11-17-11 meeting with Judge Lipez


As promised, here's the low down on the latest lunch meeting with Judge Lipez.  As always, these are helpful opportunities to speak with and hear from the First Circuit.  About 20 lawyers attended.  It seems to me anyone who has any reason to be before the court should come to these quarterly lunches.   But if you can't make them, hopefully my summary is the next best thing.

1.  The Appendix.  There was a lot of discussion about what should be included and what need not be, given that the Court of Appeals now has electronic access to everything in the record.  After the meeting, Judge Lipez issued the following statement:

"In counseled appeals, the district court no longer transmits a paper copy of the full record.  Rather, the district court will transmit to the circuit clerk electronically an abbreviated electronic record consisting of a copy of the notice of appeal, the order(s) being appealed, and a certified copy of the district court docket report.  These documents are used by the circuit clerk's office to open up the case on appeal and are usually attached to the first docket entry.   Counsel should ensure that the addendum and appendix, combined, include those parts of the record relevant to the issues on appeal.  At the same time, the appendix should not be unduly large.  Not everything cited in the brief need be included in the appendix.   For example, some citations in the Statement of the Case or Statement of Facts help "set the stage," but are not really necessary to an understanding of the specific issues on appeal.  Thus, those portions of the record don't need to be in the appendix. The judges do have access to the electronic record and may, if they wish, consult it.  See Fed. R. App. P. 30(a)(2) ("Parts of the record may be relied on by the court or the parties even though not included in the appendix.").  In addition, the district court transmits copies of documents not electronically available.  If a trial exhibit is critical to the issues on appeal, it facilitates matters if counsel ensures that the exhibit is transmitted.  However, the court of appeals can, on its own initiative, request the district court to transmit an exhibit.  So, the court of appeals judges do have access to the full record.  Counsel should not, however, assume that the court will do their work for them and should be sure that the appendix is adequate."

Call me Cassandra, but compare this statement to my previous musings and conclusions of April 15, 2009, when the new appendix rule was issued, and Nov. 24, 2009, after another meeting with Judge Lipez discussing the appendix issue.  Questions crop up on this subject because, I think, lawyers don't want to spend the time and money thinking about their appeal upfront (at appendix designation time), and, aside from timing, they don't see why they ever have to go through this step because the record is available electronically.  Setting aside for the moment the timing issue, and the benefits of getting a handle on your appeal issues sooner rather than later, there is something to be said for abandoning the written appendix, and some appellate courts don't require them any more.  Others use deferred appendices, and still others have each side file their own appendix with their brief. 

Eventually, as I've said previously, the appendix will go away, as more and more court personnel get  used to reading everything on line (see my last entry on what this on-line reading can mean to how you present things). (I asked Judge Lipez whether — see my previous entry – the court and clerks were reading materials on ipads.  The answer was some do, some don't.)  Ultimately, we may just be inserting hyperlinks.  For now, however, it's Captain Kirk time, not Captain Picard.  They still like printed copies of what you think is important in the record for them to look at, and they don't want to impose the cost and burden on the court side of printing out what they want to see in hard copy.  So remember, that's the ultimate touchstone – what is it that you want the court to review from the record, relevant to the disputed issues in your appeal?  What would a judge seriously considering your arguments want to see for him or herself?  No, it's not always an easy bright line; like many things in framing your appeal, you need to use some judgment.      

2.  Statistics. Folloing an ongoing trend, both here and elsewhere, the number of appeals are down – from a high of 1927 in 2006 to 1515 last year.  Maine stayed fairly steady at @ 8% of the total (the bulk comes from Mass and Puerto RIco).  Oddly, there was a 16% increase in civil appeals from Maine last year, but this is statistically insignificant, given that this just means 10 more appeals. 

There are different hypotheses for the general decline in number of appeals.  Judge Lipez noted that there was a big spike when the courts were sorting out sentencing issues in 2005-6, and when there were changes to immigration review, and now those spikes have receded.  I'd also attribute it to the fact that there are fewer cases at the trial level.  Mediation and arbitration are less expensive and more flexible than arm wrestling with e-discovery etc.   

Judge Lipez noted that in 2001-2 he had 29 sitting days – the norm was sitting @10 times each year for 3 days.  Last year he sat for 20 days, and this year, 23.  He issued an annual high of 58 opinions in the past (including concurrences and dissents).  This year it will be 39.

