Freshwater: Appeal goes to the court

Posted 3 February 2012 by Richard B. Hoppe

I've learned that leave has been granted for acceptance of the amicus briefs from the Dennis family and NCSE. The briefs in the case are now complete (see NCSE's compilation). I'm told that Freshwater requested an expedited hearing, meaning that only the initially submitted briefs--plaintiff's, defendant's, and the two amicus briefs--will be in play. The case has been submitted to the appeals court where it will be heard by a three judge panel. They may or may not schedule oral arguments. If they do, I'll try to be there.

23 Comments

richardpenner · 3 February 2012

I once went to a three-judge Federal appeal in Honolulu. The appeal concerned the 2008 dismissal of the anti-LHC lawsuit. The case never proceeded to the scientific merits because the law didn't say what the plaintiff thought it should say. But... I went to Hawaii :) -- My Advice, know the rules of the court. If they say you can't bring a recording device, then DON'T. Lots of courts have security stations, so only bring the essentials. Note pad + multiple pens/pencils. Water if permitted. Money for lunch and ID. Don't expect people to be able to parse the legal topics that you half-grasp in the same way that you do.

http://sciforums.com/showpost.php?p=2566267
http://sciforums.com/showpost.php?p=2566933
http://sciforums.com/showpost.php?p=2571435
http://sciforums.com/showpost.php?p=2582658
http://sciforums.com/showpost.php?p=2609237

http://www.symmetrymagazine.org/breaking/2010/08/26/lhc-lawsuit-dismissed-by-us-court/

harold · 3 February 2012

Don’t expect people to be able to parse the legal topics that you half-grasp in the same way that you do.

Your advice sounds very reasonable (I don't live anywhere near these proceedings and wouldn't be able to go to them if I could, but it sounds like great advice for those who can). I am confused by the sentence I quote above, though. Could you clarify what you mean?

harold · 3 February 2012

That's "wouldn't be able to go to them if I did (live near them)"; no comment is short enough to justify skipping preview, it seems.

richardpenner · 3 February 2012

There are levels of familiarity with any field of expertise. Lawyers and judges are professionals using industry jargon and standards to make decisions of what they communicate. Involved reporters can come up to speed on some of the particulars. But when you write about it, it's useful to your audience to be able to speak to why the judge was interested in a technical point. Did it concern some matter of fairness or due process? Did the question relate to contradictory information or arguments presented in the briefs?

An example of this is "standing" in Federal court. Article III of the US constitution limits the authority of the courts. For example, it has to be a real dispute between two parties who fairly represent opposite sides of the dispute and it has to concern a federal question. A parking dispute is unlikely to be a federal question. "Let's not make a Federal case out of it."
A lawsuit between California and Nevada state governments is likely to be a federal question and the state governments might be the best parties. A lawsuit between a Californian political candidate who does no business out-of-state and the government of Nevada over laws which are only enforced in Nevada is less likely to have standing because there is no concrete question here -- it sounds largely hypothetical.

As most of us are not lawyers, and the laws vary from state to state, being able to bring courtroom activity to life in a meaningful way can be as difficult as summing up a particular lecture in comparative anatomy to someone who hasn't taken high school biology and has never really thought about the insides of living things.

eric · 3 February 2012

richardpenner said: As most of us are not lawyers, and the laws vary from state to state, being able to bring courtroom activity to life in a meaningful way can be as difficult as summing up a particular lecture in comparative anatomy to someone who hasn't taken high school biology and has never really thought about the insides of living things.

I think RBH has done a fine job in his previous posts...over the last two years of the trial. So, how about we be constructive in our comments, and not make perfection the enemy of good. Your caution is noted. Now, what should we do about it? Should he not report at all? Or are you stepping forward to do it in his place? Or do you have another option?

ahcuah · 3 February 2012

In Ohio, the default is to have oral argument, so you can be sure that they will be scheduled. Expect the oral argument to be 4-5 month after the filing of the Reply Brief.

thetimtimes · 4 February 2012

I wonder if the ultimate conclusion to this Freshwater affair will come before or after Rossi and his E-Cat (free energy) con comes unglued. Rossi is claiming to be looking for a US factory to build A MILLION (lol) e-cats for delivery in the next twelve to eighteen months.

http://thetimchannel.wordpress.com/2012/02/03/hot-air-vrs-hot-water/

It is gobsmackingly amazing to me that Freshwater has been able to drag this out so long. If nothing else, it highlights the obvious inefficiency in our courts to deal with what, in the overall scale of things, is a rather minor labor dispute. The guy has a clear record of asshattery in the classroom. I wonder how many decades a decision in a situation with a little more nuance would take.

Enjoy.

cmb · 4 February 2012

eric said:
richardpenner said: As most of us are not lawyers, and the laws vary from state to state, being able to bring courtroom activity to life in a meaningful way can be as difficult as summing up a particular lecture in comparative anatomy to someone who hasn't taken high school biology and has never really thought about the insides of living things.
I think RBH has done a fine job in his previous posts...over the last two years of the trial. So, how about we be constructive in our comments, and not make perfection the enemy of good. Your caution is noted. Now, what should we do about it? Should he not report at all? Or are you stepping forward to do it in his place? Or do you have another option?

