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It's a Rematch in SCO's Appeal: Jacobs for Novell, Singer for SCO
Monday, December 13 2010 @ 02:05 AM EST

Morrison & Foerster's Michael A. Jacobs will once again be representing Novell at oral argument in SCO's second appeal:
02-Dec-2010 9820392 - Oral Argument Acknowledgment Form filed by Novell, Inc.. Served on 02-Dec-2010. Manner of Service: ECF/NDA.
So it's a rematch, Boies Schiller's Stuart Singer for SCO [PDF] and Jacobs for Novell, just like at oral argument in SCO's first appeal.

If you are planning to attend the January 20th oral argument at the 10th Circuit Court of Appeals in Denver, Colorado, and I hope you are since the court doesn't in the normal course provide transcripts, be sure to call the court about a week beforehand, to make sure of what you can and can't have with you in the way of digital equipment and to verify the precise date, time, and courtroom, which will be announced about a week before it happens if there is a change. Right now, it's scheduled for January 20, 2011 at 9:00 am MST in Courtroom IV, Byron White United States Courthouse, Denver, at the 10th Circuit Court of Appeals, but verify closer to the date. Last time, laptops were allowed inside, but cell phones were confiscated and returned after the hearing. If you are allowed to bring your laptops in again this time, you might want to have some resources handy, at least SCO's appeal brief, Novell's opposition, and SCO's reply. It's SCO's appeal, so the topics will be those they raised in their briefs.

Some of you are wondering perhaps why Novell has an appellate attorney on the team, Deanne E. Maynard, if Jacobs will be the one doing the talking at the hearing. I'll explain something about appeals that may help you understand. Appeals are a legal speciality. It's like with doctors. If you don't know what's wrong, you go to the general practitioner. If you need surgery, you go to a surgeon, but if you want a mole on your chin evaluated, you likely want a specialist who knows cancer when he sees it. The law is like that to some extent, in that no one person can know all the ins and outs of every area of specialization.

But why would appeals be a speciality? If you go to this United States Courts page on rules for federal courts, notice that there is a separate category of Federal Rules of Appellate Procedure [PDF]. 67 pages. By separate, I mean separate from the Federal Rules of Civil Procedure [PDF], the rules the District Courts follow in civil cases. Another 166 pages. And the rules change from time to time. That's just procedural rules. There are, by the way, local court rules in each court as well, and nobody can keep it all straight in one brain. So lawyers specialize. Some can do it all, from local courts to the US Supreme Court, but you still would want an appeals specialist to make sure you don't mess up on a rule. You also want the specialist to help you evaluate the appeal, helping you figure out what issues to raise if you are the one appealing a decision or if you should cross appeal or not if you won below and now the other side is appealing, and if so what issues to raise. Remember when Boies Schiller messed up in Daimler-Chrysler in the attempted appeal? It can happen to the best. Law is complex. That's why I always tell you not to set foot in a court of law without a lawyer, if you can help it. If they mess up sometimes, and they do, what in the world will you do on your own?

Most of the rules have to do with what form must be filed with whom, who you need to serve with the document, and when, motion practice rules, the various deadlines that must be met, how to handle interest on judgments if a decision is reversed, and more esoteric things like how to handle it if a client dies after you've filed a notice of appeal or if it's a case challenging the constitutionality of a federal or state statute. But there's also a lot of hands-on experience that you want to tap into, things like what the various judges like and don't like. Once you've appeared before a judge, you get a feel for the lay of the land.

Here's the rule on oral argument, from page 51 of the PDF:

(2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

The panel in this case has not yet been assigned and announced, so presumably this is still conceivable, although unlikely, again because of the complexity of the litigation.

So just because Morrison & Foerster has an appellate lawyer, Ms. Maynard, that doesn't necessarily mean the specialist will handle the oral argument. In a case as complicated and drawn out as this one, it would be very hard for anyone new to step right in and be able to recall all the details as well as the lawyer who handled the trial below. So it's not a surprise that both Singer and Jacobs will be back.

If you recall, appeals are largely answering questions from the panel. If you watched the Proposition 8 appeal on CSPAN, you are familiar with the process. If you missed it, it's still available in CSPAN's library, so you can watch a few moments at least to get a feel for the process. The attorney who argued on behalf of traditional marriage, Charles Cooper, was extremely effective, as they all were that day, I thought, but Cooper especially, because he came across as sincere and honest. At one point, a judge asked him a question and even he had to say he didn't know the answer, and the judge replied that it was better to say you don't know than to guess. But best of all is to know.

The briefs, which the appeals specialist will likely have been hands-on in strategizing and preparing -- and which the judges will have read -- are the foundation, but then on the day of the hearing, the judges will be asking clarifying questions about things they want more information about, and you want someone standing there able to knowledgeably respond from memory, ideally, no matter what they ask.

There is absolutely no way to know in advance exactly what the judges might choose to focus on, so you have to prepare for any possible issue to be raised. If you watch Mr. Cooper at the very end of the hearing, you'll see him expertly responding to questions the judges asked, changing his own course of action to address an issue they raised that I don't think anyone was expecting would play such a prominent part. Each side gets only a matter of minutes usually, so you want your answers to be ideally immediately at hand, not something you have to look up or confer about. And if a judge wants to know if the record contains anything about X or Y or Z, you want to be able to say not only that it does but where in the record the judge can find it. Again, in the CSPAN hearing, you'll see Boies doing exactly that in a very impressive way.

As I mentioned the other day, we've updated the Trial Transcripts section of Groklaw's Transcripts page, adding links to all the trial transcripts in both SCO v. Novell trials, so that it'd be a lot easier to find what various witnesses said on the stand in 2008 and in 2010. If you want to refresh your memory on what Darl McBride or any particular witness said and compare it with what is said in the oral argument, you can do so quite easily now. I think it's a much better map, but probably not for the oral argument, since that will be on the law, not the facts, but then again, this is SCO. If you recall, the last time, SCO argued on appeal as if the APA said "pertains to" instead of what it actually said, "required for" -- narrower language -- but the judges noticed it and called them on it. So I've learned never to predict what SCO might do.

We also have transcripts of all the pre-trial hearings going back to 2003 in all the various SCO litigations, SCO v. IBM, SCO v. AutoZone, SCO v. Daimler-Chrysler, the SCO bankruptcy, and Red Hat v. SCO, all on that same page, as well as in SCO v. Novell, so you can deep-dive if you'd like to and follow the thread from the beginning to the end. Both sections have links to PDFs, text versions, and Groklaw's reports from the courts. I hope you find it useful. I'm positive it will be useful for historians and law professors wanting to use the SCO saga to teach their students to have it all organized in one easier-to-find place. We're still working on an Exhibits section, which we'll add when it's done, listing all the exhibits used at trial that we can identify from the transcripts and showing when they were introduced.


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