When The Am Law Litigation Daily awarded Jenner & Block's Susan Kohlmann Litigator of the Week last year for a win on behalf of John Steinbeck's stepdaughter in a long-running family feud over book rights, it was with a caveat: This was unlikely to mark the end of the battle.

Sure enough, the family members on the losing side have appealed the $13.5 million jury verdict to the U.S. Court of Appeals for the Ninth Circuit.

The nitty-gritty of their copyright dispute is agonizingly long and complex. Steinbeck, who died almost exactly 50 years ago—on December 20, 1968—split his estate between his third wife, Elaine, and his two sons from his second marriage, Thom and John IV.

Who got what percent of royalties from which works has been in dispute almost ever since. The wife and both sons are now dead, but the fight lives on between Steinbeck's daughter-in-law Gail Steinbeck and his step-daughter Waverly Scott Kaffaga.

There's more at stake than selling paperback copies of “The Grapes of Wrath” or “Of Mice and Men” to high school sophomores. Universal Studios was interested in producing “East of Eden”—which at one point was set to star Jennifer Lawrence—and DreamWorks wants to remake “Grapes of Wrath,” perhaps to be directed by Steven Spielberg, possibly starring Daniel Day-Lewis.

The step-daughter, Kaffaga, said Gail and Thom mucked up negotiations with the film studios by improperly trying to get a cut of the fees, causing Universal to pull the plug on “East of Eden.”

In 2016, U.S. District Judge Terry Hatter agreed, granting summary judgment for breach of contract and slander of title. In 2017, a federal jury in Los Angeles awarded Kaffaga $7.9 million for punitive damages and $5 million in compensatory damages.

Many of the specific questions on appeal—Were termination rights transferred? Was a prior agreement between the parties an “agreement to the contrary”? Should film rights be considered “recaptured rights”?—only a copyright lawyer could love.

Still, a few things stand out about the appeal.

One is Gail Steinbeck's choice of counsel: Matthew J. Dowd of Dowd Scheffel in Washington, D.C.

In addition to his private practice, Dowd is the regional director of retired Seventh Circuit Judge Richard Posner's new Posner Center of Justice for Pro Se's. Which makes the first sentence of his Ninth Circuit brief for Gail Steinbeck fitting: “This case involves a copyright dispute with a tortuous history, including a messy record due in part to sincere pro se filings.”

Dowd's 86-page filing doesn't actually make much of the pro se angle, though it mentions, for example, that “Gail's pro se opposition to the summary judgment was not the gold-standard in advocacy.” (Which is a tactful way to put it.)

Considering that summary judgment is central to what's now being litigated, it was a bad time to be without representation. Gail did however have counsel at trial—the Matthew I. Berger Law Group.

Moreover, Thom was without counsel when he was deposed. At the time, he was in poor health and on oxygen. He died in 2016.

Dowd also forcefully argues that the $7.9 million award for punitive damages should be vacated.

“California law authorizes punitive damages in noncontract cases 'where the defendant has been guilty of oppression, fraud, or malice, express or implied,'” he notes, “which must be proven with clear and convincing evidence.”

Here, he argued that his clients genuinely believed that they did have rights and control over at least some of Steinbeck's work.

Gail did not act with ill will, he argued. “While possibly mistaken, and at times apparently angry, she did not intend to harm the estate or the Steinbeck works. Her goal was to vindicate her legal rights (or her belief in those rights) and maximize the value of the works,” Dowd wrote. “Gail would have no reason to sabotage any deal because she stood to benefit from them. She was simply trying to ensure the best outcome for Steinbeck's legacy.”

Plus she can't afford to pay $7.9 million. Not even close.

For one thing, she “has been without a permanent residence because her rental home, including her personal and business belongings, were severely damaged or destroyed in the Montecito mudslide. She has not had a permanent place to stay, largely due to the adverse judgment in this case.”

She gets between $120,000 and $200,000 a year in royalties from Steinbeck's work. Which is not bad, but she's also footing the bill for kids in college.

“Needless to say, to satisfy the judgment of $13 million would require decades of royalty payments,” Dowd wrote. “To pay the $7.9 million punitive award would take Gail at least 65 years, assuming an annual gross income of $120,000 from the Steinbeck royalties and assuming every penny of that went to satisfy the punitive damages debt.”

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