I too think RBH has done a fine job in bringing the Freshwater saga to us. I have closely followed the story here and also in The Mount Vernon News and The Columbus Dispatch. I know some of the players involved in the story. RBH has meticulously presented the facts and when he expresses his opinion, he clearly states so. His characterization of the community and the people involved in the case (at least the people that I know) are dead on. When RBH is unsure what the reasons for a particular move are, he says so and either seeks out the answer and reports the information later or he will ask for clarification from any lawyers (or other experts) following the thread. We have been well served by RBH.

harold · 4 February 2012

eric said:
richardpenner said: As most of us are not lawyers, and the laws vary from state to state, being able to bring courtroom activity to life in a meaningful way can be as difficult as summing up a particular lecture in comparative anatomy to someone who hasn't taken high school biology and has never really thought about the insides of living things.
I think RBH has done a fine job in his previous posts...over the last two years of the trial. So, how about we be constructive in our comments, and not make perfection the enemy of good. Your caution is noted. Now, what should we do about it? Should he not report at all? Or are you stepping forward to do it in his place? Or do you have another option?

Not only do I agree, but I think that the obnoxious term "half-grasp" is clearly unfair. These columns have done a very good job of dealing with the legal issues, and there has been plenty of (relevant and constructive) feedback from (actual) attorneys in the comments sections. Richard Penner doesn't seem to have any specific, relevant comments to make about the case or the coverage. I do agree with his advice that one should be aware of security requirements, follow court rules, bring money for lunch, and so on.

W. H. Heydt · 4 February 2012

In order to get a feel for, and a handle on, the ebb and flow of courtroom proceedings, reading Groklaw (www.groklaw.net) would be useful. They've been reporting on the goings on of several Federal civil cases for years and the person that started the site is a paralegal, so her commentary is...enlightening.

On Groklaw one can see reports of hearings and then get a later chance to read the transcripts and see how well people were able to pick up on what went on.

--W. H. Heydt

Old Used Programmer

richardpenner · 4 February 2012

Sorry, but in my opinion appellate hearings are harder to follow than the days and days of witness testimony. With witnesses, the sides are trying to paint a picture about how what was testified to leads to a preponderance of the evidence of what the facts of the case are. In this hearing the goal (by the appealing party) is presumably to get a courtroom trial in the lower court and one can expect some very idiosyncratic opinions being expressed as to what the law and evidence says. The pace at which topics are covered should be much faster, and the questions will be answered in this case by lawyers who are more goal-driven than the earlier sworn witnesses.

While RBH can certainly educate himself on the text of the statutes and case laws cited in the appeal briefs, and I can't criticize what he has done before, there will be legal topics that he does only half-grasp. I wish I could give you some concrete examples but Ohio is a legal system unknown to me. For all I know, the judges also could be blindsided by some point they had not considered while reading all the briefs, with the lawyers hoping to get the judges to see it their way. Sorting out what the judges really think or what points the judges found convincing can be difficult with the judges desiring to appear professional and impartial. Even if the appellants make 5 bad arguments the judges want to listen in case the sixth one is not only sound but important. Also, when judges ask questions, I think that's the time most blessed by the courts to introduce arguments and case law not in the briefs. That's hard on both the attorneys and the reporters.

I also note that RBH only hopes to attend. With no date scheduled, who knows if he will be free to attend? I took the last sentence in the article to suggest a need for backup reporters to follow in RBH's footsteps. It was this generic reporter, not RBH specifically, that I was offering advice to. Harold's first post was also seemingly in the context of a prospective backup reporter.

I know people who attended law school who can't meaningfully address the topic of standing, If you still think "half-grasp" is overly harsh, my apologies. Maybe Ohio law as applied to this case is much simpler than I suspect.

Richard B. Hoppe · 4 February 2012

IANAL, obviously, and possibly won't be able to follow the technical by-ways of the oral arguments, should oral arguments be held. My goal would be to report the proceedings as accurately and in as much detail as possible so that those with the requisite expertise can help the rest of us interpret what went on.

And I don't think any "standing" argument has been made in this case, unless it refers to the amicus briefs, which have been accepted, so that at least isn't a concern. I take it that was a generic example, not a comment about this case.

SensuousCurmudgeon · 4 February 2012

Richard B. Hoppe said: IANAL, obviously, and possibly won't be able to follow the technical by-ways of the oral arguments, should oral arguments be held.

The oral arguments should be mostly based on what's been said in the parties' briefs, which should be available for viewing ahead of time. There won't be any presentation of evidence, but possibly a discussion of whether the evidence previously presented justifies the result. I doubt that you'll have any problems following what happens. The only interesting part will be the judges' questions and how well they're answered.

tomh · 4 February 2012

richardpenner said: It was this generic reporter, not RBH specifically, that I was offering advice to.

