Tag Archives: appellate

Five Worst Decisions, Part 3

Read Part 2 – Five Worst DecisionsLast time I discussed the fourth worst decision in the history of the Connecticut Supreme Court, Cole v. Steinlauf, 144 Conn. 629 (1957). Today I will discuss the third worst decision, Buxton v. Ullman, 147 Conn. 48 (1959).

Buxton is the most infamous of the four infamous contraceptive decisions between 1940 and 1964, holding that a statute preventing use of drugs or instruments to prevent contraception, even among spouses, and even if the woman’s health is at risk, was constitutional. Buxton was the most extreme of the four cases because one of the women claimed that in her previous pregnancy she had “developed a condition which brought her to the very brink of death.” 147 Conn. at 52.

The decision blandly responded:

 

It may well be that the use of contraceptives is indicated as the best and safest preventive measure which medical science can offer these plaintiffs. That fact does not make it absolutely necessary for the legislature to accept such a solution in all cases, where there is, as pointed out in the Tileston case (p. 92), another alternative, abstinence from sexual intercourse.

Id. at 58.

While Buxton was unanimous, the 1942 Tileston case was a 3-2 decision, with the dissent making the obviously proper response:

 

Even if it be conceded that such a course of conduct is reasonably practicable, taking into consideration the propensities of human nature, the resort to such a practice would frustrate a fundamental of the marriage state. The alternative suggested in the argument of the state against permitting qualified physicians to give proper medical advice upon this subject would tend in many cases to cause unhappiness and discontent between parties lawfully married, would stimulate unlawful intercourse, promote prostitution, and increase divorce.

Tileston v. Ullman, 129 Conn. 84, 102-03 (1942) (Avery, J., dissenting).

The U.S. Supreme Court dismissed an appeal in the Buxton case because it was a declaratory judgment action to prevent criminal prosecution, but there was no evidence that anyone had ever been prosecuted. So an arrest was arranged shortly thereafter, and thus was born the case we all know today, Griswold v. Connecticut, 381 U.S. 479 (1965), reversing State v. Griswold, 151 Conn. 544 (1964).
 
Read Part 1 – Five Worst Decisions
Read Part 2 – Five Worst Decisions

How Appellate Lawyers Can Help Trial Lawyers

By: Wesley W. Horton

Our firm recently won a reversal of an almost $12,000,000 judgment in a sexual abuse case. The case is Doe v. Boy Scouts of America Corp., 323 Conn. 303, and it provides an illustration of how appellate lawyers can help cases while they are still in the trial court.

We were retained to assist the defendant’s trial lawyer in preparing the Boy Scout case for trial and to sit second chair at trial. Our primary role was to make sure that any potential appellate issues were properly raised and preserved before and during the trial. So we filed an appearance and reviewed and addressed all sorts of issues concerning the pleadings, the evidence and the charge to the jury. This left the trial lawyers free to concentrate on the business of trying the case, preparing the witnesses and handling the day-to-day brush fires of a trial.

As it turned out, the charge to the jury was the key to the reversal. Here is what happened. We prepared the requests to charge. While many of the requests were boilerplate, we knew there had been a recent sexual abuse case decided by the Supreme Court, Doe v. Saint Francis Hospital and Medical Center, 309 Conn. 146, that in our opinion established the defendant’s common-law duty in this case. So we spent a great deal of time crafting the relevant requests in the precise language of that case. The plaintiff’s lawyers objected to our requests and the trial court agreed with them. We then duly took exception and away we went on appeal when the jury found for the plaintiff.

The Supreme Court took the appeal away from the Appellate Court and held that, because the requests to charge properly stated the law from the Saint Francis case, a new trial had to be ordered.

In the course of a trial, there are so many issues to address, so many “what about” questions to answer. Understandably, sometimes it’s hard to focus on the day-to-day needs of the trial and on preserving issues in case of an appeal. Having appellate counsel in from the start of trial alleviates those concerns, while also allowing the trial lawyer to focus on the trial and its many nuances.