THE WEEK’S APPELLATE DEVELOPMENTS

 

[Posted September 2, 2010]  It’s been quite a week around the appellate courts.  The Supreme Court is meeting for writ panels; the Fourth Circuit decided today yet another appeal involving an intellectual property against the NFL’s Baltimore Ravens (more bad news for the team); and the Court of Appeals gives us some interesting decisions, including the latest application of the Fugitive-Disentitlement Doctrine.  But the biggest news of the week came out Tuesday, and is no longer a surprise.

 

Supreme Court elects new chief

Justice Cynthia Kinser was selected by her peers on Tuesday for the center chair for a four-year term beginning February 1.  She will take over for the current chief justice, Leroy Hassell, at the end of his second term.  If this move were to signal a major change for appellate lawyers appearing before the court, I’d tell you; but in truth, it doesn’t.  The makeup of the court will change slightly next year when Justice Koontz retires, but other than that, you’ll still be arguing to the same justices next year; they’ll just be sitting in different chairs.

 

At yesterday’s writ panels, several lawyers began their remarks by addressing the chair of the writ panel, who happened to be Justice Kinser, by saying, “Chief Justice Kinser, Justice Carrico, Justice Lemons . . .”  After a couple of these, she gently told one of the lawyers that while she appreciated the courtesy, she wasn’t going to be chief until February.  Justice Lemons chimed in with a smile, “At least they [gesturing to the other two members of the writ panel] get to do that ‘chief justice’ routine; not me . . .”

 

What to call a jurist

This isn’t purely appellate news, but it’s an intriguing question that many lawyers will wonder about:  How do you address a female jurist?  That question popped back into my mind recently, both because of the election of Virginia’s first female chief and because of an interesting op-ed essay I saw in last Sunday’s New York Times.  The essay was entitled, “Don’t Call Me . . .” and was about the problematic use of the term ma’am in addressing women.  (For the benefit of you old-line Southerners who wonder how the use of this familiar term could offend anybody, the article mentions that some women perceive that it’s an unwelcome term because it suggests a transition of age.)

 

In our context, is it okay to respond to a question from the bench, “Yes ma’am” (or, for that matter, “Yes, sir”) instead of the more accepted, “Yes, your honor”?  This is not exactly a new topic; lawyers and judges writing appellate-practice treatises have waded in on the question, and they all take the “your honor” side of the debate.  But based on what I have seen, none of them appear to have practiced much in Virginia.  Yesterday I heard lawyer after lawyer use the terms sir and ma’am without raising a single judicial eyebrow.  This may be because of the prevalence of those forms of address here in the South; or it may be because this crop of justices is much too personable to take offense at something like this.  They might regard it as, at most, a trifling informality.

 

Last October, I got the opportunity to discuss this issue with an appellate jurist from, as I recall, the upper Midwest.  I asked her if it bothered her when an advocate called her “ma’am” instead of “your honor.”  At first, she said that it did, but then she qualified it by saying that she sensed a smug disrespect hidden in the use of the word.  I can easily see that when uttered with a sneer in one’s voice, “Yes, ma’am” can come across as offensive.  But the same could be said for “Yes, sir,” or even “Yes, your honor” (heck, even “yes, your majesty,” if you say it right).  I sensed that when delivered with unambiguous respect, the term probably would not have troubled her in the same way.

 

I’m not going to give you a categorical statement that using sir and ma’am in our appellate courts is perfectly acceptable.  The term your honor really is best, because each person occupying a bench has earned it.  All I’ll say is that based on what I have seen (and yes, on what I have done, because I use those terms), you aren’t likely to get in a great deal of hot water if you answer with a respectful, “No, ma’am.”

 

Now, if you’re fool enough to go to the extent of addressing the court as “You guys,” as one unfortunate attorney did not too long ago, then I can’t help you.

 

Schedule change for September session

The argument docket is out for the Supreme Court’s September session.  There are 26 cases on it, and a whopping 18 of those appear to be criminal appeals.  This continues a trend we’ve seen recently, where criminal writs are arriving with surprising frequency, pushing some of the civil cases back to later sessions.

 

There’s one other trend that’s clearly discernable:  For at least the fourth session in a row, the court has condensed the docket into four days.  Traditionally, the justices heard something like six appeals per day for Monday through Thursday, then three arguments on Friday morning, giving them the opportunity to return home for the weekend.  Lately, they’ve been knocking off at the close of Thursday, so even Justice Kinser, who lives as far west as downtown Detroit — no, that is not hyperbole — can be home on Saturday morning.  (I don’t know whether this will become a permanent change; I can envision that the court might someday schedule a larger number of cases for a given session, thus requiring five days again.)  This month’s opinion day will accordingly be Thursday, September 16, and you know what I’ll be doing that day and the next.

 

Fourth Circuit rules against Ravens again

The Baltimore Ravens are no doubt eyeing their 2010 NFL schedule nervously, hoping they don’t have to play any games in the Fourth Circuit.  If you substituted the circuit’s judges for the referees in one of their games, you’d find a demoralized franchise.  Today, the court releases Bouchat v. Baltimore Ravens, the latest in a string of appeals involving an intellectual-property claim by a man who essentially designed the team’s logo (including the artwork on the side of the helmets) for its first three years.

 

Bouchat got a jury verdict on his infringement claim, and that was affirmed in 2000.  The team won the next two rounds, in which damages were assessed at zero dollars; but today it loses on a claim that its use of the logo in films (kind of hard to digitally erase the logo from all those helmets, isn’t it?) infringes Bouchat’s rights.

 

The court finds today that the team’s depiction of the logo in photographs in team headquarters is a fair use, because it’s a free display of team history.  But the court finds that using the same logo in promotional films isn’t fair use, so the district court will get to decide whether to enjoin future use of those films.