I. General Rule: As an officer of the Court, conduct yourself in a way that facilitates, and does not defeat, our purpose of being just and doing it efficiently.
a. We are here to provide justice. That is what we want to do. It is the life we have chosen. If we fail, we fail at something that we have made one of the most important projects of our lives.
II. Civil Rule 7(B): State the grounds of your motion "with particularity".
b. Statistics showing the need for efficiency:
i. Civil Cases filed:
c. Conclusion: The Court and its staff must be very efficient.
1. 1994: 9187 (16 Judges with one staff attorney each)
2. 2009: 19348 (17 Judges with one staff attorney each)
3. Conclusion: the number of civil cases filed per judge per year has doubled between 1994 and 2009.
i. Consequence for us: we must require those who appear before us to act in a manner that facilitates that efficiency.
ii. Consequences for you:
1. When filing a motion, you must satisfy Civil Rule 7(B).
2. You should attempt to resolve procedural disputes before presenting them to the Court.
3. You should structure your motions, memoranda, and briefs to facilitate the Court’s review.
4. Consider how you can facilitate the review of your motions, memorandums, and briefs if they are going to be reviewed on Adobe Acrobat Reader.
5. All motions, entries, etc, which you file or submit to the Court for the Judge’s signature should have a proper title so that they will be listed on the docket correctly.
a. Failure to satisfy Civil Rule 7(B) is grounds for denying your motion.
III. Know and apply the standard that is applicable to your motion.
b. To satisfy Civil Rule 7(B):
i. You must thoroughly explain both the legal basis and the factual basis of your motion.
ii. Statements about the law must be supported by citations to legal authority.
iii. Allegations of fact must be supported by citations to appropriate evidence in the record.
iv. It is not adequate to have a long statement of facts with citations to the record and then provide no citations for allegations of fact made in the actual argument section of your brief and memoranda.
v. It is not adequate to just have a citation to some legal authority or evidence without telling the Court what language in the evidence or legal authority you are relying on. You include citations so that the Court can verify the truth of what you say the evidence of legal authority says. It is not the purpose of a citation to make the court go read the evidence or legal authority to try to discern what language you are relying upon so that the Court must then construct for you an argument that supports the motion.
i. Agreed motions. If the parties are in agreement, the motion need not be elaborate.
ii. Unopposed motions: Lack of opposition is generally regarded as a strong indication that the motion has merit.
1. However, we are required to examine unopposed summary judgment motions to insure that there are no genuine issues of material fact.
a. The Court intends to follow the law.
IV. The structure of motions and memoranda should be suited to what the Court's needs for efficient review and determination of the motion.
i. Consequently, to get what you are asking for in the motion, you must show that the conditions exist under which the Court is either permitted or required to do what you are asking the Court to do.
b. Dispositive motions
ii. You should do the following.
1. Identify and state the procedural standard that applies to your motion with citation to appropriate legal authority.
2. Identify and state the substantive standard that applies under the facts of your case.
3. Present the evidence (with citation to the record) that shows that those legal standards are satisfied.
i. They are not often granted.
c. Discovery motions
ii. To prevail on such motions you must satisfy the high legal standards which the law requires.
1. If you don’t know the standards, or you do not focus on proving that standard is met, then you have little chance of prevailing.
iii. If you do not make the Court confident that you have in fact satisfied the standard, your dispositive motion will be denied.
i. Discovery motions must usually be supported by a statement of what you did to try to resolve the discovery dispute before you filed the motion.
1. Don’t treat this as a mere formality.
ii. Failure to include such a statement will result in denial of the motion.
2. Sending letters is not adequate. We expect counsel to actually talk to each other to try to work out the dispute.
a. Consider that your purpose is to persuade me
V. Titles of documents that you file or submit to the judge for his signature should facilitate the Clerk's classification of the document.
i. Therefore you need to put yourself in my shoes
b. Statement of facts
ii. Ask yourself: What structure does your memorandum need to have in order to be persuasive to a staff attorney with a limited amount of time to review it?
i. Should be brief:
c. The Argument
1. its just background to help initially frame the issue
2. I probably won’t read it more than once, whereas your arguments may receive several readings in the course of evaluating them and drafting a decision.
3. Don’t assume I have a perfect memory and will remember the allegations of fact made in the Statement of Facts when I am considering you argument
a. I don’t have a perfect memory and I may not remember what you want me to
4. Don’t assume that, in the middle of trying to evaluate your argument, I am going to go back and read your statement of facts over and over.
a. It is your job to talk about the facts that matter to your argument in the argument itself and to talk about them at that point in the argument where the those facts becomes relevant.
i. Headings matter:
d. Legal authority
1. I am going to analyze the arguments one issue at a time.
a. I will consider the moving party’s discussion of the issue, and then read the non-moving party’s discussion of the issue, and then read the discussion of the issue in the reply.
2. Accordingly, your argument should be broken down into sections with section headings that identify the issue discussed in each section.
3. The non-moving party’s memorandum should have corresponding sections so that I can easily identify the related sections of each memorandum. (You may add sections or subsections if needed).
4. The reply should generally adopt the same structure, and also responding to any new sections or subsections in the memorandum contra.
i. I don’t generally find O Jur very persuasive: the case cites in O Jur are generally not that recent
ii. Citation form should be functional rather than technically perfect
1. Both the Court and opposing counsel should have no difficulty finding the authority, or the page number within the authority.
a. (No LEXIS or Westlaw cites please since others may not be using the same system)
2. I like an indication of the County that an Ohio Appellate case is coming from.
a. (If you don’t say anything, I will suspect that its not from Franklin County).
i. Your citations to the record should make it very easy to find the specific part of the evidence that supports the allegation of fact made in your brief.
f. The limited function of a Reply
ii. I work from online versions of your memoranda and motions and other filed documents using an on-line pdf document viewer.
1. The viewer does not scroll through documents well but it does allow one to move to a specific page if I have a page number. The viewer numbers pages automatically so if your motion, memorandum and certificate of service take up 16 pages, the first page of attachments will be numbered 17 by the viewer.
2. Consequently, it would make sense to number the pages of your attachments in this manner and cite to that page number.
i. A reply is for rebuttal, not for asserting new grounds for the motion
ii. Don’t bother to argue new grounds for your motion in the Reply unless you simultaneously arrange for the non-moving party to file a Surreply.
1. If you assert new grounds, and the other party has no opportunity to respond, then we will not consider the new grounds.
a. (The default under the local rules is that briefing is concluded with the Reply)
a. Use the format in the Local Rule
VI. If you have many pages of attachments, then, as your first attachment, please include an index of attachments suited to efficient use of the on-line document viewer. (see the discussion of the document viewer above at section IV.e.ii.).
b. This includes entries that you submit to the Court.
i. Using the proper title enables the clerk to identify the motion being decided so that it is removed from the pending motions list.
c. No “Motions Contra” or “Response” or “Reply” to Motions. It should be “Memorandum Contra”
1. A significant amount of my time is used up just trying to determine which motions are still pending.
d. The document responding to a memorandum contra is called a “Reply” (Not a “response”)
VII. Judge Hogan and I are flexible about the number of pages. (Other judges and staff attorneys may feel differently). I only ask that you don't abuse our trust.
VIII. Courtesy copies: I'd rather save some trees, especially now that the documents are on-line for staff attorneys.
i. (this is rare) you may submit a courtesy copy if you have reason to believe there will be an urgent need to review your document before the clerk posts an image of the document on the on-line docket.
ii. You may submit a courtesy copy of your motion when you submit an Entry to the Court (when submitting an entry is appropriate).