Tag Archives: Appellate court

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.

MKT

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

 

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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

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