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!

Evidence Rules Matter: Best Evidence Rule and Hearsay Require Reversal

In an appellate victory for DPW Legal, the Second District Court of Appeal issued an opinion today reaffirming that banks seeking to foreclose on homes must strictly adhere to evidentiary rules governing negotiable instruments and business records.

In Heller v. Bank of America NA, No. 2D14-3530 (Fla. 2d DCA. Jan. 27, 2017) [.pdf], the Bank at a foreclosure trial offered into evidence a copy of the note, rather than the original note, with its counsel asserting that the original had been recently filed with the court clerk. The trial court admitted the copy over defense counsel’s objection, citing the Best Evidence Rule, Section 90.953, Florida Statutes. The Bank also admitted into evidence (again over the homeowner’s objections) testimony of its representative based not on personal knowledge, but on his review of business records that were not in evidence or elsewhere in the court file.

DPW Legal attorney Dineen Pashoukos Wasylik argued on appeal that both rulings were abuses of discretion and an erroneous interpretation of the evidence code, and the Second District agreed. First, the Court held that Section 90.953 of the Florida Evidence Code requires any party seeking to enforce a negotiable instrument—such as the promissory note involved here—to produce and surrender the original of the instrument to the court. The Court rejected the Bank’s argument that the trial court was entitled to rely upon counsel’s assertions that the original had been filed with the clerk. The Court reaffirmed the longstanding tenet of law that a trial court may not “rely on an unsworn statement of counsel to make a factual determination.”

Florida Supreme Court Announces New Test for Harmless Error in Civil Cases

One of the most important tasks in evaluating an appeal is determining not just whether the trial court committed legal error, but also determining whether that error is harmful enough to warrant reversal. And one of the more frustrating parts of that analysis — particularly where the evidence statute is at play — has been determining how the legal rules for evaluating whether error is harmful set out in criminal cases apply to civil appeals. The Florida Supreme Court last month helped civil practitioners along in this task by expressly defining the harmless error test in civil appeals, and holding that it is exactly the same as in criminal appeals. The case came to the court in the context of a certified question from the Fourth District Court of Appeal, asking:

IN A CIVIL APPEAL, SHALL ERROR BE HELD HARMLESS WHERE IT IS MORE LIKELY THAN NOT THAT THE ERROR DID NOT CONTRIBUTE TO THE JUDGMENT?

Special v. West Boca Med. Ctr., No. SC11–2511, 39 Fla. L. Weekly S676, 2014 WL 5856384 at *1 (Fla. Nov. 13, 2014) [.pdf]. The court answered NO to this question, and instead held civil appeals to the same (and more difficult) standard found in crimnal appeals. The court first discussed in-depth its leading criminal case on the issue, State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). It then announced the following rule:

To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.

Id. at * 3 (italics added). Applying this test, the court explained that the appellate court analyzing the alleged error must focus on the effect on the trier-of-fact, not merely the result. Id.. Specifically:

As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.

Id. at *4. The Court explained that this “no reasonable possibility test” properly places the burden on the party who invited the error, and “will foster consistency in appellate courts’ analyses of harmless error.”

The Dissenters: Too Far, or Not Enough?

The announced rule garnered the support of only 4 out of the Court’s 7 Justices, however. Justice Pariente wrote a detailed dissent setting out her alternative proposed test but finding reversible error even under her proposed less-strict test. Justices Polston and Canaday sided with Justice Pariente on the proper test, but in their view the trial court did not commit reversible error under the proper test. Justice Lewis also dissented in part, but only because he would have gone further in finding error.

Justice Pariente’s Dissent in Part: “More Likely Than Not” Test

Justice Pariente dissented in part, focussing on the difference between criminal and civil cases. Her dissent explained:

I dissent, however, from the majority’s decision to adopt the same harmless error standard for civil cases as is used in criminal cases, despite the different burdens of proof and constitutional interests that are implicated in the civil and criminal contexts.

Id. at *13 (Pariente, J. dissenting). Justice Pariente would have made the test ““more likely than not” rather than “no reasonable possibility.” She explained:

[B]ecause of the differing burdens of proof and constitutional rights at stake, I disagree with the majority’s adoption of the identical standard for harmless error in civil cases as applies in criminal cases. By adopting the test for harmless error that applies to criminal cases without even referencing the different burdens and interests that apply in the civil context, the majority favors form over substance and offers no compelling explanation as to why the “no reasonable possibility” language from DiGuilio, which is rooted in the “beyond a reasonable doubt” burden of proof, should be used in civil cases. As stated by the Fourth District, the harmless error test for civil cases “should acknowledge the particular attributes of those cases.

Id. at *14 (Pariente, J. dissenting).

Justices Polston’s Dissent: Wrong Test, Wrong Result

Justice Polston, joined by Justice Canaday, agreed with Justice Pariente and took her anlysis one step further: Not only should the “more likely than not” standard apply in civil cases because of the different burdens of proof, but applying that test to the facts of this case, they would have found any error harmless.

Justice Lewis: “Our Courts Will Not Review Allegations of Error Lightly”

Justice Lewis, on the other hand, agrees with the test adopted by the Court. His quibble was mostly with the nuts and bolts of the tests’ application in this case, and not the adoption of the “no reasonable possibility” test. Indeed, the concurrence portion of his opinion explains that:

Equity and logic demand that the burden of proving an error to be harmless must be placed on the party who improperly introduced the evidence. Placing the burden on the party that introduced the error serves not only to penalize the offending party, but also discourages future efforts to introduce error into proceedings…. [B]y applying the DiGuilio test in the civil context, we signal to litigating parties that our courts will not review allegations of error lightly, nor perpetuate such errors by affording them less scrutiny than the “reasonable possibility of affecting the verdict” standard provides.

Id. at *21. Justice Lewis also pointed out that the statutory test for harmless error, as set out in § 59.041, Fla. Stat., is identical for both civil and criminal cases, so the courts’ application of the test should be identical as well.

My Take

It will be interesting to see how this decision ripples through the courts of appeal. It likely should result in more reversals, but I will be curious to see, statistically, whether it actually does. I suspect an uptick in PCA’s instead.

I note that a motion for rehearing has been filed in this case, so the decision is not yet final. I’ll update here when it is finalized.