What’s it like to appear before the United States Supreme Court? Let’s talk about it, podcast-style.

The United States Supreme Court hears oral argument from attorneys in only about 80 cases a year. Thus, many appellate attorneys never have the opportunity to experience what it is like to actually advocate in the High Court. I (Jared) recently learned what it is like appearing before the Supreme Court from Duane Daiker, a fellow board-certified appellate specialist in Tampa Bay and a good friend of DPW Legal, on the Issues on Appeal podcast.

Duane Daiker and Jared Krukar sit with studio monitors and microphones at a table while recording a podcast
Duane Daiker and Jared Krukar recording
the Issues on Appeal podcast.
Not pictured? The feather quill pen
memento Duane keeps in his office.
(Photo courtesy of Duane Daiker and used with permission.)

Duane is the creator and host of Issues on Appeal. Each week he speaks with fellow appellate practitioners about topics that are interesting to, well, the same people we suspect are interested in this Florida Appellate Procedure Weblog!

Duane recently took his first trip as an advocate to the Supreme Court. He sat second-chair on a case he handled through the trial and intermediate appellate stages. This visit was a perfect topic for his podcast. But rather than just talk about his visit himself on his podcast, Duane enlisted me to guest host his show, and turn the tables on him.

I asked every question I could come up with that all of us inquiring appellate nerds would want to ask. Where do you go when you enter the court? What’s security like? Who comes and talks to you? Is there a lawyers’ lounge? What’s it like sitting at counsel’s table? Did Justice Thomas ask a question? I hear you get a feather quill–can I touch it? (Yes, I really did ask, and yes, I did get to hold it. You know you would ask, too.) Our discussion was full of interesting tidbits about the preparation, the day of argument, the people at the Court, and the entire experience.

If this sounds interesting to you, check out Episode 4 of the Issues on Appeal podcast, “At the High Court.” You can check it out at the link or on iTunes, Google Podcasts, or Spotify.

And if you like that episode, listen to some of the other episodes. Duane has already had a number of great guests. Dineen and I are both slated to be guests for future episodes. What will we talk about? Stay tuned to find out.

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We’ve discussed the SCOTUS in the past (for example, here and here) and we’re sure to do it again. Keep abreast of changes there or in other courts that are interesting or may impact your practice by subscribing for updates on the Florida Appellate Procedure Weblog.

Blurred Lines and Appellate Preservation

Gaye Family lead counsel Richard Busch (left) explains the surprising preservation issues.

The higher the stakes in the litigation, the more important it is to have an appellate nerd in your corner, because you can’t make your arguments to the appellate court if you haven’t preserved them at trial. Most folks who follow copyright law are aware that the Ninth Circuit late last month upheld the jury verdict in favor of Marvin Gaye’s family holding that the song Blurred Lines infringed the copyright in Marvin Gaye’s Got to Give it Up. See Williams v. Gaye, 885 F. 3d 1150 (9th Cir. 2018) [.pdf]. And while there are a lot of fascinating copyright issues there, even more important are the appellate preservation issues — the lawyers representing Thicke and Williams tanked large portions of their appeal before they even got there by failing to speak up at two important points at the trial: At the close of plaintiff’s evidence, and before the jury was dismissed after rendering its verdict.

Failure to make a Rule 50(a) Motion

In Federal Court, the rule that covers judgment as a matter of law (also sometimes called judgment notwithstanding the verdict or JNOV from the Latin judgment non obstante veredicto) requires that in a jury trial the Defendant must make a motion at the close of plaintiff’s evidence (Rule 50(a)) and then renew that motion at the end of the case (Rule 50(b)) in order to preserve a challenge to the sufficiency of the evidence. The Defendants were left with arguing that “a colloquy between their counsel and the district court regarding jury instructions and verdict forms qualifies as an “ambiguous or inartfully made” Rule 50(a) motion,” and should suffice for preservation purposes, but but the Court found that colloquy fell “far short” of even an inartful motion, and found sufficiency of the evidence unpreserved. Ouch. Williams v. Gaye, 885 F. 3d 1150, n.21 (9th Cir. 2018). In Florida, the equivalent requirement is for a motion for directed verdict.

Failure to Object to Jury’s Verdict

Defendant’s waived their objection to an alleged inconsistency in the jury’s verdict by failing to object before the jury was discharged. And this was not a controversial point — it was a pretty black letter rule that the court mentioned with citation to two older cases and moved on quickly. That objection must, must be made before the jury is discharged.

It can be very hard in the heat of battle — and trial can be a battle — to remember every possible preservation issue. That’s why we recommend you have an appellate specialist on your trial team. What you don’t want is to blur the lines of preservation.

Thank you to the panelists at the Florida Bar Business Law Section’s 9th Annual Intellectual Property Symposium for their fascinating presentations!

Eleventh Circuit Rule Amendments Effective April 2, 2018

The Eleventh Circuit has made a handful of changes to its rules affecting tax practitioners, appellate mediation, and the ability of counsel coming in after an appeal has been initiated to file a replacement brief. Specifically, the rule amendments:

  • Now require the Tax Court to prepare exhibits in the same way any District Court would, by deleting a sentence in Eleventh Circuit Rule 11-3.
  • Remove the local setting out a procedure for late-filed counsel to file a replacement brief before the Court, former Rule 31-6, and all references to it.
  • Delete the requirement that parties serve “an original and one copy” of the Civil Appeal Statement, and remove the requirement of filing copies of portions of the record with the statement, since electronic filing and access to dockets makes serving extra copies or record documents moot.
  • Without a specific rule governing replacement briefs, does this mean the Eleventh Circuit will no longer allow replacement brief practice? The answer is unclear, but I would counsel clients not to count on it.

    The new rules became effective April 2, 2018.