Appealing Appeals Applied, Technically Lawful

Is Your Cell Phone Private?

“The Right to be Let Alone— the Most Comprehensive of Rights and the Right Most Valued by Civilized Men.”1

An Unreasonable Intrusion upon Seclusion

– William L. Prosser, Legal Scholar (1960)

Tomorrow, the US Supreme Court hears arguments over the constitutionality of searching a person’s cell phone without a warrant. This Fourth Amendment area of law is complex and always nuanced. Warrantless search cases usually boil down to whether or not the person has a reasonable expectation of privacy at the time of the search. If there is a reasonable expectation, then the search may be found unconstitutional because it violates the Fourth Amendment’s protections.

My cell phone is my best friend

Carrie Underwood, Country Music Star (2013)

In the two cases the Court hears tomorrow, Riley v. California and United States v. Wurie, the former involves a smartphone and the latter a flip phone. The big difference between the two is the amount of data they may store and the advanced functions one is capable of performing. This results in one device conceivably having more confidential and private data than the other. On the flip side, how confidential and private do you consider your phone’s data? Do you ever leave it out of reach? Do you charge it in an open place that’s accessible by others? Is it password protected? Is it encrypted?

Use technology rather than being used by it

– Neil Postman, Cultural Critic (1996)

I am unsure if the Court is well-equipped to decide technology cases. It was only 4 years ago they decided a sexting case involving a warrantless search of a government employee’s pager. City of Ontario vs. Quon, 130 S.Ct. 2619 (2010). Yes, a pager in 2010. Last summer Justice Sotomayor stated the Justices do not use e-mail even internally (but their staff does). In another technology case involving streaming TV earlier this month, Justice Scalia didn’t seem to understand HBO is not a broadcast TV channel you must pay to obtain. Chief Judge Roberts, whose initial drafts of decisions are written longhand in pen and on paper instead of with a word processor on a computer, asked during oral arguments in the 2010 pager case what is the difference between an email and a pager.


Google policy is to get right up to the creepy line and not cross it 

    – Eric Schmidt, CEO Google

In prehistoric technological times, the Court decided we had a lower expectation of privacy in our gas powered, internal combustion vehicles (Motor Vehicle Exception) than in our homes. Carroll v. United States, 267 U.S. 132 (1925). Armed with only probable cause, a search of your car without a warrant is permitted. Id. More recently, but still in a technologically antiquated time, the Court decided a person in a telephone booth had a reasonable expectation of privacy (Hey, does anyone remember telephone booths? Or payphones?). Katz v. U.S., 389 U.S. 347, 350 (1967). But a person does not have a reasonable right to privacy in the actual numbers they have dialed to call someone on the phone. Smith v. Maryland, 442 U.S. 735 (1979).

A business cannot expect privacy. California Bankers Ass’n v. Schultz, 416 U.S. 21, 65 (1974). However, the government is not allowed to gather evidence against you via surgery—yes—medical surgery. Winston v. Lee, 470 U.S. 753, 758 (1985). Reasonably expecting your garbage is private would be a mistake. California v. Greenwood, 486 U.S. 35 (1988). In 1990, the Court said sobriety checkpoints are a reasonable way to search and seize (and catch drunks driving). Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). If you work for the government, your office is not private if your are suspected of work-related misconduct. Samson v. California, 547 U.S. 843 (2006). Although the rule established may be a “freedom-destroying cocktail” that encourages “malevolent” tipsters to make false reports, an anonymous tipster can now call 911 and the cop is authorized to stop you and search your car (despite your obedient driving skills) without anything more. Navarette v. California, __ U.S. __ (2014).


You already have zero privacy – get over it

– Scott McNealy, Co-Founder Sun Microsystems

You have to wait until sometime around June 2014 to find out if the US Supreme Court thinks your cell phone data is private. But in the meantime, below is a poll to indicate how private you believe your cell phone is. Let’s at least find out how people that actually use computers, cell phones, the internet and all kinds of modern electronic wizardry believe the right to be let alone is.


