Yesterday was Bill Kayatta's last day at Pierce Atwood, so an Ave atque vale to him (hopefully not totally vale). The work is on his desk and I'm sure he is getting a running start, so get ready to have a sterling new judge on the job.
In pondering what I can offer to the loyal blog reader as tips for arguing in front of Judge Kayatta, I perused a presentation that we did jointly in house on persusaive brief writing, and basically, if you've been reading this blog, you know the rules. Since one of those rules is be concise, I'm not going to repeat them here. I will say that I would pay particular attention to the Elephant in the Living Room rule – i.e., don't think you can avoid the hard questions about your appeal. Don't think that any gyrations in your brief to distract the court from your weak points (what I would call the appellate counterpart to a comb-over) will work. You aren't fooling anyone, and certainly not the new judge.
The other point I would make is Judge Kayatta clerked for and was mentored by Judge Coffin, one of the leading jurists of all time. Judge Coffin wrote about appellate practice, so to get in sync with Judge Kayatta's perspective, I would brush off A Lexicon of Oral Advocacy, The Ways of a Judge, and other writings. Since he's a lovely writer, and his teachings spot on, this is no chore.
On another front, kudos to PA's Gavin McCarthy for prevailing in Blue Tarp Financial, Inc. v. Matrix Construction Co. Inc., Docket No. 12-1338 (1st Cir. March 8, 2013). The Court, Judge Thompson, writing for her panel with Judges Selya and Lipez, does a nice, straight forward job of applying the minimum contacts test, with those gestalt factors, in concluding that there was personal jurisdiction in Maine over the defendant. The Court punted on the most interesting question, which was whether the clause in the contract providing that it would be governed by the "laws of the State of Maine" and that in the event of default "Blue Tarp may institute suit against you in the courts of the State of Maine, regardless of where you are geographically located or conduct business" alone provided jurisdiction. But it viewed this point as an important factor in the ordinary analysis, along with the fact that the contract had been formed in Maine when the defendant faxed back an application.
