impress the court from the start and technical compliance with the rules will do that, many appellate judges are procedural gurus, they really look to the rules and follow them to the letter. Next we're going to discuss final appealable orders. So many times it's obvious that you have a final appealable order in the trial court, and that you can proceed to the Court of Appeals. For instance, if you have a jury verdict, there's judgment entered on the verdict, there's no post-trial motions for JNOV or anything like that, you know that you have a final appealable order and it's disposed of all claims in the case and counter claims, that's obviously final and appealable, and then you can proceed to the Courts of Appeals. So that's an easy example. There are many gray areas though in both federal and state law that can be trapped for the unwary. And so in the following segment, we're going to talk about final appealable orders under Ohio law, as well as federal law. So looking to Ohio as an example. In Ohio, the jurisdiction of the Court of Appeals stems from the Ohio Constitution. Article IV Section 3 provides that, and it specifies that only final orders may be reviewed. The question is what is a final order? Well, in Ohio, there is a whole statute that lays this out, it's Ohio Revised Code 2505.02, and this text of a statute is included in your materials. It's not always a Paragon of clarity, what constitutes a final appealable order under this statute, there is a lot of case laws, at times it's conflicting, you really need to make sure that you research your particular situation. If there's a question about whether you have a final appealable order. Generally though, Revised Code 2505.02 B has a number of prongs as to what constitutes a final appealable order, there's seven different categories. The first category is an order that affects a substantial right and an action that in effect determines the action and prevents a judgment. That's essentially what we talked about already. If you have a final order, after a jury verdict, for example, judgment on the jury verdict, that is a final order under Section 1, it's kind of your standard idea of what a final order would be. But then we have all of these other sections that are really particular situations. And this is where a lot of the case law comes into play. For example, subsection two includes an order that affects a substantial rate made in a special proceeding upon a summary application and an action after judgment. So the statute does define what a special proceeding is, it's an action or proceeding that's specially created by statute and that prior to 1853 was not denoted as an action or suit in equity. So courts have held that a declaratory judgment proceeding, for example qualifies, an administrative appeal qualifies. But you also have the additional requirement that it affects a substantial right. So the question is, what does that mean? And mostly the courts in Ohio have held that it affects a substantial right, and a special proceeding if the order has quote, immediate consequences. And really what the courts look to is whether or not it would be possible to have a later appeal, a later meaningful appeal if there's not an immediate appeal allowed. So again, this can kind of go both ways, and this is something that you need to research your specific issue, but that's section two. In order that grants or vacates, or I'm sorry, in order that vacates or sets aside a judgment or grants a new trial is subsection three, that's fairly self-explanatory. Subsection four deals with an order that grants or denies a provisional remedy and then it gives a couple of other qualifiers. That section typically applies to where, for example, you have a discovery of a privileged matter. That's specifically included in the definition of provisional remedy. These are situations where essentially the proverbial bell cannot be unrung. So if a matter is disclosed during discovery, that's privileged, that's not something that you can put back in the bag, like that's out once it's out. So this is something that if the court orders that privileged material be disclosed, this is one instance where it's considered a provisional remedy, that you have a right to an immediate appeal from. In addition, there are section five, an order that determines that an action may or may not be maintained as a class action. We'll talk about this a little bit more later in the context of federal cases, this is different in federal court than it is in Ohio. An order determining the constitutionality of any changes to Ohio Revised Code made by certain enumerated statutes. And finally, an order in an appropriation proceeding that may be appealed pursuant to Division B3 of Section 163.09 of Ohio Revised Code. In addition, sometimes you have other statutes that discuss final appealable orders and specifically provide that those orders are final appealable. One example of that in Ohio law is that a decision denying a political subdivision sovereign immunity is a final appealable order. So those are just some explanation of what final appealable orders are under Ohio. Turning to federal law, final orders are defined for the federal courts in 28 U.S.C. Section 1291, and that is included in your materials as well. And again, it references final decisions of the district courts. And so for the most part, a party may only appeal a district court's final decisions. With respect to final orders in federal court under 28 U.S.C. Section 1291, for the most part, a party may only appeal final decisions. Now, when a single action presents multiple claims or involves multiple parties, a district court's ruling