At the Supreme Court level,  one result of taken fewer cases (or at least a concurrent phenomenon) has been longer opinions.  I haven't checked to see if First Circuit decisions are getting longer.  As to whether this reduction means decisions will be speedier, the average time from notice of appeal to disposition is now 11.5 months in the First Circuit.  The national average is 11.3.  Last year, the First Circuit took 11.5 months, too, but in the past has taken longer.  

3. The budget.  My takeaway from this discussion is that the clerk's office is going to be hammered with staff reductions.

4.  ECF.  After passing on the compliment that the clerk's office thinks Maine attorneys are the bee's knees of those with whom they interact, Judge Lipez noted that when an appeal is first filed, and there have been a gazillion lawyers representing a party at trial but only one or 2 of them are ECF registered, it's a pain for the clerk's office, because it has to send notices to every non-ECF registered lawyer by mail.  I don't know what the quick solution to this is, except to have all the trial lawyers ECF registered at the First Circuit.

5.  CAMP.  The same message was conveyed as in previous discussions.  Judge Lipez noted that settlement counsel has gone up as far as Augusta for meetings, and remains wiling to hit the road.  His settlement statistic, for those appeals that go to CAMP mediation, is @40%, which I think is about the norm across appellate courts, when, as in the First Circuit, there is wiggle room to focus just on those appeals with some promise of settling.  Judge Lipez noted that there may have been some snafus in CAMP notices, so if you want a CAMP settlement conference, but don't get your notice, be proactive and call them.

6.  CJA vouchers. My takeaway here (and I'm not in the program) is that the Court is likely to be less willing in the future to allow deviations from the standard recoupment amounts.  You should use the forms provided when asking for deviation.  Note that the junior judge reviews vouchers, so that task now goes to Judge Thompson.

7.  Panel assignments. Judge Lipez noted some exceptions to random assignment – (a) after a remand, if the matter goes up again; (b) if the duty panel has rejected a recommendaton of summary disposition, that panel may get the appeal; and (c) if the argument date is continued, if scheduling makes it possible for the previously scheduled panel to hear the matter.  I asked whether the duty panel is likely to get an appeal in which it has entered a preliminary ruling, like ruling on a stay motion.  The answer was maybe, but scheduling issues may make this impractical.  

Also, compare the First Circuit's position on oral arguments – practically everything but pro se, social security and immigration cases get an argument – with the report in my previous entry from Judge Jones that an argument in the Fifth Circuit means that the outcome may be up for grabs.  There is a wide spectrum of what having an oral argument means among the appellate courts. 

8.  Judge LIpez's caseload.  He will become senior active at the end of the year.  This basically means that he can't hear en banc matters any more (there are usually one or two of these a year, unlike e.g. the 9th Circuit, where en bancs can be a matter of course).  He will keep a full load at least through next June.  He may taper some after that, to e.g. 75%.  He noted that among them, Judges Selya and Stahl and Justice Souter (see previous entries about the Kevin McHale of our Circuit) produce as much work as a full time judge.  Note that Justice Souter sits January-March, 3 days each month, so if your argument is scheduled then, that's when you may have a chance of being heard with him on the panel.  If so, you'd better be prepared (yes, you should always be prepared) – he is always on his game, can ask pointed questions (in a nice way), and may probe that weak spot you were trying to toss under the legal bed with the dust bunnies. 

9.  Replies.  Staff Attorneys report that they are disturbed by the lack of reply briefs in some cases, which does not send a good message.  This is pretty startling to me, since often the reply brief is the most important, because the briefing process has distilled the issues down to their essence, which is what the court is looking for.   

Finally, in the general discussion after Judge Lipez's report, Peter Murray commented that with argument time so brief, it could be more productive if the parties were alerted prior to the argument as to what were the issues of interest to the panel.  Some present noted that Judge Hornby sometimes provides this kind of notice.  This would be a delightful development, in my view, but I'm not sure logistically how it could happen with a panel of judges, who typically do not discuss the case with each other before argument.  Still, sometimes courts will order additional briefing on an issue they have spotted that has not yet been properly addressed.  Maybe there can be some easy process in which a panel could just email among each other as to whether there are any particular points on their wish list for illumination at the argument.  If so, the panel could share that/those point(s) with the parties prior to argument.  This experiment could start small, and not morph into a regular or required step unless or until the court thought it fruitful. 

Next entry, it's back to mining recent decisions from the Maine SJC for interesting and useful nuggets.