|How will the Court of Appeals rule?|
It's been a while since I wrote a #lawdog article, and an equally long while since we've talked about the Bobby Davis & Mike Lang lawsuit against Jim Boeheim and Syracuse University. The last update was when the Fourth Department of the Appellate Division affirmed the trial court's ruling dismissing the defamation suit we're all too familiar with at this point. However, as you may recall, that was not a unanimous decision. The dissent in that case left the door open for New York's highest court -- the Court of Appeals -- to hear the case. And it did just that on September 9, considering oral arguments between Davis/Lang's lawyer and Boeheim's lawyer.
If you don't know how this works, here's a quick primer: the lawyers from each side must submit what are called briefs to the Court. They're not underwear, nor are they short, so I really don't know why they're called briefs. Nevertheless, these briefs lay out the legal arguments supporting the argument(s) that side is putting forth, along with citations to the case record (filings, motions, evidence, testimony, etc. that was submitting in prior proceedings in the case). The appeals judges review the briefs from each side (OK, more likely their law clerks do that) and thus familiarize themselves with the facts of the case, and the legal issues being argued. This is all done in preparation for oral arguments.
Oral arguments is an opportunity for the attorneys to highlight the main points of their arguments to the justices, but more importantly, for the justices to poke and prod at the attorneys. The justices will often times interrupt the attorneys mid-sentence, or even the other justices, to either point out a flaw in an argument or to play devil's advocate. This is really when an attorney's ability to maintain poise and think quickly on his/her feet become vital. A bad performance during oral arguments likely won't torpedo one's case, but let's face it, it doesn't help.
So, on September 9, the attorneys in this case went to Albany and argued their case before the Court of Appeals. Led by Chief Judge Jonathan Lippman (pictured above), the Court tried determining whether Boeheim's statements were clearly opinion, or mixed fact and opinion. Another point of focus was what a reasonable reader/listener would believe based on all the context.
You can read the transcript of the entire proceeding here. If you would rather listen, you can download a video recording here. I suppose you can listen and follow along in the transcript, too. It's fun how the Chief Judge knows all about Jerry Sandusky, and has no trouble saying his name, but Jim Boeheim is somehow Bonheim.
Sometimes you can get a pretty good idea of which way the Court's leaning simply based on the targets of questioning during oral arguments. I'm no expert by any stretch of the imagination, but I couldn't get a good read on this Court either way. So, we'll just have to wait until they deliver their decision, which could come within a few weeks or a few months. Just remember, even if the David/Lang camp win this appeal, it doesn't mean they win the defamation suit. It just means that it was improper for the trial judge to dismiss the suit, and instead it would be reinstated and could ultimately go to trial before a jury. So, maybe we haven't heard the last of this case...