1 Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Brandeis,J., dissenting) and see The Right to Privacy, “Samuel Warren and Louis Brandeis, 4 Harvard L.R. 193 (Dec. 15, 1890)




Appealing Appeals Applied, On Lines & Inner Nets, Publicly Recorded

A Daughter’s $80,000 Facebook Post

From the “Think Before You Post” File

Secrets Suck

A daughter violated the confidentiality clause in her father’s Settlement Agreement with a braggadocio posting on Facebook. Inevitably, the young lady’s post eventually drew the attention of the defense counsel in the employment discrimination case.

 “Mama and Papa … won the case against Gulliver,” she wrote referencing the  the employer. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Broken Promise

The trial court did not find the post a breach of the agreement. However, on appeal to Florida’s Third Circuit Court of Appeal, the appellate court reversed the trial court stating, “[B]efore the ink was dry on the agreement, and notwithstanding the clear language … mandating confidentiality, [he] violated the agreement by doing exactly what he had promised not to do.”  Apparently, the daughter had 1200 friends on the site so there was no claiming it was a private message or not intended for public consumption.

Unambiguously Expen$ive

After finding the terms of the agreement clear and unambiguous, the Court held:

In this case, the plain, unambiguous meaning of … the agreement between [the father] and the school is that neither [he] nor his wife would “either directly or indirectly” disclose to anyone (other than their lawyers or other professionals) “any information” regarding the existence or the terms of the parties’ agreement.

They disclosed it to their daughter and she disclosed to at least 1200 other people on-line with the Facebook post. This is a real expensive way to learn the internet is a public forum. It also is an expensive way to find out how easily a confidentiality agreement is breached.

Read the appellate decision here and more info from the news story is below.


Daughter’s Facebook boast costs former Gulliver Prep headmaster $80,000 discrimination settlement – Schools –


Appealing Appeals Applied, Civilized Proceedings

Freely Allowed As Justice Requires . . .

In re Weber, 392 B.R. 760 (8th Cir.BAP 2008)


     Case Conclusion Date:September 5, 2008     Practice Area:Appeals
                         REMANDED IN PART                                   
Description:I think every successful appeal is my favorite, but . . .

Adverse  7

This one was cool. I was litigation counsel at the district court level in an adversary proceeding challenging a Chapter 7 case due to fraud in US Bankruptcy Court in the Minnesota District. For evidence reasons (i.e. lacking), we did not move to amend the Adversary Complaint until less than a week (5 days) before trial. The claim we intended to add would alter the legal standard we needed to prove (used the loan proceeds to pay a tax debt under 11 U.S.C. § 523(a)(14)) to prevail and have the debt exempt from discharge. It was short notice and on the eve of trial, but the amendment would not have involved any delay or further discovery. So I said.

Factually Fraudulent

Same set of fraud facts, just viewed through a different lens. At least that was my argument. Nothing new here, just a different theory. No harm, no foul.  Nonetheless, the motion was so firmly denied even I thought I must have been out in left field– for about a minute. Not long after that the case tried and was lost after a bench trial. Time to shine on appeal and make it all right.

Discretion Abused

We appealed on a complex bankruptcy ground (debt found not exempt under 11 U.S.C. § 523(a)(2)(A) or (B)) to the 8th Circuit’s Bankruptcy Appellate Panel (BAP) but to no avail (clear error standard with de novo review). I insisted on raising the simpler, procedural error claim the Rule 15 motion to amend was wrongfully denied (abuse of discretion standard though).  As the appellate court said in the beginning of the Opinion, with an abuse of discretion standard they had to be left with a, “definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” A high bar to meet.

Harsh Denial

In denying the motion to amend before trial, the Judge did not mince words and it always sucks to read words like that about your conduct. As the BAP, citing the order denying the motion for leave to amend so it may live on forever provided in part:

None of these factual or legal issues are necessarily obvious and it would be unfair on the literal verge of trial to require the defendant to defend that claim. The plaintiff either intentionally or negligently failed to plead this cause of action originally or anytime prior to trial and it would be inequitable to allow her to do [so] (sic) now.

