Primer on Law and Fact

1. Primer on Law and Fact

2. Important for Trial and Appellate • Trial courts are ultimate fact-finder • Knowing when to grant MSJ’s and Motions to Dismiss • Standards of Review for Appellate Court

3. Fact • A fact is something that happened • It can be observed or documented • A police officer extended the leash of drug-sniffing dog • An inch of ice covered the sidewalk • Plaintiff left house three times in July

4. Inference • “Second-level” fact – not absolute, but facts may support the conclusion • the officer accidentally discovered the marijuana plants • Defendant knew the sidewalk in front of her house was slippery • Plaintiff was worried about his child’s safety when he left the household.

5. Finding of Fact • Litigants present testimony and documents • Fact-finder wades through the evidence, judges credibility of witnesses, and may accept all, none, or some of the evidence • Conclusions from this deliberative process are the official findings of fact

6. How do we know Findings of Fact • Verdict Form for Jury • If Judge is fact-finder, findings might be stated orally for record or in document • Important to document these fact findings for appellate review • How might clerk help with this process?

7. Law • Trial Judge is solely responsible for deciding the law that governs the case. • Law is general and applies to more than one set of facts. • Questions of the governing law arise before, during, and after trials. • Substantive law (tort, criminal, etc.); Procedural law; or evidentiary law.

8. Conclusions of Law • Application of governing law to the found facts and inferences • Defendant was negligent • Plaintiff breached the contract • Counsel provided ineffective assistance of counsel

9. Exercise • Frank and David were roommates at college. During a fight, Frank slugged David in the face, causing injury. David sued Frank and the College in negligence, and the case went to trial. Define whether the following statements are facts, inferences, law, or conclusions of law.

10. Fact, Inference, Law, Conclusion of Law???? 1. Frank hit David’s face. 2. Ordinarily, a person has no duty to protect another person from a third person. 3. The college disciplined Frank three weeks before his fight with David because Frank initiated a food fight in a campus cafeteria. 4. The college did not cause Frank’s injuries. 5. The college knew that Frank could become violent. 6. The college was not negligent.

11. Summary Judgment • Granted if _________________? • What rule is this? • What does this mean in laymen’s terms?

12. Examples A woman dies leaving a will that gives one third of her estate to her son and two-thirds to her daughter. The son files suit, claiming the will is invalid. He claims his mother suffered from dementia and was not competent when she signed the will. He submits medical records, documenting a neurosurgeon’s treatment of his mother in the months prior to her signing the will. The daughter disputes this claim of incompetence and submits to the court a letter written by the mother, explaining the unequal distribution. The governing statute provides that any adult of sound mind and memory may create a will. The son moves for summary judgment that the will is invalid. Is he entitled to summary judgment?

13. Same hypothetical as above, but now imagine that the daughter moves for summary judgment, claiming that the governing law is the state where the mother’s property lies, rather than the state where the mother executed her will. Is she entitled to summary judgment on this issue?

14. A homeowner finds a dead black bear in his backyard. He claims ownership of the bear, but the local department of resources confiscates it and issues a citation against the homeowner for illegal possession of a wild animal. The governing law defines wild animals as “all living creatures, not human, wild by nature, endowed with sensation and power of voluntary motion.” The homeowner moves for summary judgment that he did not violate the statute. Is summary judgment appropriate?

15. Standards of Review How wrong is too wrong?

16. How wrong is too wrong? • A judgment or verdict is not overturned simply upon demonstration of an error. • “A defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953).

17. How wrong is too wrong? • The question, then, becomes “How wrong must it be?” • It depends.

18. Standard of Review • You must always know what type of question you are appealing, and who the original decision maker was. • Standard of review will color your entire appeal. • One of the first things the appellate court wants to know – how is it to review decision of trial court.

19. Standards of Review • An appeal is different than the original proceeding. You are not asking the court to engage in a replay or a “do over” of the whole case. • For the most part, factual determinations are given some deference, meaning that they are presumptively correct unless proven otherwise.

20. Standards of Review • Just how much leeway a lower tribunal gets is governed by the “standard of review.” It is the measure of how much deference an appellate body will give to the decision.

21. Multiple Standards? • A single appeal might involve multiple points of supposed error, each of which might be controlled by a different standard of review. • Make sure to consider each separate ruling or finding for possible error under its own distinct standard of review.

22. Standards must be researched • There are many different standards of review which are used in many different contexts. Standards range from low ones such as “de novo” to very high ones such as “abuse of discretion.” • In addition, the actual meaning of a standard might mean slightly different things in different contexts and when used by different courts.

23. What controls the standard? • What was the decision about? • Fact or law? • Who made the decision? • Judge or jury? • Was the decision one which was placed within the lower court’s discretion?

24. Questions of Fact • A question of fact is a question which can be answered by everyone in the courtroom regardless of whether they attended law school. • A typical case involves lots of basic, run-of-the-mill facts. These are historical or narrative in nature.

25. Examples of Fact Questions • Was the light red or green when the car entered the intersection? • Was water on the floor when the shopper entered or was it introduced later? • Did the car’s odometer record the true mileage of the used car when it was sold? • Was the doctor aware that his patient had an allergy to certain medicines?

26. Jury v. Judge • You cannot identify fact questions based simply on who made the decision! • Only a judge may decide matters of law. • A jury only decides matters of fact; it never decides matters of law. • However, a judge can be the fact-finder in some situations (non-jury trials, pre-trial motions).

27. Fact-based errors • On the spectrum of standards of review, those involving findings of fact are the hardest to overcome. Why?

