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Question for the local counsel: how much harder is Kerr's job made by entering only at the appeal stage, as opposed to if he had been representing Auernheimer f

by gruseom 14y ago

Question for the local counsel: how much harder is Kerr's job made by entering only at the appeal stage, as opposed to if he had been representing Auernheimer from the beginning? e.g. are there issues/arguments he won't be able to bring up now that he could have earlier?

Lazare 14y ago
I can give you the general answer to that: At the trial stage, you can argue matters of fact. Stuff like "my client was at home in bed when the events occurred" or "those teeth marks don't evem match his dog!" Since we are now at the appeal stage, barring something huge, all the facts the trial court decided were true have to be assumed true. So he can't now argue that Weev didn't actually access AT&Ts servers. All he can discuss now is whether the court correctly applied the law to the facts it determined at trial, and that means... ...that it won't hamper Kerr at all. The facts here aren't disputed; everyone agrees on what Weev did, how AT&Ts servers were configured, where Weev was, where the servers were, how AT&T responded to the breach. The dispute is entirely down to how the court applied the law (or indeed, whether it was even in the right court), and that's stuff which is best addressed (in some ways, only addressable) at the appeal level. TL;DR: It doesn't make Kerr's job harder at all; in fact he can only do his job at the appeal stage, as his concerns are very much with the trial courts decision, not with the facts the court based that decision on.
- redthrowaway 14y ago
  So if the Appeals court can only decide if the law was applied correctly, does that mean it would have to go to the Supreme Court in order to determine if the law is constitutional?
  - DannyBee 14y ago
    Appeals courts can determine whether a law is constitutional. However, all courts strongly prefer not to if they can.
  - Lazare 14y ago
    No, any court can - in theory - declare a law or its application unconstitutional, but the lower courts are very reluctant to do so, and even appeals courts prefer to only do so in bright line cases. And I don't think this is; even if the court has grave reservations about the law, they'll likely punt and hope the Supreme Court figures it out.
  - mcherm 14y ago
    No, any court can decide if the law is applied correctly or decide that a law is unconstitutional -- in fact, the lowest level of court can overturn any law. They are, however, required to apply the law correctly, including follow precedent set by any courts superior to them. Normally appeals courts only handle the question of whether the lower court applied the law correctly, and assume that the lower court interpreted the facts right. This is because normally (there are a few VERY rare exceptions) it is not legally permitted to appeal on the grounds that the court or the jury got the facts wrong... only on the grounds that the law was applied incorrectly.
- rayiner 14y ago
  My only addition would be that things like what Weev's state of mind was when he did these things are matters of fact that will be assumed true on appeal. So in addition to "he didn't actually access the servers" you also can't argue "he didn't really intend to do this or that."
macchina 14y ago
I don't think it matters because Kerr is just arguing that the district court interpreted and applied the law incorrectly. An appeals court has full power in these areas. It would only be a problem if they wanted to introduce facts or procedural/evidentiary arguments not presented to the trial judge, or if they want to overturn the trial court's decision on procedural/evidentiary/factual matters.
bradleyjg 14y ago
Some arguments have to be made at every level or can be lost (i.e. 'preserved for appeal'). It looks like in this case the issues Kerr wants to appeal have not been lost. In any event the appellate stage is a more natural fit for an academic than the trial stage.
DannyBee 14y ago
Normally, you need to preserve arguments for appeal if they are related to evidence. It's unclear which, if any, arguments have not been preserved. However, at the same time in federal court, appeals courts generally have broad discretion to consider legal arguments not raised below, particularly if they are just about the law, not about some particular piece of evidence. All this said, Kerr is only consulting/helping out AFAIK. He is not the arguing attorney (I hope). He's not really a litigator (he has about 3 years of experience in it, most of it from very early days of his career). I am doubtful that his expertise would have really mattered at the trial stage. You can either convince a judge of something, or you can't.

by gruseom 14y ago

Lazare 14y ago

I can give you the general answer to that: At the trial stage, you can argue matters of fact. Stuff like "my client was at home in bed when the events occurred" or "those teeth marks don't evem match his dog!" Since we are now at the appeal stage, barring something huge, all the facts the trial court decided were true have to be assumed true. So he can't now argue that Weev didn't actually access AT&Ts servers. All he can discuss now is whether the court correctly applied the law to the facts it determined at trial, and that means... ...that it won't hamper Kerr at all. The facts here aren't disputed; everyone agrees on what Weev did, how AT&Ts servers were configured, where Weev was, where the servers were, how AT&T responded to the breach. The dispute is entirely down to how the court applied the law (or indeed, whether it was even in the right court), and that's stuff which is best addressed (in some ways, only addressable) at the appeal level. TL;DR: It doesn't make Kerr's job harder at all; in fact he can only do his job at the appeal stage, as his concerns are very much with the trial courts decision, not with the facts the court based that decision on.

redthrowaway 14y ago
So if the Appeals court can only decide if the law was applied correctly, does that mean it would have to go to the Supreme Court in order to determine if the law is constitutional?
- DannyBee 14y ago
  Appeals courts can determine whether a law is constitutional. However, all courts strongly prefer not to if they can.
- Lazare 14y ago
  No, any court can - in theory - declare a law or its application unconstitutional, but the lower courts are very reluctant to do so, and even appeals courts prefer to only do so in bright line cases. And I don't think this is; even if the court has grave reservations about the law, they'll likely punt and hope the Supreme Court figures it out.
- mcherm 14y ago
  No, any court can decide if the law is applied correctly or decide that a law is unconstitutional -- in fact, the lowest level of court can overturn any law. They are, however, required to apply the law correctly, including follow precedent set by any courts superior to them. Normally appeals courts only handle the question of whether the lower court applied the law correctly, and assume that the lower court interpreted the facts right. This is because normally (there are a few VERY rare exceptions) it is not legally permitted to appeal on the grounds that the court or the jury got the facts wrong... only on the grounds that the law was applied incorrectly.
rayiner 14y ago
My only addition would be that things like what Weev's state of mind was when he did these things are matters of fact that will be assumed true on appeal. So in addition to "he didn't actually access the servers" you also can't argue "he didn't really intend to do this or that."

macchina 14y ago

I don't think it matters because Kerr is just arguing that the district court interpreted and applied the law incorrectly. An appeals court has full power in these areas. It would only be a problem if they wanted to introduce facts or procedural/evidentiary arguments not presented to the trial judge, or if they want to overturn the trial court's decision on procedural/evidentiary/factual matters.

bradleyjg 14y ago

Some arguments have to be made at every level or can be lost (i.e. 'preserved for appeal'). It looks like in this case the issues Kerr wants to appeal have not been lost. In any event the appellate stage is a more natural fit for an academic than the trial stage.

DannyBee 14y ago

Normally, you need to preserve arguments for appeal if they are related to evidence. It's unclear which, if any, arguments have not been preserved. However, at the same time in federal court, appeals courts generally have broad discretion to consider legal arguments not raised below, particularly if they are just about the law, not about some particular piece of evidence. All this said, Kerr is only consulting/helping out AFAIK. He is not the arguing attorney (I hope). He's not really a litigator (he has about 3 years of experience in it, most of it from very early days of his career). I am doubtful that his expertise would have really mattered at the trial stage. You can either convince a judge of something, or you can't.