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Appellate Procedure

Appellate Procedure. PSCI 2481. Questions about Procedure. Is there some way we could encourage settlement before the filing of a lawsuit? Why didn’t this case settle before trial given the many opportunities to settle?

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Appellate Procedure

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  1. Appellate Procedure PSCI 2481

  2. Questions about Procedure • Is there some way we could encourage settlement before the filing of a lawsuit? • Why didn’t this case settle before trial given the many opportunities to settle? • Did the probability of settlement increase with increasing information? (Did discovery make a difference? How much?) • Should this matter go to trial given the crowded dockets or should we come up with some alternative to trial? • Should jury trials be permitted in civil matters or should we only have juries in criminal cases? (What’s special about a jury?)

  3. What Happens After Trial?

  4. Civil Procedure Satisfaction of the Judgment Motions Attacking the Judgment Appeal Criminal Procedure Sentencing or release Satisfaction of sentence (fine to incarceration) Appeal

  5. Appealing a Trial Court Decision 4 Questions • Is there a legal basis for an appeal? • What are the possibilities for success? • How much will an appeal cost? • Is it in my (my client’s) best interest?

  6. Why are cases appealed (or not appealed)? • Degree of Dissatisfaction • Those most dissatisfied are most likely to appeal. • Chance of Successful Appeal (which are not good) • In courts with mandatory jurisdiction, 2/3’s of all appeals are affirmed • In courts with discretionary jurisdiction, less than 1 in 10 requests are granted a hearing. • Financial Cost • Trial record transcription, attorney’s fees, court costs (plus the cost of a new trial if you win on appeal)

  7. Appellate Court ProcessesName Changes Trial Court Convention: (Claimer/Complainer vs. Offender) Civil: Plaintiff vs. Defendant Criminal: Government vs. Defendant Appeals Court Convention: (Trial court loser vs. Trial court winner) Appellant vs. Appellee Petitioner vs. Respondent The civil versus criminal distinction at trial is not particularly relevant at the appeals level.

  8. Appellate Court Processes(Preliminary Maneuvering) Mandatory Jurisdiction: • Filing of an appeal and brief by the appellant • Submission of a brief by the appellee • (Submission of a reply by the appellant) Discretionary Jurisdiction: • Filing of a petition for a hearing by the petitioner • Submission of a brief in opposition to the hearing by the respondent • Court decision on whether to grant the hearing (If a hearing is granted) Submission of additional briefs by both sides Whether mandatory or discretionary, this process of filing for appeal or petitioning for a hearing is the appeals for equivalent of the filing of the pleadings in trial court.

  9. Appellate Court Processes(Post-filing to Decision) • Pre-hearing conference. • Court ruling on motions by either party. • The Hearing: Oral argument by the attorneys before the appeals court. • Court conference and preliminary decision. • Writing of opinion(s) to accompany decision. • Circulation of the opinion(s) among court members. • Possible re-consideration and redrafting of opinion(s). • Announcement of the final decision and opinion(s).

  10. Appellate Court Processes Reaction to the Decision • Acceptance of the decision by both sides. • Further action in lower court in response to the appellate court decision. (Case is “remanded” to the lower court for action not inconsistent with the higher court’s ruling.”) • A new appeal.

  11. Napster in Court, 2000-2001 The Trial Napster v RIAA (Record Industry Association of America) • The Judge: US District Judge Marilyn Hall Patel • The Plaintiff’s Claim: Napster is engaged in c\opyright Infringement under the 1992 Audio Home Recording Act • Filed December 1999 • The Decision: Judgment for RIAA Preliminary Injunction issued July 26, 2000 Stayed Pending Appeal

  12. Napster in Court, 2000-2001 The Appeal • 3 Judge Panel for the US Court of Appeals, 9th Circuit: Senior Judge Robert Beezer (Reagan 1984) Judge Richard Paez (Clinton 1996) Judge Mary Schroeder (Carter 1979) • The Attorneys David Boies for Napster (“Hired Gun”/DC Law Firm/Govt Atty for Microsoft/ Atty for Al Gore in Florida and US Supreme Courts) Russell Frackman for RIAA • Amicus Briefs For Napster: AOL, Yahoo, CISCO, Sony, Apple, Association of Physicians and Surgeons For RIAA: US Dept. of Justice, US Copyright Office, Movie Industry, MLB, NBA

  13. Napster in Court, 2000-2001 The Court of Appeals Hearing (October 2nd, 2000) 20 minutes per side for oral argument The Decision (Announced February 12, 2001) Napster loses 58 page opinion (available on-line) Case sent back to the trial judge to modify her injunction and clarify her conclusion about Napster’s copyright infringement: Contributory copyright infringement (Did it know and fail to act?) Vicarious copyright infringement (Did it fail to use its ability to prevent access?) • Napster and RIAA are ordered to negotiate by Patel while the injunction is modified. • Napster continues to operate, promises to modify its software to prevent sharing copyrighted materials but may shut down any day.