I never did understand why anyone would have intentionally left out the claim that wins in the end. But by the time the trial was over, it was obvious that if we could have amended the pleading and added the tax-related claim, we would have won. Hence, the necessity of the appeal.

Taking Exception

After quoting the stinging rebuke in the trial court’s order, the Appellate Panel shot right back, “We take exception to several of these points.” After that, the BAP went through the analysis they thought should apply.

They found the fact the debtor withheld discovery so we didn’t get the evidence needed to assert the claim until late in the game (and brought the motion the same day–5 days before trial) weighed in our favor. It was a fairly straightforward claim (for bankruptcy cases), that as usual the”§ 523(a)(1) claims turn on a simple determination of whether the tax debt paid arose from a tax year for which a return was due after three years before the date of the filing of a debtor’s bankruptcy petition.” If you followed that, go to law school.

Practically Speaking

The appellate court also found the amendment would not have resulted in unfairness or inequity to the Debtor, especially considering he was partly responsible for the delay in filing the motion to amend since he didn’t produce a check to the I.R.S. until well after it was due. And they were worried the debtor would get screwed?

But to top things off, the Appeal concludes the analysis with:

Finally, from a practical standpoint, it would have been a simple (and fair) matter to continue the trial to permit the Debtor to adequately prepare a defense to the § 523(a)(14) claim in light of the facts that this matter proceeded to trial less than five months after the complaint was filed, no previous continuances had been sought, and the only witnesses called to testify at the trial were Peterson and the Debtor.

In the end, the wise appellate panel of Judges decided a reversal of the order denying the motion for leave to amend was what lady justice said had to be done. Discretion was abused. The case was remanded back to the bankruptcy court and where we waited for a new trial date to be set.

Efficiently Effective

Instead of getting a date, the Trial Judge promptly reversed himself. By applying the same facts he already found at the trial to the new claim (technically not even plead out yet) he entered judgment in our client’s favor and the debt was excepted from discharge. It was nice to win. And I, for one, don’t mind winning when no one is looking since who else really understands what went on anyway unless they are directly involved. But the written opinion will live on!

There is a lot to be said about a truly efficient, no-nonsense Judge!


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Appealing Appeals Applied, Fraudulently Fooled, Legally Educated

Pretrial e-mail Scam Reports from Minnesota Court of Appeals


The Minnesota courts website,, reports fraudulent emails appearing to be from the a Court of Appeals has been making the rounds to in-boxes recently.  The official notice is below.

Five More Tips It’s a Fraud

1. No “complaint” originally filed with Court of Appeals

2. E-mail address not governmental

3. No “trial” in Court of Appeals

4. Poor grammar

5. No electronic communications YET from Minnesota Appellate Courts.

They play off fear and ignorance to have you bite on these e-mail scams so that you will open the attachments.  Don’t do it unless you have confirmed the e-mail from other sources first. Be diligent people!!! The fraud will never end but can be beaten with caution, knowledge and education!


Notice: Pretrial e-mail Scam Reported

The Minnesota Judicial Branch has learned of an e-mail scam where recipients are receiving a pretrial notice regarding a court complaint.  The public should be aware that the e-mails are not coming from the Minnesota Judicial Branch or the Minnesota appellate courts, and they should not open the e-mail or respond.  Official court communications will only be sent by phone or U.S. mail.  An example of the message is included below:

FROM: Minnesota Court of Appeals

Mon 2/3/2014 8:46 PM Pretrial notice Hereby we confirm that your complaint has been received together with enclosures dated January 30, 2014. The complaint will be reviewed in court in the nearest possible time based on the documents and information you have previously provided. You do not have to be present at trial in person if the Court does not suggest otherwise. Please use this link to check your complaint once again and confirm it. If we do not get your confirmation the claim will be cancelled. You will be further notified without delay of any judgement delivered in regard to your complaint. Sincerely, Court secretary



Appealing Appeals Applied, Attorneys & Lawyers & Counselors, Legally Educated

Civil Rights CLE and Upcoming Moot Court Competition


Civil Rights CLE

Today I had the pleasure of serving as one of the presenters at a CLE (continuing legal education) at the U of M Law School. It was on the same case we are teaching in our Civil Rights Moot Court class this year: Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, 724 F.3d 377 (3d Cir. 2013). It had the coolest title of any CLE I ever spoke at before: Corporations: How Human Are They? Do They Have A Right To The Free Exercise of Religion?