that disposes of only some claims or only some parties is ordinarily not final. This is a general rule and it prevents inefficiency in delay of multiple appeals from a single action. Now, what constitutes a single action for purposes of section 1291? So there are three sort of broad brush scenarios. First one, a plaintiff brings different claims, or for that matter when multiple plaintiffs bring different claims in the same complaint, they have brought just one action and a ruling that fails to dispose of that whole complaint is not final. Now, things get a little trickier with the second possibility when there's separate actions filed by separate plaintiffs in the same district court, and they become consolidated. Some federal courts have concluded that after the cases are consolidated, they retain their separate identities, whereas others have held that they always merge and still others have held that they sometimes merge and sometimes remain distinct. So you need to look at the case law in your area, in your district and circuit to determine that. Now there's a third possibility and that's where the plaintiffs filed separate actions in separate district courts. And there's a multidistrict panel that consolidated the cases in one district. And the plaintiffs filed a new complaint with respect to the consolidated cases. And this is coming from the In re: Refrigerant Compressors Antitrust Litigation case which is a Sixth Circuit case. And the Sixth Circuit says that they see no reason to treat this scenario any differently from the other two. So that way, if plaintiffs file a consolidated complaint, after a multidistrict transfer in order disposing of some of the claims or parties in the consolidated complaint is non-final, barring a Civil Rule 54 b judgment. Now moving on to Civil Rule 54, there is a rule in the Ohio Civil Procedure Rule 54, and there's also Rule 54 b in the Federal Rules of Civil Procedure. And what that does is if that is added, or if there's a certification made under Rule 54, that the order it is final appealable, even though it doesn't resolve all claims, it can go forward. The processes in Ohio versus the federal court are a little bit different. In Ohio, whether to include a 54 b designation is up to the discretion of the trial court, who makes this determination without any need for emotion. So if the court disposes of not all of the claims, just some of the claims and adds the 54 b language, which is that there's quote, no just reason for delay, it becomes a final appealable order at that point. But at the same time, a court can add that language to another interlocutory order earlier in the case that wouldn't normally be final and appealable and turn it into a final appealable order. It just doesn't necessarily just, they aren't magic words, but if the court resolves less than all of the claims and its discretion includes 54 B language, it can be appealed at that time. In federal court, it's a little bit different, a party may file a motion with the district court to certify a non-final order that does not resolve all claims against all parties. So in federal court, a motion is required and it's kind of the same principle. If the court decides to certify it, that's a final appealable order at that time. There are some interlocutory orders that may be appealed as a matter of right in federal court. And this is kind of similar to some of the exceptions that we talked about for Ohio, but obviously different 'cause we're in federal court. There's collateral order doctrine, also orders involving injunctive relief maybe appealed, an order that appoints a receiver or declines to wind up receivership or an order that determines rights of parties to an Admiralty action. All of those things may be appealed as a matter of right in federal court, even though they're interlocutory, so they're in the middle of the case. Now we're going to turn to a special case study involving Federal Rule of Civil Procedure 23 F. Now you may recall I was talking about Ohio and an order that certifies a class in Ohio is a final appealable order. That's not the same in federal court. The federal rules provide a very specific procedure for petitioning the Court of Appeals to appeal from an order denying or granting a motion for class certification. Now, typically the class certification decision of the district court is not appealable until the entire case has concluded. Civil Rule 23 F provides quote, "A Courts of Appeals "may permit an appeal from an order granting "or denying class cert under this rule. "A party must first file a petition for permission to appeal "with the circuit clerk within 14 days "after the order is entered or within 45 days "after the order is entered, "if the party's United States or a state agency, "or if the United States officer or employee is sued "for an or omission in connection with their duties. "An appeal does not state proceedings of the district court "unless the district judge or Courts of Appeals so orders." So that's another important point. Even if you get an appeal, an interlocutory appeal, you still need to ask for a stay. Decision to accept an interlocutory appeal under Federal Rule of Civil Procedure 23 F, is fully up to the discretion of the Courts of Appeals and can consider a number of factors. So I have the In Re: National Prescription Opiate Litigation case in your materials and that case cites to, again, this is a Sixth Circuit, so we're looking at Sixth Circuit cases here. Some factors that the Sixth Circuit looks at as to whether or not to allow an appeal pursuant to 23 F. Factors the court may consider include, one, whether the appeal is likely to succeed