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The Appeals Paperwork Begins
Thursday, November 27 2008 @ 04:08 PM EST

The clerk that handles sending on notices of appeals for the US District Court for the District of Utah has sent SCO a letter, letting it know that the notice of appeal has been filed with the US Court of Appeals for the 10th Circuit and providing SCO with instructions, including to download the rules and forms from here. Just read the letter, and you'll immediately understand what appeals are like.

This is just the beginning, of course. SCO has to do a lot more than file a notice of its appeal. Next the SCO lawyers have to tell the Court of Appeals exactly what they think was decided wrongly at the lower court level.

I would guess that was mostly written some time back, beginning in August of 2007, with refinements added after July of 2008. Really, lawyers plan the appeal from day one, as far as strategy goes.

So much paper. So many picayune instructions. So much is at stake, and all of it depending on your lawyer getting every detail just right. To me, reading the instructions is a lot like reading IRS tax booklets, but without the refreshing illustrative examples. It's a legal specialty, actually, doing appeals, because not everyone can stand it.

It's like bankruptcy court in that sense, but worse, very paper-intensive, lots of details to get right, with a nod to the digital age these days. Here's the Practitioner's Guide to the United States Court of Appeals for the Tenth Circuit [PDF], Sixth Revision (December 2006). 186 pages. You'll see the clerk sending the notice of appeal with the preliminary record mentioned on page 34. That is where we are in this case. You'll find the list of filings required on page 26 and you'll find the answer to your how-long-will-it-take question on page 31 of the PDF. On that same page, you'll find the success statistics:

B. Chances of Success. The reversal rate in this circuit for the 12-month period ending June 30, 2006 was 10.2% overall, broken down as follows:
Criminal - 6.3%
U.S. Prisoner Petitions - 6.1%
U.S. Civil - 20.2%
Private Prisoner Petitions - 13.5%
Other Private Civil - 11.9%
Bankruptcy - 18.8%
Administrative Appeals - 2.1%
One can't help but notice that SCO's chances are therefore poor. I understand that statistics don't speak necessarily to a particular case. However, one thing is for sure. When SCO and its minions claim that Judge Kimball is often overruled, it appears that can't be true. Even if he represented every single part of this list, it's still quite a low percentage of cases that are ever successfully appealed. Ergo.... duh. SCOfolk are wrong again, I therefore conclude. They have smeared another very fine individual without a truthful basis.

This filing includes attachments, Judge Dale Kimball's 102-page Memorandum and Order dated August 10, 2007, the Final Judgment dated November 20, 2008, the Notice of Appeal, and the entire SCO v. Novell docket.

That is interesting, in that they didn't attach the July order. Perhaps they feel it's duplicative, or it could be they'd rather not bring up the money question, since they did pretty well on that prong, but it also indicates that SCO's appeal will be focused more on issues in the August order. That's the one that ruled that Novell didn't pass the UNIX copyrights to SCO in 1995. Or it means this is just what the clerk filed, and SCO will mention it when it files its brief.

Certainly if Novell cross appeals, I expect the July order to be in the mix, because that's the one that details how much SCO owes Novell and who had the burden of proof at trial, and it's also the one that thought UnixWare is just the latest edition of UNIX. I also don't see the September 2007 decision granting Novell's motion regarding a trial by judge and not jury, but then again, the night is young, as they say. Lots still to happen. I very much look forward to reading what SCO comes up with.

Here's the docket entry:

568 - Filed & Entered: 11/26/2008
Transmission of Preliminary Record to USCA
Docket Text: Transmission of Preliminary Record to USCA re [567] Notice of Appeal. (Attachments: # (1) Memorandum Decision and Order, # (2) Final Judgment, # (3) Notice of Appeal, # (4) Docket)(jmr)
If you go to this About Us page, the US Tenth Circuit Court of Appeals explains what it does and what an appeals court is for in the US judicial system:
The federal courts of appeals are the intermediate appellate courts between the district (trial) courts and the Supreme Court of the United States.

There are 13 courts of appeals: eleven numbered circuits (First through Eleventh), the District of Columbia Circuit, and the Federal Circuit. The numbered circuits, including the Tenth Circuit, provide appellate review of all cases tried in the district courts within the geographic area of their jurisdiction; they also decide appeals brought to them by residents of the circuit from various administrative tribunals, including the Tax Court and agencies of the federal government.

The territorial jurisdiction of the Tenth Circuit includes the six states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho.

That same page has information on where the courthouse is located, in Denver, Colorado, with a link to a map. Speaking of maps, here's one that shows all the circuits, so those of you who are not from the US can see at a glance what we're talking about. Just look for the number 10 on the map. There is an Historical Society of the Tenth Judicial Circuit, if you are curious. The court has jurisdiction over a huge land area, probably because of lower levels of population in that area:
The Tenth Judicial Circuit is vast, comprising 560,625 square miles, or almost 20 percent of the land mass of the United States. It extends from the Great Salt Lake to the Missouri River and from Yellowstone to Mexico. Most of this land was acquired from France in the Louisiana Purchase in 1803 for the price of 3ยข an acre.