It’s an ObamaCare case, with a closely-held, private corporation and its shareholders (all part of a seriously religious family) wanting to be exempted from providing contraceptive-coverage for the company’s employees as required (“mandated”) by the new health care law. The corporation and shareholders claim the government mandating this preventive care coverage be provided violates their rights to freely exercise their religion under the First Amendment’s Free Exercise Clause in the US Constitution. The Religious Freedom Restoration Act (“RFRA”) is argued to require the US Supreme Court to apply a strict scrutiny analysis.

Oral arguments before the Supreme Court are on March 24, 2014 and the actual decision should be out early this summer. (My money is on the RFRA being struck down as unconstitutional–my money is $1.98 is all though).

Moot Court Competition

Before any of that occurs, the Conestoga case will first face the scrutiny of the 29th annual William E. McGee National Civil Rights Moot Court Competition on February 20, 21 & 22, 2014. This year about 34 teams of law students from across the country will argue the case in this inter-scholastic appellate moot court competition sponsored by the University of Minnesota Law School.

The competition’s mission is to promote interest, reflection and discourse among law students, law faculty and members of the practicing bar and bench in the substance, procedure and practice of civil rights law and to provide opportunity to interested law students to develop the oral advocacy and writing skills essential to be successful appellate practitioners.

We still need attorneys to act as volunteer judges so please contact me if you are interested. It’ll be another great competition this year and I’m proud to play a small part in it.


Appealing Appeals Applied, Attorneys & Lawyers & Counselors

Practice Tip for Aspiring Appellate Attorneys

courthouse-1330873-mIf you want a successful win/loss record* as an appellate attorney, always remember to only represent the Respondent when a case goes up on appeal.

In 2012, US federal courts of appeal granted the Appellants reversals in only around 12% of all civil cases appealed out from federal district courts, considered federal trial courts.

Nationwide in 2008 (most recent data I found), the combined rate for US state intermediate appellate courts  (e.g., usually state “courts of appeal”) that reversed lower court decisions averaged out at only 15%.

Also nationwide in 2008, in cases appealed to a state court of last resort (e.g., usually a state “supreme court”) the cases affirmed outnumbered reversals more than two-to-one. While nationwide the same year, cases affirmed by state intermediate appellate courts outnumbered reversals at a rate of four-to-one.

Finally in 2008, leaving my local courts last, but certainly not considering them least, in deciding 147 civil and criminal appeals combined, the Supreme Court of Minnesota only issued reversals in about 14% of all appeals. Meanwhile, in Minnesota’s intermediate appellate court, the Court of Appeals decided 2,046 criminal and civil cases, with the Appellants doing slightly better by obtaining reversals about 16% of the time.

The numbers don ‘t lie. If you want to have the best possible win/loss record for your appellate practice, the odds are much higher if you only represent the party that prevailed at trial court level: The Respondent.

If your practice allows you to pick and choose cases on this basis, please leave a detailed comment below explaining for me how it’s done, because I sure don’t enjoy that luxury in my practice!

* Other outcomes may be considered a “win” or a “loss” as well, but are not incorporated in the above discussion in order to keep the definition of a “win” as clean, clear and indisputable as possible. The outcomes left out that could be considered either a “win” or a “loss,” depending on the interpretation of each particular case’s final result, can include cases where an appellate decision is issued that modifies a lower court’s decision (one way or the other), cases when an order is issued dismissing an appeal (for any number of reasons), cases when an Appellant voluntarily agrees to dismiss the appeal (usually with undisclosed reasons), along with many other potential outcomes that are never so neatly and distinctly defined that they fit in a classical “win” column or “loss “column.

MKT–MKT Law–Appellate Practice Information