, , , , , , ,

By Greg Haubrich
Foshee & Yaffe


Supreme Court Justice Thurgood Marshall

When I was a law student I happened to be in Washington, D.C. so I went to watch oral argument at the United States Supreme Court. It was 1985. The case was about a lady whose religion didn’t allow her to have her photo taken. Therefore she could not get a Kansas State I.D. card or driver’s license. She claimed it was an infringement of her right to religious freedom. Her lawyer argued that the State could issue her an I.D. that had a description of her physical characteristics, and police could rely on that for instant identification.

At the time Thurgood Marshall was 80 something. He was the first black Justice of the Supreme Court. He was a brilliant lawyer and had fought and won Brown v. Board of Education, which forced schools to integrate because “separate” could never be “equal”. In his age he had become fat and had a couple of warts and big cheeky jowls. Justice Marshall said to the woman’s young, idealistic lawyer: “Are you telling us, Counselor, that a police officer in need of instant identification could identify your client as well from a physical description as from a photograph?” The corn-fed Kansas boy said “yes, your Majesticiticy”, or whatever it is they call the Big Supremies.

So Thurgood Marshall said: “Very well, Counselor …. Describe me.”

The lawyer declined. I was thinking: “Yeah, right, Your Honor, warts, jowls, eyes hidden in folds of fat …. age spots … deep melodious voice … ” and so forth. The case was lost.

But that was oral argument. In law school we trained and studied for oral argument and had competitions, called “Moot Court”, to learn to become great “appellate advocates”. We would go before the Supreme Court and astound them with our verbal brilliance, and our clients would be saved or served and justice would be done.

Except, not so much.

Although I handle personal injury cases from the beginning of the injury, through negotiations with insurers, to litigation, trial, and appeals, in 28 years I have only had three oral arguments on appeal. I don’t really know why the system evolved this way, but in Oklahoma State Court we rarely have oral arguments in appeals. It’s all done in the briefs, the written word.

Appeals take a while. After an adverse ruling or verdict you have thirty days to file an appeal. Then the Court Clerk has 180 days to compile and index the “Record on Appeal”. The appealing party gets 60 days after that to file their “Brief in Chief”; the “Appellee” gets 40 days to file a “Response Brief”, and the “Appellant” gets 20 days to file a “Reply”.

Then, you sit and wait, and hope. The case gets assigned to one of the four divisions of the Court of Civil Appeals. About a year later that 3-judge panel issues its decision. The loser can then file a “Motion for Certiorari”, asking the appeal to be taken up by the Oklahoma Supreme Court, which can take over the case, strike the CCA ruling, and decide the case on its own. This can take another year …..

Appeals are expensive. Leaving aside lawyers’ fees, the Appellant has to purchase trial transcripts and pay appeal costs. However, at the present time we have an excellent set of appeals court judges and Supreme Court justices, dedicated to preserving the right to jury trial in civil cases in our State. It’s a big improvement from the late sixties, when we had Supreme Court justices caught taking bribes.

An appeal brief is a big project. There are certain formats you have to follow and items you have to include. There are very specific rules. You do not get to attach new evidence. Any reference to testimony or evidence is to the “Record on Appeal”, which includes the pleadings, transcripts, jury instructions, and other items which were considered by the trial court. For instance, you can’t appeal from a judge’s ruling on the evidence, or error in the jury instructions, unless your lawyer made the proper objections and an appropriate record in the District Court proceedings.

As a matter of tactics, I like to have one or two potential appeals built into the record in any jury trial, just in case the jury doesn’t see the case our way. However, 90% of jury verdicts that are appealed are useless appeals. Our judicial system has built into itself such a high level of respect for the jury that civil jury verdicts are very seldom overturned by the appeals courts. The trial judge’s job is to make rulings on evidence and give the jury appropriate instructions on the law. Almost all evidentiary rulings are within the discretion of the trial judge, so rulings on evidence seldom result in verdicts being overturned. Errors of the Court in jury instructions do sometimes result in a case being sent back for re-trial, but only if the error is such a gross misstatement of the law that it is clear to the appellate court that the jury was misled into making an incorrect decision.

The lessons? 1) Win your case in the trial court, because appeals are lengthy, expensive, and doubtful. 2) Settle your case if you can, because even if you win a big verdict the other side can hold off paying you for a couple of years, and then if they win the appeal you’ll have to try the case all over again. 3) Have a trial lawyer who knows the appeal process, so that all appropriate bases for appeal will be properly laid down just in case you lose at trial.