on the merits. Two, whether the cost of continuing the litigation may prevent subsequent review and three, whether the case presents a novel question of law. In the In Re: National Prescription Opiate Litigation case, the Sixth Circuit found all of these factors, favored immediate review and they accepted jurisdiction over the interlocutory appeal to review whether class cert was appropriate in that case. Next, we are going to talk about the process for once you get an appeal started, the process for perfecting the appeal, the record on appeal and things of that nature. Now, when we talk about the record of appeal, it's important to proactively protect your record in the trial court. So it's a maximum of appellate law that a party must call an error to the attention of the trial court, either via objection or otherwise, at the time the error could have been corrected. So when we talk about objecting for the record, obviously that's what we mean. Otherwise, if there's no objection made at the trial court level, the issue could be subject to plain error review on appeal, which is a very difficult standard to meet. It's oftentimes helpful if you have a really big case, you think it's going to go on appeal, that you might even want to have embedded appellate counsel sit with you at the trial, just to make sure that you are thinking of all of these things that you are preserving for the record on appeal. And that way you can be proactive about it and you're not going to get stuck with this uphill burden of trying to prove plain error because an objection was not made at the appropriate time. It's also essential to order a transcript of the record of the trial court proceedings and a full transcript to ensure that the record before the Court of Appeals is complete and it's typically the appellant's burden to do so. So this might involve calling the court reporter, the clerk's office. There are different procedures for ordering the record, depending on what court you're in, but you want to make sure that the transcript was filed in the trial court record and that it was transmitted with the record on appeal. The Court of Appeals is pretty standard either in state court, at least in Ohio and federal court, that the Court of Appeals cannot review matters to who or outside of the trial court record. That means you cannot add new evidence to the record on appeal, you're essentially stuck with what you have in the trial court record. Now there's some strategies to deal with situations where maybe you had a hearing in the trial court, or there were proceedings that were unrecorded, but somehow, but you need it in the record on appeal. Maybe the transcript was lost, something like that, it was just an unrecorded status conference, but an argument was made there that you need to have part of the record on appeal. In Ohio, this is Ohio Appellate Rule 9 C, and that is the method that you can use, in the federal court that's Federal Appellate Rule 10. And there's similar processes, but basically there's a process for getting a statement of the evidence where the proceedings were not recorded or where a transcript is unavailable. And so what happens there is that an appellant will prepare a statement of the evidence with the best available means, including appellant's recollection, any notes you might have, et cetera. The statement must be served on the appellee and then their counsel will review it and they may have objections or proposed amendments. And then the statement and any objections are submitted to the trial court for settlement and approval. So ultimately the trial court determines what happened at a hearing and then there's a statement that's in the record. And that way that is actually preserved for appeal. So this is really important if there was some kind of a hearing that was not recorded or transcribed, but where you made an argument that you need to have record of that being made for purposes of your arguments on appeal. So there is a procedure to do that. Now, as far as perfecting the appeal, typically you have 30 days from the time the trial court issued a final order to file a notice of appeal. And this is kind of as a general matter, you definitely wanna check your jurisdiction and everything like that, but typically it's 30 days. There are exceptions, the vast majority of appeals and civil cases to the Federal Circuit and Ohio intermediates, appellate courts, follow this rule. It's important to check this, as I said, it's a jurisdictional requirement and you definitely wanna make sure that it is something that is thought about and calendared. You wanna calendar it, like you would a statute of limitations because in many cases for civil cases especially, if you blow your time for appeal, you don't get another chance. In criminal cases there are some exceptions in some instances, which as you can imagine would make sense, but a lot of times in civil cases, you're stuck and then you're not able to file your appeal if it's not done in a timely manner, pursuant to whichever jurisdiction you're in. Moving on to briefing, as far as briefing requirements, they're obviously different for every different court, but a lot of courts have resources online and checklists and things of that nature, and so it's always good to go on their website. Sometimes there are even sample briefs, get an idea. You can go on Westlaw or Lexis and look at briefing samples that others have submitted. Those are always good things to do. But obviously you start with looking at the rules, both the overall appellate rules and the local rules for whichever court you will be filing in. As far as citations, the most important consideration