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Rules changes

Maybe one of the reasons the Supreme Court didn't hand down any decisions last week was because they were working on proposed changes in the rules.  Maybe not.  Anyway, here's the quick and dirty on the proposed changes:

Rules of Superintendence:  Would require that a magistrate have four years of experience before being appointed, and would require any court having two or more judges to appoint one.  If this goes through, will there be a subsequent increase in the amount of experience required to be a judge, which as of now is only six years?

Rules of Appellate Procedure:  If you want to have oral argument, you would have to request it, by filing a motion within fourteen days after the appellee's brief is filed.  One thing certain to be changed in the proposed rule is its provision for 30 minutes per side in oral argument.  I have no idea where they came up with this; they only give you 15 per side in the Ohio Supreme Court.

The other big change here is to allow en banc proceedings, i.e., decisions made by all the judges in the district.  This is a follow-up from the Court's decision last year in In Re J.J., a custody case in Cleveland in which there were two appeals, resulting in two diametrically opposite decisions from two differerent panels of the 8th District on the same day.  The Court in J.J. made the self-evident observation that such conflicting rulings "create confusion for lawyers and litigants and do not promote public confidence in the judiciary," and held that "appellate courts are duty-bound to resolve conflicts within the district through en banc proceedings."

Actually, the 8th District did have a method of allowing en banc proceedings, and used it twice in the last 30 years.  It's a foregone conclusion that the proposed rule on this will be adopted, and it will then be up to each district to develop local rules on it.

Civil Rules.  The biggie here is on electronic discovery.  The rules change in 2004 required a party submitting discovery to also include it in electronic form (disc, email attachment, CD, etc.), but didn't specify what happened if the party didn't comply.  Now it does; if you don't get an electronic copy, you don't have to answer it.  There are also numerous rules changes with regard to the discovery of electronically-stored information, including provisions for sanctions if such information has been destroyed.  Interesting scenario:  you're representing someone in a fender-bender, and the other side asks for any emails your client may have sent to anyone regarding the accident...  That's a little far-fetched, but if you're representing a company, you'l definitely want to check out the changes here, and advise your client of a formal method of safekeeping any kind of electronic data.

Criminal Rules.  What's interesting here is not what's proposed, but what isn't.  There are rules proposals for video teleconferencing (basically, for use by courts in the arraignment process) and for alternate jurors (instead of discharging them, keeping them sequestered until a verdict, so that they can step in if something happens to a juror during deliberations), but nothing on discovery.  The Court last year rejected a rules change that would have allowed "open" discovery in criminal cases, and there was some thought that it may reconsider its position after its decision a few weeks back in State v. Brown, in which it reversed a death penalty case because the prosecution failed to turn over exculpatory material.

Actually, a number of counties already utilize open discovery.  I practice in Cuyahoga County, and if I have a criminal case in Lake or Summit or Lorain, at the first pretrial the prosecutor will give me his file, witness statements and all.  (In Lake, he'll give me a copy of everything; the others will allow me to copy what I want.)  In Cuyahoga County, I get to sit there and listen to the prosecutor read me the police report, or whatever portions he deems relevant.  This is stupid, and it should change.  Why it doesn't is a mystery.

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