When Congress created the present appellate system in 1891, it established nine circuits, the largest of which, the Eighth, consisted of 13 states. In 1929 Congress created the Tenth Circuit by splitting off six states: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, leaving the remaining seven states in the Eighth Circuit. Thus, the year of 2004 was the diamond anniversary of the circuit.

It tells us that the court now has ten active and ten senior judges, and the circuit boasts 40,000 practicing lawyers. Well, one appellate judge just resigned. And four judges on this court are from Utah. Byron White, who served on the Supreme Court, came from this circuit, specifically from Colorado. There's an article about him, Byron White: The Practicing Lawyer [PDF] that you might enjoy. The circuit also includes Wyoming, and that makes it the same area where Gerry Spence practiced for nearly half a century. He won the Karen Silkwood case, if you recall.

We're talking the US West, what used to be called the Wild West, big sky country, where people pride themselves on their independence. It's awe-inspiringly beautiful out West, with some exceptions, if you like rugged and wide open spaces. I'll never forget the first time I saw the Rocky Mountains from an airplane. Or the stars at night. Or the first time I saw a majestic eagle flying across the blue and uninterrupted sky.


  


The Appeals Paperwork Begins | 167 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SilverWave on Thursday, November 27 2008 @ 04:41 PM EST
If any :)

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

[OT] Off Topic here, please...
Authored by: SilverWave on Thursday, November 27 2008 @ 04:42 PM EST
clickies please...

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

News Picks Threads Here
Authored by: SilverWave on Thursday, November 27 2008 @ 04:44 PM EST
Subject in the title please.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Corrections Thread
Authored by: Anonymous on Thursday, November 27 2008 @ 04:46 PM EST
if required...

[ Reply to This | # ]

Four Judges on this court are from Utah....
Authored by: Anonymous on Thursday, November 27 2008 @ 06:41 PM EST

Oh oh, now us poor anti-SCOG folk are in trouble. The real Judges will get a chance to examine the proof and weigh in favor of SCOG.

Ok.... so I'm being a bit facetious. The pro-SCOG proponents of the last couple articles have been amusing me. I find it interesting they expect SCOG to win against the evidence provided to the court.

I'm just curious how they'll try to spin it if all four Judges from Utah end up on the appeals board and agree with Kimball.

RAS

[ Reply to This | # ]

The Appeals Paperwork Begins
Authored by: Anonymous on Thursday, November 27 2008 @ 07:12 PM EST
When (should I say if?) SCO fail their appeal what happens then? Have they spent
all the assets of the company yet? Will the folks who pay Utah state taxes end
up footing the bill for this whole charade? Or will the Federal Gov't end up
picking up the tab. I'm assuming IBM will have a claim for their, substantial,
costs - so who'll pay IBM back (or have IBM's shareholders already lost out to
SCO)?

[ Reply to This | # ]

The other cases ...
Authored by: kh on Thursday, November 27 2008 @ 07:39 PM EST
The other cases are still stayed by the bankruptcy court, including the
arbitration and SCO can appeal while the other cases are stayed? I mean it's a
great strategy by SCO but how is it legal?

If Novell brings out counter arguments and SCO loses its appeal but Novell's is
allowed to go on can SCO get the bankruptcy court to stay Novell's appeal?

And of course does SCO need any money to appeal? Will the BK court have to
approve the appeal?

If Novell brings Kimball's ruling on the constructive trust into its appeal will
the appeals court have jurisdiction over the constructive trust?

[ Reply to This | # ]

Actually I thought it was more like...
Authored by: The Mad Hatter r on Thursday, November 27 2008 @ 07:55 PM EST

So much paper. So many picayune instructions. So much is at stake, and all of it depending on your lawyer getting every detail just right. To me, reading the instructions is a lot like reading IRS tax booklets, but without the refreshing illustrative examples. It's a legal specialty, actually, doing appeals, because not everyone can stand it.
Baking a cake. You have to follow the directions in order, adding the right ingredients at the right times, in the right amounts. FYI - we're having a birthday party for one of my sons tomorrow night, and I have this huge craving for birthday cake right now!

---
Wayne

http://sourceforge.net/projects/twgs-toolkit/

[ Reply to This | # ]

What Is SCO Appealing?
Authored by: sk43 on Thursday, November 27 2008 @ 08:26 PM EST
""That is interesting, in that they didn't attach the July order. Perhaps they feel it's duplicative ...""