for citations is just simply that the judge or law clerk reviewing the brief can find the authority easily. And so, typically blue book is used a lot of times for federal cases. In Ohio, there is a Ohio style manual that is put out by the Ohio Supreme Court that has its own citation format. But again, as long as the court can find your citations, that's really the most important thing. Most courts, modern courts anyway, do not necessarily want you to include as an attachment, a bunch of cases. Again, it's important to check your jurisdiction, but the most important thing is to have briefs that get the judge to that case. Don't forget to include your pin sites to the pages. I know as a clerk, when I would review briefs and I want to get to the proposition that you're citing a case for, and you don't have the page number and it's maybe a 50 page opinion, it's very frustrating. And so you want, if you're to make your point and for someone reviewing it, you wanna make sure you get them to the exact point and that opinion where the proposition is made, that you're relying on. It's worth it to go the extra mile to ensure that all of your quotes are accurate and that you do not misconstrue any holdings or facts. Of course, it's okay to quote an opinion and put an ellipses in there and leave out things that are not important, but make sure you don't misconstrue a holding by doing that because you're gonna lose credibility with the court when you start to do things like that. And there are law clerks and staff attorneys that review the briefs on appeal. So you wanna make sure that you are accurately stating the law. It can also be invaluable to get a fresh set of eyes to assist you with briefing if you handled the case at the trial court level. As I said, consider bringing an appellate lawyer, a dedicated appellate lawyer to your team. The first thing with an appeal brief, an appellate brief that you should do is formulate concise and persuasive assignments of error or statements of the issues. And that way you're really framing what issues you're raising for the case. Obviously, if you are the appellee, you're responding to the way the appellant has framed them, but if you're the appellant, that's the first step. As far as checklists for briefs, again, each jurisdiction is different, but if you go, for example, to the Sixth Circuit, they have a checklist and it has all of the parts that are needed for the briefs. And I did include that in your materials. If you are in a different jurisdiction, you can certainly look that up and see if your jurisdiction has such a checklist, but it's helpful so that you know, all of the parts that you need to include. Turning to the actual writing of the brief, it's important to immerse yourselves in the legal issues involved in your case and do exhaustive research. In addition, you really need to know the facts. If you're appealing from a trial, you need to immerse yourself in those facts, find the salient facts for your case, and really go through the record with a fine tooth comb and make sure that you have citations to transcript pages, exact pages within the record to support your arguments. I like to use the CRAC or IRAC method of writing that we learn in law school. So it's conclusion rule, application conclusion, or you can start with an issue, issue rule application conclusion. A lot of times this style is characterized as tell them what you're gonna tell them, tell them, tell them what you've told them. So it might seem somewhat repetitive, but if you have an important point, you want to make sure that the judges understand that and that they've fully digested it by the end of your brief. Especially for appellate briefs, I think that tone really matters, you want to keep it civil, you want to avoid hyperbole. You want to avoid too many different adverbs and things like that. You want to make sure that you use concise tight language and understand that you're speaking to the panel. Your brief is written for the panel, you're not writing for a jury, you're not speaking for a jury. So it's a little bit different of a review than you might necessarily have from a trial court judge, for example. Definitely do not neglect the reply brief, if you are the appellant, it's always important to get the last word and to review and get your most salient points in there because that's the last brief that the court is going to read. Turning to oral arguments. For closed questions on appeal, oral argument is very important to the judges and do not skimp on your preparation. You need to know your facts, you need to be prepared to address the weak points in your arguments. Also know the cases you rely on and be prepared to discuss them if you're asked. Sometimes the judges will ask, what case is most favorable to your position? And you need to be able to just rattle that off right away. You should know the record backwards and forwards. You should remember that the judges have done independent research prior to the oral argument. I know when I worked at the court, we would prepare a bench memo or draft opinion before the case even came for oral argument. And at that we would've already reviewed all of the cases that are cited in all of the briefs and done additional research. So sometimes the judges have done independent research prior to oral argument, and they might throw you a curve ball. They might throw you something that you did not even argue, or nobody argued specifically, or case that someone didn't cite and that's fair game. So you need to be prepared for curve balls to be thrown your way during the argument. As far as process, I like to prepare an outline and an oral argument