Now that's the part that confuses me. You've talked a lot about how complicated the proceedings will be and how difficult it will be for anyone to understand what's going on (which I doubt), but as far as I can see you've given no advice whatsoever. Well, except to be careful going through security. What is your point? That everyone should ignore it because it might be complicated? I don't get it.

Flint · 5 February 2012

I think we're being warned that the appeals court could very well arrive at some incomprehensibly nonsensical decision in apparent ignorance of every relevant fact in the case, for purely legal reasons having little to do with logic or evidence, since advanced appellate law doesn't much concern itself with such things.

harold · 5 February 2012

tomh said:
richardpenner said: It was this generic reporter, not RBH specifically, that I was offering advice to.
Now that's the part that confuses me. You've talked a lot about how complicated the proceedings will be and how difficult it will be for anyone to understand what's going on (which I doubt), but as far as I can see you've given no advice whatsoever. Well, except to be careful going through security. What is your point? That everyone should ignore it because it might be complicated? I don't get it.

Looks like there could be some concern trolling going on here. Naturally, no-one commenting here has openly suggested that they want Freshwater to win the appeal, it's just that those courts are so totally unpredictable, and that law is so totally incomprehensible, why, even to many attorneys, let alone pitiful lay people, that we shouldn't pay attention, try to understand, etc...

richardpenner · 6 February 2012

Harold,
I'm in allergy season to the point that it hurts to look at the world around me. I still don't see what prompted you to read into my few words some sort of anti-science, pro-creationist agenda.

The law particular to Ohio is a vast body of work, and while I understand a large number of facts of this case, I don't know the first thing about Ohio labor laws, how Ohio handles the firing of teachers, or what the standard of review of the lower courts decision(s) is. I suggest that if someone other than RBH goes to this hearing, that they don't commit rookie mistakes like bringing an oversized tote filled with metal pens and laptops and snacks that the security station or court won't let them use. Silence that cell phone that no one ever calls you on. You might not get time to correct a mistake before the hearing is over.

Like RBH, don't try to interpret the law when you are taking notes. When you are writing it up, it is fair then to compare it to the arguments and allegations made in the briefings (I think all 4 are up on the NCSE site) or link to websites with court cases or statues (does Ohio have any of those?) or to go the extra mile like RBH and solicit legal opinions.

If you have access to a web site that gives you more freedom of layout than the comment engine, you might want to make a chart of where the parties agree and disagree on the facts and the law.

Sorry, RBH, that "standing" issue was left over from my 2010 time following a federal case. It was the only generic discussion of the law that I could write about without doing more research, and it is not even specific to Ohio law, let alone this case. My eyes hurt too much to fairly read the appellant's brief .. even if it wasn't largely written by Hamilton of laptops and water leaks -- and without knowledge of it the appellee's brief feels incomplete -- the appellee isn't required to actively make a case and doesn't want to alienate the judge by adding extra material. Someday, I will probably read all the briefs to get a grounding in what arguments were made for and against. But I got the impression that the appellants are waving the "viewpoint discrimination" flag when the question should (in my unread opinion) be solely one of the adequacy of the previous review.

Richard B. Hoppe · 6 February 2012

richardpenner is giving me what I interpret as well-meaning advice, and I have no problem with it.

harold · 6 February 2012

Concern trolling suspicion retracted with apology.

I can't say I look forward to seeing how things proceed for Freshwater, but I will certainly be keeping up with the story.

tomh · 6 February 2012

Richard B. Hoppe said: richardpenner is giving me what I interpret as well-meaning advice

You are very generous. richardpenner hasn't read the briefs and doesn't know Ohio law, yet, even though the law is "is a vast body of work", he has plenty of opinions about who is arguing what and how they should be arguing something different. His main concern seems to be that if you don't go no one else will be able to navigate the security check. Oh, and don't forget to make a chart. Why he bothers with such pointless posts is a mystery to me.

John_S · 6 February 2012

Flint said: I think we're being warned that the appeals court could very well arrive at some incomprehensibly nonsensical decision in apparent ignorance of every relevant fact in the case, for purely legal reasons having little to do with logic or evidence, since advanced appellate law doesn't much concern itself with such things.

That's true. An appeal isn't a re-trial. The trial has already occurred and all the evidence has been presented. You don' get to re-argue the same points you made at the trial itself in front of a new audience in hopes they'll agree with you where others didn't. The appellant isn't challenging the evidence. "Relevant facts" don't enter into it. They've already been presented. He's basically claiming that the law itself was incorrectly applied. So the only issue is what the law says. The law is already written. Whether it says what someone would like it to say, or what someone thinks is logical, or whether the result is incomprehensible is a matter for the legislators who make the laws.

Paul Burnett · 6 February 2012

richardpenner said: ...or link to websites with court cases or statues (does Ohio have any of those?)...

There are lots of statues in Ohio, mostly in the bigger cities. [/pedant] :)

Kevin B · 7 February 2012

Paul Burnett said:
richardpenner said: ...or link to websites with court cases or statues (does Ohio have any of those?)...
There are lots of statues in Ohio, mostly in the bigger cities. [/pedant] :)

But do they have spelling bees, or only hover flies?