This is all new territory. My reading of the practioner's guide provided by the 10th circut is that the reason that the July order is not included is because SCO did not list it in its Notice of Appeal:

"The notice of appeal must name all of the parties seeking to appeal. It must also designate the judgment or order on appeal, and must name the court where the appeal is taken."

The only order that SCO listed in the Notice of Appeal is that of August 10, 2007. This is probably good strategy for SCO - keep the appeal focused. According to the practitioner's guide, only 20% of civil lawsuit appeals are granted.

By the way, many thanks to SCO for leading us through all the nooks and crannies of the US legal system. Even though we would prefer not to have been let there, it has all been very educational.

[ Reply to This | # ]

Chance of success
Authored by: Anonymous on Friday, November 28 2008 @ 01:41 AM EST
When SCO and its minions claim that Judge Kimball is often overruled, it appears that can't be true.
It may well be false, and I seem to remember that someone checked and it was, indeed, false, but this can't be concluded just from the circuit-wide statistics, which include other judges. Imagine, for example, that there are ten judges in the circuit (I'm sure there are more). Judge Kimball could be overturned 100% of the time, and if other judges are never overturned, the overall rate would be 10%.

[ Reply to This | # ]

SCO Stumbling Block Ahead
Authored by: DaveJakeman on Friday, November 28 2008 @ 08:32 AM EST
Next the SCO lawyers have to tell the Court of Appeals exactly what they think was decided wrongly at the lower court level.
Does that mean SCO will have to be specific about what they feel is wrong?

Should be fun. I hope the Court of Appeals has lots of nails for this piece of jelly.

---
Monopolistic Ignominious Corporation Requiring Office $tandard Only For Themselves

[ Reply to This | # ]

  • Nah! - Authored by: Anonymous on Friday, November 28 2008 @ 11:03 AM EST
  • Finally I understand! - Authored by: tiger99 on Friday, November 28 2008 @ 11:14 AM EST
The Appeals Paperwork Begins
Authored by: JamesK on Friday, November 28 2008 @ 02:20 PM EST
Has anyone got a wood stake handy? It certainly appears we're going to need
one. ;-)

---
There are 10 kinds of people in the world, those who understand binary and those
who don't.

[ Reply to This | # ]

Waiting for Appeal
Authored by: webster on Friday, November 28 2008 @ 05:18 PM EST

Why wait when one can speculate? Well some things are known. SCO bargained away some claims to get a final, appealable judgment; SCO filed their notice early.

  1. Neither party filed post trial motions, for a new trial, for a judgment n.o.v. or a SCO reconsideration special for example. They did not try Kimball again and seem happy to be on to a new forum.

  2. The deadline is December 22. One wonders if Novell is pulling its punches. It will indeed seem so if they do not file a notice of appeal themselves. It is all so strange since the Monopoly props them both up and they both attack Linux.

  3. The notice of appeal just establishes the appeal. The first briefs for each party will determine the issues. They are not limited to items that may be referenced in the notice.

  4. Every order on motions, objections and trials can be appealed.

  5. Seminal issues like jurisdiction and forum are fair game. Kimball's refusals to dismiss when it was just a slander of title case can also be reviewed with the value of hindsight. SCO will scream about the denial of its sacrosanct jury trial.

  6. There is going to be nothing new in the appeal except possibly a result. They can appeal everything or select issues. Since they briefed almost everything for Kimball, all they have to do is refresh their research and put it in the required shape.

  7. Speaking of shape, the rules on briefing and the index are daunting. If one doesn't do them regularly, it is enough to make one hire specialists that do. It is all designed to make it easy for the judges to read the briefs, transcript, and exhibits. Appellants have to lay it all out for them with tabs. There will be no fumbling around for the judges.

  8. Forget about the rules. This case begs for a scheduling order. The time and length limits may not fit the issues and record of this case of a half-decade.

  9. They are not guaranteed an oral argument. If there are multiple issues, which one will they choose to argue? What will the judges want to hear? It will be interesting to see who is on the panel of judges (3), whether they have been on a panel with Kimball, whether they agreed, and who wrote the decisions.

  10. The rules also provide for some mediation steps so it is going to take a while for the parties to convince the court that the court will have to do the work and decide by itself.

  11. Basically the Appellant is going to have to convince the Circuit that Kimball didn't follow the right law on the facts on record. This will not be easy though SCO does it in the press every month. There is a long and winding road ahead to an unknown destination. SCO will fulfill its roll as our devil-may-care guide.


---------webster

Tyrants live their delusions. Beware. Deal with the PIPE Fairy and you will sell your soul.


[ Reply to This | # ]

Chances of success...
Authored by: kh on Monday, December 01 2008 @ 12:20 PM EST
Just out of interest, since it's not clear to me. Do those statistics mean that
in 20.2% of all civil cases an appeal was successful or that in 20.2% of civil
cases that were appealed, the appeal was successful.

They are quite different statistics.

[ Reply to This | # ]
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