notebook, typically in like a binder format and just have as bullet points and not have it written out. I think it's better just to be able to think about it in chunks of issues, rather than memorize something, because you could have a hot bench and they will be asking you questions immediately. And then if you were thrown from sort of this speech that you memorized, you'll really get thrown off. So I think it's better to think about it in terms of conceptual points that you want to make and what supports those points. I think it's helpful to have parts of the record that most support your position, perhaps even printed out and put in the notebook. Case law, summaries of the most important cases that you cite in your briefs, all of this right in front of you is the best possible preparation I think. You might wanna consider enlisting colleagues and even the clients to engage in a moot oral argument for your case, that can be really helpful. You can have them, your colleagues pretend to be the panel of judges on appeal and give you the most difficult questions that they can think of. I would say, never wave oral argument. And you know, it's not necessary that an oral argument will win or lose your case, but it can be really helpful for the judges to understand, especially if it's a closed case, especially if this is a novel issue, the judges are really going to want to probe your position and the best time to do that is on oral argument. So I've included in your materials, several different guides for oral argument that I think are particularly helpful. One is from the Ohio Supreme Court and the other is from the US Supreme Court. And they actually have some similar advice in them, but I think it's helpful to read both of those, especially if you're gonna be arguing in the highest court of your jurisdiction. One thing that I found really helpful to do, and I think it's suggested in both of these guides is that you visit the court in advance to watch an oral argument. I would highly recommend this for any court, but especially Courts of Appeals and the Supreme Court. You'll feel a lot more comfortable just knowing the customs, the lay of the land, where council waits before the earlier arguments. For example, the Ohio Supreme Court, there is a room for counsel that you can sit and watch the earlier arguments before you proceed into the courtroom itself, those types of things, how you'll know how much time you have left. All of those things you're able to watch and get a flavor for how the court conducts its hearings. The Ohio Supreme Court does have video of all of the oral arguments online, so that's really helpful to watch. I think even if you are from another jurisdiction, you can get an idea of how those work. Obviously the US Supreme Court, they don't have the video. The Sixth Circuit does not have video, but they have audio. So you can hear the audio online. You don't quite get the same experience with the audio that you do with the video, but that's always helpful to go on and listen. Another thing that the Ohio Supreme Court guide notes is that quote, "Council should know "his or her client's business. "Justices may pose questions "about how a relevant product is made, "how employees are hired "or how a relevant calculation was made. "Council who anticipates those kinds of questions "and comes prepared to answer them "in a clear and concise manner, will be the best prepared." And I think that's really important and doesn't come up quite as much in the Courts of Appeals as it would in the Supreme Court, but where they're looking at really big issues that affect either the whole state or the whole country, the justices really need to know what your client's business is, how this impacts, how it fits into the greater market, things like that. So another tip by the Ohio Supreme Court in their guide for council that I think is important and interesting is that they suggest that argument should focus on the legal question or questions that the court has agreed to review. Counsel should avoid deviating from them and avoid arguing about the facts. Now, obviously this really is more for an appeal to the Ohio Supreme Court, but I think it's important to try to keep to your message, keep to the assigned errors that you have submitted or that the appellant has submitted. Also, you should keep in mind that ordinarily you don't need to go too far into the facts because that can eat up your time for oral argument. You should assume that the judges or justices at the Courts of Appeals or Supreme Court are familiar with facts, they have read through the briefs. And so you really wanna get to the heart of your arguments as much as you can. Sometimes the court will ask hypotheticals, and again, you have to be prepared to stray from your message to think about that sort of thing. Also, the Ohio Supreme Court knows that you should avoid using lingo of business, that's not widely understood. You can't assume that the court is an expert on all different industries. So sometimes you do have to explain to them, what terms mean and try to keep it as simple as possible. Another suggestion that I've heard is to avoid citing too much to specific sections. If you're just over and over-saying Revised Code 2929.14 C b little B, it gets a little bit much, especially when the judges are hearing case after case after case, it's better to sort of name the statute that you're talking about, the felony sentencing statute or something like that so that it's a little bit easier to digest because when you throw all of those code sections at them, it's not conceptually as easy to understand, especially for justices who are not quite immersed