On the one hand, we have plaintiff's factual recitations and arguments on appeal. Which assert that plaintiff was severely sexually harassed and that the trial court should thus have granted a JNOV notwithstanding the jury's finding of no liability. It is, according to plaintiff's counsel, an easy case.
On the other hand, we have the actual evidence at trial, alongside the applicable standard of review. Which together make it crystal clear that the motion for a JNOV was properly denied.
Which Justice Sims amply understands. He's also not very happy with plaintiff's counsel's inability to follow these principles. And tells them so. In spades.
So, for example, check out these quotes, all of which are directed at counsel for the plaintiffs, Stephan Williams and Daniel Bartley:
"[Plaintiff's] statement of facts gives the impression that little else occurred at trial other than her direct examination during her case-in-chief. . . . [W]e shall highlight a few of the most glaring omissions from [her] statement of facts. . . . [Justice Sims then goes on to write ten full pages of devastating comparisons between plaintiff's version of events and the contrary evidence at trial introduced by defendant.] . . . . Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings. . . . [Plaintiff's] opening and reply briefs fall far short of complying with the rules regarding statements and discussions of evidence adduced at trial."
Justice Sims then goes on to describe a litany of other sins of plaintiff's counsel. Arguing things that were waived/forfeited below. Failing to include citations to the record. Misrepresentations of evidence. Stuff like that. Stuff that you definitely don't want directed at you if you ever hope to do credible appellate work again.
Plus there's the discussion of some of the merits. Including plaintiff's novel assertion that once you admit, in connection with a summary judgment motion, that a fact is "undisputed" for the purposes of that motion (e.g., because you're the moving party and have to admit that the other side's evidence raises a certain fact), you all of the sudden have conclusively admitted that fact at trial. Absurd. As Justice Sims rightly holds.
Continuing the "tale of two cities" analogy, so you have this huge number of slams directed at the counsel for the plaintiffs. Then, in two different places, Justice Sims goes out of his way to throw compliments towards the trial judge. Including the final section of the opinion (Section X), which states in its entirety: "We commend the trial judge, the Honorable Brian R. Van Camp, for doing an exemplary job on a case presenting some difficult legal issues."
This, mind you, after Justice Sims (and the panel) had, two years ago, reversed the grant of summary judgment to the defendant by a different judge.
Given this history, Ms. Myers might well have thought that she'd have a sympathetic panel here. Perhaps also that Mr. Williams, who represented her in the prior appeal, would do equally well in the present case.
Not so. Indeed, far from it.
