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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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questions about procedure
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?)
Civil Procedure

Satisfaction of the Judgment

Motions Attacking the Judgment


Criminal Procedure

Sentencing or release

Satisfaction of sentence (fine to incarceration)


appealing a trial court decision
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?
why are cases appealed or not appealed
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)
appellate court processes name changes
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.

appellate court processes preliminary maneuvering
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.

appellate court processes post filing to decision
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).
appellate court processes reaction to the decision
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.
napster in court 2000 2001
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

napster in court 2000 200112
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

napster in court 2000 200113
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.
napster in court 2000 200114
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.

napster in court 2000 2001 the continuing saga
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.
napster in court 2000 2001 the continuing saga16
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.
on to the us supreme court

On to the US Supreme Court

But not for Napster

ussc decision processes i
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)

ussc decision processes ii
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)

disposing appeals us supreme court
Disposing Appeals: US Supreme Court


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

written opinions us supreme court 1990 term
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

written opinions us supreme court 1999 term
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

written opinions us supreme court 2005 term
Written OpinionsUS Supreme Court, 2005 Term

Court Concur Dissent TOTAL

Roberts (CJ) 8 1 4 13


Scalia 9 7 6 22







internal processes of state supreme courts
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


Reporting Justice, then Open

Reporting Justice, then Reverse Seniority

Reporting Justice, then Seniority

Most Junior Justice, then Open

internal processes of state supreme courts26
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