Over the past year creators’ copyright crusader Marc Toberoff took some serious hits in the various Superman and Kirby lawsuits. Yet there was also a deceptively routine procedural matter that could have already assured him a victory in the Siegel estate’s Superman appeal.As we’ve seen multiple times over the past decade, judges can be as important as precedents and statutes. Give Bill Clinton one more Supreme Court appointment and George W. Bush would not have been president. Replace Chief Justice Roberts with a more hard-line conservative and Obamacare would be dead.
The same goes for lower courts, from local township judges to federal circuit courts of appeal. An experienced litigator will pay just as much attention to the who is making the decision as the letter of the law.
At the federal appellate level, the composition of the three judge panel deciding your case is typically a matter of chance. Court administrators pick judges at random to serve on panels at scheduled court dates, and as oral arguments draw near a panel gets assigned to particular cases. In some instances, though, a returning case may go to a panel that previously heard it, and a newer appeal could be consolidated with a related case already in progress.
Along with the judges you also might want to factor in whoever is clerking for them at particular time. Clerks are recent graduates who assist the judges in preparing cases and in some instances help draft opinions. For instance, if the case had been around somewhat earlier, there might have been an aspiring corporate counsel or even someone quite familiar with the case, such as, well, me.
The Siegel Appellate Panel
If you’re Toberoff, the panel draw in the Siegel case is rather encouraging.
- Judge Stephen Reinhardt is a stalwart liberal whom one might expect to be sympathetic with a downtrodden creator’s family battling a multinational corporation–hence DC’s doubling down on the Siegel family’s gains under the earlier settlement terms and the portrayal of Toberoff as a corporate carpetbagger in disguise.
- Judge Sidney Thomas — a moderate-to-liberal jurist on President Obama’s shortlist for the Supreme Court – also has a strong reputation for being compassionate toward the powerless. Equally interesting, he wrote the opinion in the Ninth Circuit’s controversial 2005 Grokster ruling, which found in favor of file-sharing against corporate IP interests. (That ruling was subsequently overturned by the Supreme Court.)
- Judge John Sedwick is a Bush I appointee with some intriguing moderate decisions. There are also indications that he might be reluctant to shut down the Siegel case without a trial solely on the filings as to the heirs’ alleged agreement with an earlier term sheet–though that could equally work against the Siegels, given DC’s request for a trial on the settlement question.
Because the same panel is hearing the appeal of anti-Slapp portion of the Pacific Pictures case, one also has to consider the likelihood of an outcome favorable to Toberoff in that appeal as well. In fact, the evident sensibility of the Reinhardt/Thomas/Sedwick panel seems to have triggered the spider-sense of DC’s attorneys, who tried without success to get the case transferred to the more conservative panel that issued a sharp ruling against Toberoff in a different aspect of the Pacific Pictures dispute.
Of course, even with their particular personal inclinations the judges now considering these cases could end up ruling for DC–as I’ve noted in my posts pretty much from the outset, a savvy lawyer or judge could find substantial grounds for reaching a far different decision than the landmark 2008 Siegel victory, which arguably relied on some rather creative judicial reasoning.
The upshot of all this? Whatever one’s sense of the law and fundamental principles at stake in the Siegel case, the outcome is not simply a rote function of applying clear law to clear facts. Legal ambiguities, procedural technicalities, ethical strictures, judicial perspectives–these are just a few of the key factors that could shape what happens next.