in the case as council obviously is. Another group of strategies for effective oral advocacy, I would say practice your public speaking skills as often as you can and talk about your case often. One thing that I've done is to join a Toastmasters group and I'm able to practice public speaking on a weekly basis. And I think that's really helped me hone in on oral argument skills. We also do off the cuff speaking as well as prepared speeches. And I've even prepared some arguments for them after the fact, just to practice, to see how it is digested by the non-lawyers that are in that group. If you talk about your case as often as you can with colleagues, make sure you lead with your strongest argument. I definitely think that that is an important tip. One of the things that I would notice when I worked at the Courts of Appeals was that counsel would list their assignments of error and maybe what would be a chronological order that would make sense, but not necessarily lead with their strongest argument. I definitely think at the hearing, it's important that you lead with your strongest argument and that you make sure you sum up at the end that that's your strongest point as well. As far as problematic questions, sometimes you'll get a question that is not helpful to you. And it's important that you kind of Bob and weave a little bit and pivot, you don't wanna necessarily concede a point ever during oral argument, but you want to try to pivot away. So if you're asked a question that's difficult, you can say, well, you answer it the best that you can, but, and this is why this point still helps us in some other way. You should be prepared for a hot or cold bench. What I mean by that is sometimes you will have a panel of judges or justices that are sitting there and they're not asking any questions. And so if you are the appellant for example, and you have your 15 minutes, typically you reserve part of that for your rebuttal time, at least in state court in Ohio, you want to make sure that you have enough oral argument prepared to last that entire, whatever you've reserved just for your initial argument, maybe 10, 12 minutes. But at the same time, you also need to be prepared if you have a hot bench and you're getting bombarded with questions from the very beginning. So it's kind of a balance, I would say. Again, I mentioned just trying to outline the major points that you want to make while you are arguing the case. And again, moot court, moot oral argument, incredibly helpful, it's worth it to you and your client to take the time to do that. Don't lose out on the opportunity to gain points from softball questions. Sometimes the judges will throw an easy question and they agree with you. And what you need to do is just, is jump on that and hit it out of the park. I know sometimes again, council's so focused on the arguments that they're planning to make and the points and the script that they sort of lose sight of like this gift that's being given to them by one of the judges with a softball question. So really pounce on those opportunities. Sometimes you do have to respectfully disagree with a judge or Justice's position, "Your honor, no, I respectfully, "I disagree with that and this is why." And also you should strategically prepare your rebuttal argument if you are the appellant. So while you're listening to the appellee's argument, write down the major points that you wanna make. What I usually do is have a sticky note in front of me and I list those out one by one by one. And then when you get up for your rebuttal, maybe you reserve two minutes, three minutes, you can simply say, your honor, I have four points to make in rebuttal, and then you just go, boom, boom, boom, one after the other. And it comes off very polished that way, you should always stop talking obviously, if a judge asks a question, pause, listen to their question. Sometimes on any of the argument parts, appellee, appellant, the rebuttal, you might run out of time. Most of the time, the judges, it's up to them, but they typically, if they've bombarded you with a lot of questions, will at least let you finish your point. So it's helpful just to say, "Your honor, if I may just finish my thought," they'll usually let you finish your thought, even if you're technically over your time. Again, it's important to figure out how you're going to manage your time. Some courts will have a clock right at the front. The Ohio Supreme Court has different color lights for when you've reached a certain time in your argument that it's time to stop talking. So it's important to practice and get a sense of how long it takes you to present your main points. We are going to move on to discretionary appeals, to the highest court, Supreme Court, either at State Supreme Court and we're going to use Ohio as an example, or to the Supreme Court of the United States. Now with respect to the Ohio Supreme Court, it is the court of last resort in Ohio. Most of the cases in the Ohio Supreme Court are from the 12 District Courts of Appeals. The Supreme Court may grant leave to appeal in felony cases from the Courts of Appeals. And they might also grant leave to certify its record in any civil or misdemeanor case that the court finds to be quote, of public or great general interest. The Supreme Court of Ohio also has appellate jurisdiction involving questions arising under Ohio or United States constitutions. There's also a process to certify a conflict between one or more Courts of Appeals districts. And with that certified, that can be heard by the Ohio Supreme Court. The Supreme Court also hears all cases in which the death penalty has been imposed in Ohio after 