This thread is being sidetracked by 2 lawyers arguing with each other – yet nobody is paying them to argue! How can that happen???
That’s a shame. There are few absolutes in law but this is one: appellate courts do not make factual determinations.
The reason is quite simple. They are not so equipped. There are however instances where the AC will find that additional proceedings are required and in some cases those proceedings will involve new evidence or otherwise modifying the existing record.
In such a case (as well as others) the AC will order the case remanded to the lower court (LC) with appropriate instructions. However the required findings of fact will ALWAYS be conducted by the LC and NEVER the AC.
Once the proceedings have completed, the remanded case may or may not be returned to the AC depending upon the nature of the remand and whether of not the proceedings were brought to a successful conclusion.
Before you blow your mouth off any further you might like to consider that the world is a big place. IIRC **AK84 **has practiced in the UK, and the highest profile libel case (maybe the only libel case) Lance Armstrong won was in the UK.
“Never” and “absolutes” are very big words to throw around on a messageboard that considers issues (and has members) that transcend the US.
But cases occur all the time where new evidence is brought forward, long after the fact. Usually these are criminal cases, and the issue is the death penalty or a wrongful conviction, and it is not so much an ongoing appeal as a request for a new trial - but the mechanism is there.
The problem that “now everyone seems convinced that he did it” is not the same as real, factual evidence contradicting the specific finding of the court - “between X and Y, person Z was not a habitual performance-enhancing drug user.” And- the evidence has to be strong enough to re-open the case.
there’s a NYTimes blog on the specific topic - is Armstrong’s money safe? One lawyer says it is, that once an item is settled in the courts you can’t claim sour grapes and try to re-open the case, while another (for the insurance company that paid the prize bonus after a lawsuit over drugs) says they are going to litigate anyway. So like the two above, a pair of lawyers in the article disagree.
the article says they might use the opportunity to litigate to depose Armstrong, with the opportunity to help nail him on perjury charges.
Also mentions the USPO pay to Lance, and says - “if they try to sue for the millions they paid to support the team, then the net benefit in revenue they gained from that, in publicity, is several times the original payout”. So nobody sues over returns of 300%, because you can’t show a loss.
As for sponsors like Nike, most don’t want to blow up the negative publicity, they just want it to go away. One energy drink company was mentioned, but as the article pointed out - they had gone from almost nothing to a well-established company based on the sponsorship, so where’s the damage; even if sales drop by half, they are 100 times ahead of where they were before the latest problems.
So the other problem is - you have to demonstrate a loss.