Procedural law breaks hearts. The facts are the facts. You can spin - not change - them. Even the substantive law isn't especially malleable. If you lose on the facts or substantive law, why can you do? Curse the law, sure. There is no need for tears or guilt. Procedural law is different.
If you make a procedural error, it doesn't matter if the facts or substantive law are on your side. You can't go to court. Procedural errors haunt. Norwood v. Vance will give many ghosts.
In Norwood v. Vance (here), a prisoner-litigant in a Section 1983 case won at trial.
The issue was to what extent a prisoner had the right to outdoor exercise. Norwood, like every other prisoner, was not allowed outdoor exercise for over two years. It wasn't because Norwood had done anything wrong. Norwood was subject to group punishment for other prisoners' misconduct.
At trial, the trial court gave a jury instruction that allegedly misstated a point of law, namely, whether prison officials were deliberately indifferent to Norwood's right to outdoor exercise.
The defendants did not argue in a post-trial motion that they were entitled to qualified immunity. The qualified immunity issue should have been waived on appeal.
A 2-1 panel of the Ninth Circuit reversed the judgement, holding that the trial court's deliberate indifference jury instruction was erroenous. Since the defendant did not raise the issue of qualified immunity is a post-trial motion or on appeal, the case should have been remanded for a new trial.
However, the panel did reach the qualified immunity issue.
Although the defendant did not preserve its qualified immunity argument: It raised the issue on appeal. The plaintiff did not argue waiver. Judge Alex Kozinski, writing for the split panel, said that the plaintiff "waived waiver." The panel then held that the prison officials were entitled to qualified immunity.
Rather than re-trying the case with a new jury instruction, the plaintiff lost his case entirely. All due to a misunderstanding of procedural law. How could this have happened?
Waiver is not a quirky area of law. If a party doesn't raise an issue in a post-trial motion, the defendant has waived it. Simple - though not easy - stuff.
In the Ninth Circuit, the slip opinions indicate who briefed the appeal:
Carter White, Supervising Attorney, and [omitted - Mike], Certified Law Student, U.C. Davis School of Law, King Hall Civil Rights Clinic, Davis, California, for the plaintiff-appellee.
A law student argued the case and wrote the briefs. As part of a love fest, the Ninth Circuit held court at the U.C. Davis School of Law. A law student got to be a lawyer. In theory, this is unobjectionable.
A smart law student - if properly supervised - can put together an impressive brief. The student's supervisor needs to state what the issues are; give an overview of the law; and let the student write.
Law students, though, don't know anything. They need to be supervised. You can't just hand a transcript or motion over to a student.
This law student clearly was not supervised. An appellate lawyer would have said, "Didn't they waive the right to argue qualified immunity on appeal?"
I didn't identify the law student by name, since you can't expect law students to understand the importance of procedural issues. Google shouldn't follow her for making a rookie error. Her law professor screwed up big time, though.
Norwood v. Vance is thus a reminder to pay attention to procedureal issues. It's also a reminder that a lawyer has an affirmative duty to supervise subordinates.
The plaintiff got screwed because a law professor didn't do his job. The plaintiff in Norwood should have received a new trial. He won't. For not fault of his own, the client's case is dead.