1994. And I'm sorry, where the offense is committed on or after January 1st, 1995, you go directly from the trial court to the Supreme Court of Ohio, and you skip over the Courts of Appeals. Finally, the Supreme Court of Ohio has appellate jurisdiction to review actions of certain administrative agencies, including the Public Utilities Commission. So that's essentially in a nutshell what their jurisdiction is, but the bulk of the docket at the Ohio Supreme Court are from discretionary appeals from the Courts of Appeals. They get a lot of cases where litigants are seeking leave to appeal on the Ohio Supreme Court, but they only accept about less than 5% of these discretionary appeals. The process is when you file your notice of appeal, in Ohio, you have 45 days from the Court of Appeals decision to file it. And along with your notice of appeal, you need to prepare a memorandum in support of jurisdiction. That's similar to assert petition in the US Supreme Court. And in that, you are trying to convince the court why they should take your case. Typically why this is a constitutional issue, or it's an issue of public, a great general interest. So you really need to explain to the court, what's interesting about this. Why should they take this case and how does it affect people statewide? And that's really what they're looking for. So a big difference in preparing a memorandum in support of jurisdiction and formulating propositions of law as they're called for the Ohio Supreme Court, is that you are looking for big picture issues of law and not necessarily error that happened in the Courts of Appeals. Obviously you're arguing that the Court of Appeal's decision was wrong if you're appealing, but you need to formulate broad propositions of law that apply to your case that might apply to other cases across the state and have those be attractive to the panel, to the justices who are reviewing your memorandum and support of jurisdiction. One thing to know about the Ohio Supreme Court is that the clerk's office is very strict, meaning that they will not accept untimely appeals or untimely pleadings or motions of any kind that are not provided in the rules. So it's really important to make sure that you have followed all the rules and that you are filing things before the deadline, especially if you're filing them using the E-Filing Portal in case it gets rejected so that you have time to correct those issues the next day. So you're not filing at the very last minute. Obviously that's a good point anywhere, but especially in the Supreme Court. Now with respect to the Supreme Court of the United States, SCOTUS accepts less than 1.5% of petitions for certiorari. On average, Supreme Court of the United States has discretion to hear appeals from the US Courts of Appeal, circuit courts, and state courts of last resort, such as the Ohio Supreme Court if the decision involves issues of federal law. The SCOTUS rules 10 through 16, which I've included in your materials, relate to cert petitions and factors considered by SCOTUS when deciding whether to accept an appeal include the following, whether there's a split in the circuit. So whether there are different competing decisions among the different circuit courts, whether there's a conflict among state high courts and federal courts on important federal questions, whether their case involves a novel, but important federal question. I.e. one that SCOTUS has not previously addressed, whether the decision below conflicts with Supreme Court of the United States precedent and whether the decision departs significantly from the accepted unusual course of judicial proceedings. An important distinction overall between intermediate appellate courts and Supreme Courts, is that as I mentioned, the high court is not a court of error correction. So, when you focus on too much on why the decision below in the Court of Appeals was wrong, you're actually less likely to persuade the high court to accept your appeal. Also, if the decision below is very fact specific and doesn't present a clear clean legal issue to review, the high court is less likely to accept jurisdiction over that appeal. All right, finally, we are going to talk a little bit about extraordinary writs, and I like to lump these in with an appellate practice discussion because these writs are often filed in the Courts of Appeals or the Supreme Court, which acts essentially as the trial court. So it's a little bit different than your typical lawsuit and many appellate practitioners, including myself, also focused on these writs, just because they're often litigated in the Court of Appeals. So in Ohio Article IV Section 2 B-1 grants the Ohio Supreme Court with original jurisdiction over the following extraordinary writs, Quo-Warranto, mandamus, habeas corpus, prohibition, and procedendo. We'll go into a little bit more what those are in a moment. These writs may also be brought in the Courts of Appeals, and then they can be appealed as a matter of right to the Ohio Supreme Court. Sometimes they're brought in the trial courts, but most often it's in the Courts of Appeals or Ohio Supreme Court. So if you bring the writ action in the Courts of Appeals, then you get an automatic appeal to the Ohio Supreme Court, which is nice because you typically don't get that automatic appeal, or you could just bring it in the Ohio Supreme Court initially, and then have them have the final say on it. So going through some of these writs a little bit, some might be familiar like habeas, others maybe not as much. To be entitled to a writ of prohibition, what's called the relater, which is basically the plaintiff, the one bringing the suit ordinarily