28. Fact-based errors • Juries and trial judges get the chance to see the witnesses testify. They therefore have a better opportunity to judge the witnesses’ credibility and trustworthiness. • An appellate court is in a far worse position to decide whether to believe certain testimony. (The appellate judges were not at the trial.) • Re-weighing the evidence is a waste of judicial resources. • Having to make the same argument to two different courts and producing two potentially different outcomes is unfair.

29. What is the standard? • A jury’sfinding is almost never upset. • “We will not overturn the jury's finding if substantial evidence exists to support it.” Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1389 (4th Cir. 1995).

30. What is the standard? • We will not . . . disturb a jury verdict “unless, without weighing the evidence or assessing witness credibility, we conclude that reasonable people could have returned a verdict” only for the moving party. Cooper v. Dyke, 814 F.2d 941, 944 (4th Cir. 1987). In reviewing a jury verdict, we view the evidence, and all reasonable inferences there-from, in the light most favorable to the prevailing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). • Randall v. Prince George's County, 302 F.3d 188, 192 (4th Cir. 2002).

31. What is the standard? • Even where a judge determines the fact, the standard is difficult to overcome. • Findings of fact by a judge shall not be set aside “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Fed. R. Civ. P. 52(a).

32. Clearly erroneous • A finding is “clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364 (1948).

33. Questions of Law • A matter of law is one which you need to have gone to law school to properly answer. • Conclusions of law reached by lower courts are rarely given any deference by higher courts because the higher courts are in a better position to decide what the law is.

34. Examples • What are the elements that the plaintiff has to prove to win her case? • Is a police officer authorized to prosecute a traffic case against a driver even if the officer does not have a law license? • Who is authorized to accept the service of a summons and complaint for a corporation in South Carolina?

35. What is the standard? • Higher courts get to decide matters of law. Appellate courts independently review conclusions of law and freely reverse legal errors. • Review of law is called "de novo." This means that there is no deference, not that a full rehearing is required.

36. Example • Joe says that the light was red when Jane entered the intersection. Two witnesses agree. Jane says the light was green, but she is colorblind and had just had her eyes dilated. All give depositions and stating their respective positions. • Prior to trial, Joe moves for summary judgment on the issue of negligence.

37. Original standard: • In the trial court, the standard is whether Joe is entitled to judgment as a matter of law and whether there are any disputed issues of material fact. If there are no issues of fact to answer and if Joe is entitled to a judgment based on the uncontroverted facts, then summary judgment is appropriate. • Note: The court is not being asked to resolve disputed questions of fact. Rather, it is being asked if any questions of fact exist which would bear on the outcome of the case.

38. Original standard: • Our example: The judge concludes as a matter of law that whoever enters an intersection against the light is at fault. The court also concludes that there are no disputed facts which would bear on the outcome (since Jane’s testimony is not credible). • Thus, since Joe is certainly entitled to a judgment if Jane entered the intersection against the light, the court enters summary judgment in favor of Joe. Jane appeals.

39. Appellate standard: • On appeal, the standard is de novo. The appellate court is not free to weigh the testimony and decide which side it believes. • It must decide if summary judgment was appropriate using the same standard that applied in the lower court.

40. Appellate standard: • Our example: The court of appeals would have to decide whether there was a genuine issue of material fact and whether one party was entitled to judgment as a matter of law. • The existence of a genuine issue of material fact is a conclusion of law.

41. One exception • One area where conclusions of law are not reviewed entirely de novo is in the area of administrative law. • Executive agencies are presumed to know more about their area of expertise than everyone else, including the courts. Thus, their interpretation of law in these areas is reviewed under a highly deferential standard.

42. Chevron deference • The United States Supreme Court has held that agency interpretation of law within their area of expertise is reviewed to determine if it is “arbitrary, capricious, or manifestly contrary to the statute.” • Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

43. Mixed questions • Often the outcome of an issue is not entirely factual and is not entirely legal. These are called mixed questions of fact and law or – more commonly – just “mixed questions.” • The constitutionality of a search intertwines facts and the legal significance of those facts. • So which standard to you use on appeal?

44. Mixed question • Typically, a de novo standard applies to mixed questions, but not always. When there is a mixed question, the court might apply either standard, and you have to research the context to know which to apply (if not both).

45. Confused? • Courts have wrestled with this for years, so don’t feel badly. • CompareIn re J.A. Jones, Inc., 492 F.3d 242, 249 (4th Cir. 2007) (in a bankruptcy appeal, “[m]ixed questions of law and fact are also reviewed de novo”) (citation omitted), withU.S. Dept. of Health & Human Servs. v. Smitley, 347 F.3d 109, 116 (4th Cir. 2003) (“We review mixed questions of law and fact ‘under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts.’ ”).

46. Discretionary decisions • Just like facts found by a jury, an exercise of discretion by the lower court is very hard to find “too wrong.” • Except where the decision concerns findings of fact or conclusions of law on the merits of the case, every decision in a case (both before and during trial) is made at the judge’s discretion.

47. Discretionary decisions • Discretion – . . . judicial discretion. The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. — Also termed legal discretion. • Black’s Law Dictionary (8th ed. 2004).

48. Discretionary decisions • Discretionary questions are usually those pertaining to the orderly administration of the courts and matters of procedure. • Granting/denying continuances of trial • What time to start trial • How long the attorneys receive for closing arguments • Whether to call witnesses out of order

49. Abuse of Discretion • In reviewing discretionary decisions, the appellate court will determine whether that discretion has been abused.

50. Abuse of Discretion • Discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable people could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.