This is a reminder that Legal Insurrection will have live coverage of and commentary on the Gibson’s Bakery v. Oberlin College appeals court oral argument. The Court livestreams oral arguments and we will have the embed here with commentary. Join us.
Here is the panel of judges for the case according to the court calendar.
PREVIOUSLY
It’s been a long time coming. We have followed the Gibson’s Bakery case against Oberlin College since before it was a case: through the pre-trial court proceedings, the trial, the compensatory and punitive verdicts, the post-trial motions, the appellate bond issue, the tragic death of David Gibson, the college’s post-trial public relations campaign targeting the Gibsons, and then the two appeals (along with the sideshow of Cleveland media groups aligned with the college trying to unseal private Facebook records of the bakery store clerk).
Why “two appeals”? The first appeal is the college (and Dean of Students Meredith Raimondo) trying to reverse the jury verdicts. The second appeal is the Gibsons trying to restore the full $33 million punitive damage verdict, which had been reduced by half under (Republican-initiated) Ohio tort reform.
At long last, oral argument has been scheduled for November 10, at 10 a.m. The Ohio Ninth District Court of Appeals YouTube Channel will livestream the oral argument, and we will carry it live here.
For those of you who want to read up on the appeal, here are the key briefs:
Oberlin College Appeal From Jury Verdicts
Gibson’s Bakery v. Oberlin College – Appeal – Appellants’ Brief
Gibson’s Bakery v. Oberlin College – Appeal – Gibsons Brief Opposing Appeal
There also were multiple ‘Amicus’ briefs filed by entities supporting Oberlin College, and the Gibsons’ responses.
Gibson’s Bakery Appeal To Restore Full Punitive Damages Verdict
Gibson’s Bakery v. Oberlin College – Appeal – Gibson’s Cross-Appeal Brief
Gibson’s Bakery v. Oberlin College – Appeal – Defendants Cross-Appeal Brief
So what to make of the appeal by the college?
It strikes me that the college attempted to throw everything including the kitchen sink at the appeals court in the hope that the mere multitude of issues raised would lead to the view that this was a fundamentally unfair trial with numerous reversible errors. Anyone who actually followed the trial knows this is the opposite of reality, the trial judge was extremely cautious, only allowing a small number of the Gibsons’ claims even to get to trial.
The challenge at oral argument for the Gibsons is to unwind the chaos of the college’s brief, and to focus the court on the lack of any substantial identifiable reversible error, particularly error that was preserved for appeal.
In any seven-week trial, there will be minor evidentiary decisions that may be in error, but did they substantially affect the verdict? If minor error were enough to reverse, no lengthy trial could withstand appeal.
Here, the college has not clearly identified such trial court errors. Part of the error asserted simply is a mischaraterization asserting that the college was held liable for student speech — that plainly is false, yet is a theme the college (and its amici) repeat with reckless abandon. Other asserted errors are things consented to or demanded by the college — such as the bifurcated trial which resulted in separate considerations of ‘actual malice’ at the compensatory and punitive stages. Other items, detailed in the briefs, are items never preserved for appeal because of lack of evidentiary proffer at trial, such as admissible evidence of prior incidents of racial profiling by the Gibsons — someone feeling uncomfortable at the bakery is not evidence.
The lack of a clearly identifiable substantial reversible error is the defect in the college’s appeal. It’s up to the Gibsons’ counsel to cut through the chaos of the college’s appeal and focus the appeals court on the things that matter to appeals courts when considering whether to reverse a lengthy jury trial.
So mark your calendars, November 10, 10 a.m. Maybe we’ll have a “watch party” or something similar. That’s to be determined.
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