TVR 312 Government & Media Baywatch's Humiliated Hunk Playgirl's Legal Team

The Federal District Court for the Eastern District of California was clearly on the mark when they granted summary judgment for Playgirl Magazine stating that Solano did not meet his burden of proof in establishing that readers would get a "false impression" of what was inside the magazine after seeing him barechested and in his siginature red "Baywatch" swim trunks.

Unfortunately, and suprisingly, the Ninth Circuit reversed the summary judgment and remanded the case for trial for appropriation and false light invasion of privacy claims. However, not to be daunted you have appealed to the SCOTUS. The SCOTUS agreed to hear the case on its merits and actually assess whether there was appropriation and false light.

As attorneys for Playgirl, you will present a 20 minute oral argument on your client's behalf, drawing on case law, precedent and First Amendment protection in response to the invasion of privacy arguments that Solano is sure to launch.

You have already put a lot of time and money into this case. Playgirl has deep pockets, but a significant defeat in this area will open up the magazine to a succession of lawsuits.

The Federal District Court summary judgment of the case has not been published as far as I can determine. Please let me know if you find it so we can determine if there was an explanation along with the summary judgment in favor of your client.

The 9th Circuit decision is published. And with some good research you can find the cover picture of the January, 1999 issue of Playgirl. You will have to rely on additional research in media sources, law reviews, case precedent to build your arguments. Keep in mind that older cases may have been overturned by more recent cases or cases decided by a higher binding court. So be careful in your research. While this case is almost a decade old, any current cases that support your argument may be used.  Just assume the SCOTUS has agreed to hear this case in 2009.  Document all your sources very carefully.

It is critical that you be prepared and polished in the oral presentation. You have seen one round of oral arguments, so you have a sense of the different methods your team might want to use to make your case.  I strongly recommend you spread the arguments you want to make across several members of your team so they can develop an expertise on specific points and not stumble if asked tough questions.

Each member of your team will have to prepare their own specialized portion of the brief for the case. This should run 2-3 pages minimum and, I recommend, focus on the aspect of the argument where the team member intends to be an expert. Then as a group, on your own time, meet and combine the best elements of your individual work into a group court brief. Determine who among you will present the oral argument.  Another team member can do the rebuttal if desired.  Rehearse. Have members of the team listen to the oral agument, pretend to be members of the Court and interject with questions. It won't reflect well on Playgirl, if you simple read a presentation. This is a speech, in a sense. You may have your notes, but you need to TALK to the justices. When fielding a question by the Justices, you may defer to the relevant "expert" on your team at any time to give an answer.

Each member of the group will fill out a group evaluation form, assessing the level of each person's contribution to to collaborative effort, quality of contribution to the brief, presence at meetings and whether team deadlines were met.

However, each person will be graded individually. The grade will be based on the overall quality of the group's formal brief, individual contribution to the brief, active involvement in the oral argument, evidence of individual preparation for the oral argument, and the feedback from the group about the level of participation. Lack of involvement in the group work, will adversely impact an individual's grade.

The full court brief, along with each of your individual briefs, are due on the date of oral arguments noted in the course schedule. Bring copies of the court brief to distribute to the justices and a copy for the court clerk. Email a copy to me so I can post it on the course website. Group feedback forms are due at the following class.

The total points available for this assignment is 150 points.  These points are split in the following manner with 50 of the 150 points assigned as a group grade:

Grading Rubric for legal team members:

Individual research and subsequent contribution to the team's court brief: 50 points

This grade is assessed in several ways:  The evidence that an individual fully research the portion of the argument assigned, met group assigned deadlines, attended group meetings, contributed in an equitable manner to the group's effort, submitted a well-written, properly formatted and footnoted portion of the team's brief.

Active participation during the oral arguments: 50 points

This portion can be a challenge and needs substantial effort and coordination.  It is expected that team members will answer questions in their area of expertise during the oral argument.  If, such an opportunity does not arise, then it will be important for the individual to provide evidence of active involvement during the oral arguments in other manners, e.g. supplying presenters with notes to assist during the oral arguments, actively helping to strategize the rebuttal, or presenting the rebuttal.  This is one  of those instances where just sitting there, unengaged can cost you 1/3 of the points for the assignment. 

Team's court brief:  50 points

This is a group grade assigned to all members.  The grade will be based on the quality, substance, formatting, footnoting of the team brief. It must follow the format of a case brief.  It must have sufficient footnoting that uses a consistent format.  The arguments must be clear and concise.  There must be appropriate transitional narrative between elements that were contributed by team members. No grammar and spelling errors. The brief must read with a single voice and not appear to be patched together. 

Grading Rubric for the main presenter:

Outline of oral presentation: 50 points

The presenter will turn in the OUTLINE used for the oral argument. Reading the team brief is not acceptable.  The outline must be in outline form, showing the heirachy of the presentation and arguments.  It should note who is the expert to defer to for each sections in case the Court asks questions.  It must be typed.  There may be some last minute notes written in the margins if need be.

Quality of oral presentation: 50 points

The presenter should be polished and professional, talking to the Justices, not reading a presentation.  Presentations should be timed to about 15 minutes as the Court will most certainly interrupt.  The presenter must be ready to skip details, jump around the presentation and prioritize the most inportant elements on the fly as the Court may sidetrack things.  This will require practice and the legal team should schedule a practice session before the day of oral arguments so that the presenter can get feedback.  Understanding the balance between getting through as much of the argument as you can recognizing that the Court is in control can really help the oral presentation be successful.

Team's court brief: 50 points

See details above, but understand that it is the presenter's primary responsibility to compile the pieces into the team's court brief.  Therefore the presenter does not submit an individual contribution, but instead pulls it all together in a narrative that meets the formatting, footnoting, and organizational requirements and that speaks with a single voice.  The presenter might find that he/she writes the introduction and conclusion to the brief as well as some transitional language between the arguments each member contributes.

Contact:Dr. C.
URL- http://www.ithaca.edu/faculty/ncornwell/312/312BaywatchPlaygirl.html
Revised-Sept. 25, 2009