must prove that the lower tribunal is about to exercise judicial or quasi-judicial power without authority and that there's no adequate remedy in the ordinary course of law. For mandamus, you're not asking for the court to prohibit an order, you're asking that a mandate be issued and to be entitled to a writ of mandamus, a relater must establish by clear and convincing elements the following; by clear and convincing evidence, the following three elements, one, a clear legal right to the requested relief, two, a clear legal duty on the part of the respondent to provide it, and three, the lack of an adequate remedy in the ordinary course of law. Now there are some statutory exceptions in Ohio where statute provides that mandamus is a remedy. And in that case, you don't necessarily have to prove the lack of an adequate remedy in the ordinary course of law if there is a statute. And this comes up a lot in expedited election cases, which I'll talk a little bit more about in a moment. Quo-Warranto is a proceeding brought in the name of the state to oust a person from public or corporate office or franchise to which he or she is not entitled, or has abused or forfeited or to oust an association or corporation from a franchise to which it is not entitled, or it is abused or forfeited. Quo-Warranto doesn't come up quite as much as the other writs, somewhat rare, but it is something to remember. Habeas Corpus, this comes up both in state and federal context, an it's an extraordinary civil remedy to enforce the right of personal liberty and is available to free a person unlawfully detained for any reason. The privilege of the writ is expressly guaranteed in the Ohio and Federal Constitutions. Finally, procedendo is a writ issued by a higher to a lower court that commands the lower court to proceed in cases in which the lower court has refused to act because of doubtful jurisdiction, has erroneously determined that it lacks jurisdiction or otherwise improperly refuses to proceed to judgment. Now, what makes procedendo different from mandamus is that it's restricted to compelling a court to exercise jurisdiction, whereas mandamus normally is used to compel public officers generally, including courts to perform their duties. So wanted to talk a little bit in some of the time we have left about extraordinary writs in the Ohio Supreme Court, in terms of a case study. If you look at expedited election writs, these are really common right before the election in Ohio, sometimes there are challenges to candidates on a ballot and ballot initiatives. And again, this is one of those mandamus type actions, typically where it's provided for by statute, this process. There are also a number of recent Ohio Supreme Court cases involving redistricting that made the news a lot of places. the kind of background for that is that in 2015, Ohio voters overwhelmingly improved an amend the Ohio constitution that had repealed Article XI and replaced it with a new version. And this established a new process for creating general assembly districts to help combat gerrymandering. And so there was a process built into that under which the court could be petitioned, specifically the Ohio Supreme Court, as to whether those redistricting maps were fair, at specifically, Section 9 A of the Ohio Constitution provides that the court has, quote, "Exclusive original jurisdiction "in all cases arising under Article XI." So in a series of cases under the caption League of Women Voters of Ohio versus Ohio Redistricting Commission, various iterations of the redistricting map were held to be unconstitutional by the Ohio Supreme Court. It's interesting to check those cases out. Eventually the federal court actually intervened and there is a map at this point, but the baseline process to this occurred in the Ohio Supreme Court. There are also, I included in your materials, a case that I worked on, where we represented the Summit County Republican Party that had filed a mandamus action pursuant to statute, challenging the decision of the Ohio Secretary of State about one of the Board of Election Members in Summit County. And that's kind of an interesting case to read how that ended up. And again, that's something that's provided by statute, this mandamus remedy as a remedy in the Ohio Supreme Court. So you can check that out in your materials, if that's something that interests you. Finally, I will talk a little bit about the original jurisdiction of the Supreme Court of the United States in 28, United States Codes, Section 1251. It provides that the Supreme Court shall have original and exclusive jurisdiction over all controversies between two or more states. And again, these are cases that can be brought as a first instance in the Supreme Court of the United States, sort of like the writs that we're talking about in the Ohio Supreme Court. 28 U.S.C. 1251 also provides the Supreme Court shall have original, but not exclusive jurisdiction over the following; all actions and proceedings to which ambassadors or other public ministers, counsels, or vice counsels or foreign states are parties. Two, all controversies between the United States and a state and three, all actions or proceedings by a state against the citizens of another state or against aliens. So that concludes our presentation for today. Thank you for listening. If you have any questions about appellate matters, I'm happy to answer those offline. You can find out a little bit more about me on my bio, and there's a link to email me on the site. Thanks everyone for joining us today.

Presenter(s)

EAJ
Emily Anglewicz, JD
Shareholder
Roetzel & Andress

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