Announcements

1. Announcements • Beginning Friday at 12:00 p.m., you and your moot court partner may sign up as Appellees or Appellants. • The sign-up sheet will be posted on my office door. • Your Standard of Review assignment, which we will discuss later in class, is due in class Monday, Feb. 2 • Class on Monday will be at 3:00 in Room 273 (per the FBI’s request)

2. Court Watching Requirement at Drug Court • Drug Court is held every Wednesday at 4 p.m. • City Jail Courtroom - 1600 26th Street. • Call the Docket Clerk, Michelle Williams at 759-2137 if you would like to attend. • Be there by 3:00 p.m. for the explanation.

3. Marino v. Rice Motions/Procedural Time Line

4. The Standard of Review De NovoClearly ErroneousAbuse of DiscretionSubstantial Evidence

5. Remember, during a trial • The Jury determines issues of facts by listening to the evidence such as the testimony of witnesses. • The Judge determines issues of law. Since the appellate judges were not present at trial, they are more likely to substitute their judgment on matters of law but less likely to on findings of fact.

6. Standard of Review • An appellate court rarely has unfettered discretion to make decisions. • The appellate court is usually bound by a certain “standard of review” to decide the case before it. • The standard of review differs depending on what type of issue is being raised before the court.

7. Standard of Review • Except for de novo, the standard of review gives deference to the • winner at the trial level or the appellee. This is why so few appeals are successful. • The petitioner/appellant has the burden of showing that there was error below, and thus has the responsibility to advise the court of the appropriate standard of review. • Moreover, the appellant and the appellee may take a different view about what type of review the court is empowered to apply.

8. Standard of Review • Case law, state rules and statutes address appropriate standards for various issues. • The best way to find the appropriate standard of review is to research your legal issue generally. • Recent cases in your jurisdiction that are on point legally and factually may also give you the appropriate standard of review.

9. Appeal De Novo (No Deference) • (Means appeal from the beginning) When questions of law come to the appellate court, it may exercise independent judgment in the reviewing the case and is free to disagree with the trial court. • For example, a trial judge’s decision about summary judgment or the granting or denying of other dispositive motions is reviewed de novo.

10. Clearly Erroneous (Substantial Deference) • The appellate court will not disturb findings of fact unless such findings of the trial court are clearly erroneous. • The trial judge was at the trial and was able to observe the demeanor of witnesses. The appellate court will defer to the trial court unless the weight of the evidence shows that the judge’s decision is clearly erroneous. As long as the fact findings are plausible, they will not be set aside.

11. Abuse of Discretion(Extreme Deference) • On matters entrusted to his or her discretion, a trial judge has considerable latitude to decide the question. • The appellate court should find that a trial judge abused his or her discretion if it is firmly convinced that the trial judge acted arbitrarily or committed a clear error of judgment.

12. Substantial Evidence (Extreme Deference) • A JURY VERDICT must stand unless the appellant can show that there is no substantial evidence to support it, considering the evidence in a light most favorable to the verdict with all reasonable inferences deducible from evidence drawn in support of the verdict.

13. Mixed Questions of Law and Fact • The standard of review for mixed questions of law and fact varies depending upon whether the question is more factual or more a matter of law. • The appellate court usually must accept trial court’s findings of fact unless clearly erroneous but determination of whether those facts satisfy a legal test is reviewed de novo.

14. Standard of Review • What are the issues that serve the basis for your search for the standard of review in this case? • How do you find the appropriate standard of review for the issues presented by the notice of appeal in your problem? • What kind of cases should you use for the standard of review?

15. Research Path • How might you go about researching the two issues for your appellate brief?

16. Research Path • For the Motion to Dismiss • Look up 28 U.S.C. § 1332 cases in your circuit. • What key words might you use to limit this research via the digests or legal databases? • Remember key number searches. Use computer databases to cross check or sheppardize

17. Research Path • For the Motion Granting Summary Judgment • Look up 720 Ill. Comp. Stat. 5/12-7.1. • Look at the annotations; sheppardize those cases. Read the digests using helpful search terms to validate and look for other cases. Use a computer database using those search terms.

18. Research Path • Remember For the Illinois hate crime issue, you need not limit your research. • However, for the subject matter jurisdiction issue, you should limit your research to the Seventh Circuit. The only United States Supreme Court cases you need will be cited therein. You may limit your research of district court cases in the Seventh Circuit to cases after 1995.

19. Assignment • For next Monday, February 2, as you research the problem, look for the standard of review for a denial a Motion to Dismiss for Lack of Subject Matter Jurisdiction. • Also look for the standard of review for determining, upon appeal, the grant of a Motion for Summary Judgment. • Citations for the standard of review of both issues on appeal should be from authoritative sources (Cases in your circuit).