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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 3 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.


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