  14. Napster in Court, 2000-2001 Would the 2 sides settle? Normally you would think there is a good possibility. Napster has some leverage/identity. Napster started with a million registered users. Five million were registered by the July trial. It had an estimated 32 million users by its CoA date, and 57 million by February 2001! But the problem is the record companies have no incentive to let Napster run the subscription service when they can do it themselves.

  15. Napster in Court, 2000-2001The Continuing Saga March 6, 2001 • District Court Judge Patel re-issues injunction. Napster required to prevent users from trading unauthorized files within 3 days of receiving notice from copyright holders. June 25, 2001 • US Court of Appeals for the 9th Circuit upholds its February decision by declining to revisit that decision en banc. • RIAA continues to pursue a federal court trial to seek damages against Napster. • Academy of Motion Picture Arts & Sciences files copyright infringement suit against Napster. • Webnoize announces 320,000 simultaneous users – down 80% since February.

  16. Napster in Court, 2000-2001The Continuing Saga July 2, 2001 • Napster goes offline to prepare fee-based service plan. July 16, 2001 • Napster ordered to remain off-line until it can show Judge that its new filters work. Given until August 9th to file emergency appeal of this order with Court of Appeals. July 18, 2001 • USA Court of Appeals for the 9th Circuit overturns Patel’s order that Napster stay offline. September 24, 2001 • Napster settles lawsuit with music publishers. Pays $26M for past use and establishes $10M down payment fund for future use. (This does not resolve their lawsuit with the RIAA for performance rights.) January 10, 2002 • Napster comes back online with beta test version of new software and volunteer users. February 6, 2002 • Patel described Napster as “out-of-control monster” that should be shut down if controls don’t work but record industries must identify infringed work before Napster will be ordered to remove it.

  17. On to the US Supreme Court But not for Napster

  18. USSC Decision Processes I Request for Review (Writs of certiorari, appeal or certification, or case submitted under original jurisdiction) Clerk Evaluation/Cert Pool Established (1972) Discuss List/Dead List “Rule of Four” Briefs Filed 30 Days 40 Copies Bench Memos Written (by Clerks)

  19. USSC Decision Processes II Oral Argument (M-W) 1848 8 hours / case 1871 4 hours/case 1911 3 hours/case 1925 2 hours / case 1970 1 hour/case Conferences (W & F) Opinion Assignment and Opinion Writing Decision Announcement (M)

  20. Disposing Appeals: US Supreme Court 1970198019902000 Disposing Cases: Original Docket 7 7 3 2 Appellate Docket Granted Review 214 167 114 85 Denied/Dismissed/Withdrew 1,285 1,999 1,802 1,842 Summarily Decided 114 90 81 63 Miscellaneous Docket Granted Review 41 17 27 14 Denied/Dismissed/Withdrew 1,683 1,968 3,369 5,658 Summarily Decided 78 32 28 61 TOTAL CASES 3,422 4,280 5,424 7,769

  21. Written OpinionsUS Supreme Court, 1990 Term Court Concur Dissent TOTAL Rehnquist (CJ) 14 1 4 19 White 13 6 10 29 Marshall 12 2 17 31 Blackmun 11 2 10 23 Stevens 14 5 25 44 O’Connor 16 4 5 25 Scalia 11 18 14 43 Kennedy 13 7 8 28 Souter 8 2 2 12 112 47 95 254

  22. Written OpinionsUS Supreme Court, 1999 Term Court Concur Dissent TOTAL Rehnquist (CJ) 9 0 5 14 Stevens 7 7 18 32 O’Connor 8 6 1 15 Scalia 8 8 9 25 Kennedy 10 5 4 19 Souter 8 5 10 23 Thomas 8 8 521 Ginsburg 8 4 6 18 Breyer 7 7 9 23 73 50 67 190

  23. Written OpinionsUS Supreme Court, 2005 Term Court Concur Dissent TOTAL Roberts (CJ) 8 1 4 13 Stevens Scalia 9 7 6 22 Kennedy Souter Thomas Ginsburg Breyer Alito

  24. Internal Processes of State Supreme Courts Court Size: 5 Justices 18 7 Justices 26 (Colorado) 9 Justices 6 Conference Discussion & Voting: None Formalized Reverse Seniority (Colorado) Seniority but Chief Last Seniority Reporting Justice, then Open Reporting Justice, then Reverse Seniority Reporting Justice, then Seniority Most Junior Justice, then Open

  25. Internal Processes of State Supreme Courts Opinion Assignment: Chief Justice 10 Chief Justice if in Majority 4 (Colorado, USSC) Random Draw 12 Rotation by Clerk’s Office 14 Rotation by Chief Justice 10

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