From the filing:
“The two out-of-the- jurisdiction attorneys, Philip J. Berg of Pennsylvania and Lawrence Joyce of Arizona, were characterized by the lower court as “agents provocateurs” and Philip J. Berg in particular was characterized by the lower court as “probably” the “real plaintiff” in the case. App. 209, 211. They were moved to be admitted pro hac vice but the lower court did not grant that motion. App. 220. They did sign the filings in the lower court. In any case they have now resigned from representing Colonel Hollister and are no longer involved although they, along with “blogging and twittering” on the Internet were the focus of much of the lower court’s opinion dismissing the case.”
Now that the case is in the appeal phase, Berg and Joyce have “resigned from representing Colonel Hollister”.
Appeals law is a very different specialization from trial law practice, in my limited experience. Trial law practice involves influencing the “finding of fact” by the trier of facts (judge or jury) to achieve the desired legal outcome for the plaintiff, often live before the judge or jury.
Appeals law practice involves challenging the “conclusions of law” that were applied to the facts (evidence) by the judge in the lower trial court. My understanding is that the appeals court generally won't or can't reverse the lower court on its findings of fact, but only on its conclusions of law (law applied to the facts).
Appeals are not primarily done live, but in detailed written filings, such as we see here, with limited oral argument usually allowed. You can see that the new appeals lawyer has presented a long list of what he claims are erroneous conclusions of law or disregard of the law by the trial court.
My understanding is that a federal appeal goes first to a three judge panel, hopefully with a majority that doesn't regard blogging and twittering to be sufficient legal fact-checking of claims to presidential eligibility. Then a losing party can request an "en banque" hearing by the full circuit court panel, then on to SCOTUS.
Any lawyer is invited to fine tune or refute my comments, please!
What seems most interesting is, in the Statement of the Case, where Hemenway points out that the court below found that Colonel Hollister had “standing.” He did this, as noted, by finding that he had jurisdiction but then dismissed on the grounds of failure to state a claim under Rule 12(b)(6). Soetoreo a/k/a Obama and Biden did not cross appeal the finding of standing by Judge Robertson. Why do you suppose this was since every other case that has been focused upon, over 20, have been dismissed for lack of standing? Why would not Soetoro a/k/a Obama and Biden have cross-appealed that finding of subject matter jurisdiction?