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So, as some of my loyal readers may have heard, I am off to other adventures. After 11+ years of beavering away on this blog, commenting on “interesting” decisions emanating from the Maine Supreme Judicial Court, it looks like I will now be participating in issuing those “interesting” opinions. Let’s hope those black robes are slimming!

It’s been fun working on this blog these many years – at least for me. Some of you might have grown a little weary about my fascination with Rule 80Bs and 80Cs, and I did sometimes have a tendency to blather on as to certain issues that might have aided insomniacs to get a good night’s sleep. But I have been pleasantly surprised by how many appellate jockeys there seem to be in Vacationland – and elsewhere – reading the blog, and apparently equally fascinated with pondering the many different levels of deference, preservation issues, and other matters scintillating to me/us, but perhaps not the

As our last entry this year before heading off for the holidays, let’s take a look at a recent First Circuit decision in a Maine criminal case with a rare holding that the trial court abused its discretion in an evidentiary ruling, and the error wasn’t harmless. US v. Kilmartin, No. 18-1513 (Dec. 6, 2019). Judge Selya wrote the decision, with Judges Barron and Boudin on the panel. Jamesa Drake represented the defendant on appeal.

As described in the opinion, the defendant’s crimes would land him in the lowest circles of Hell in Dante’s Inferno. He falsely posed as a goldsmith to obtain cyanide, created a Gmail account, and searched out vulnerable people, agreeing to sell them the poison, but really sending them Epsom salts. When one victim tried to kill himself with the substance and failed, the defendant sent him a parcel with the real thing, and he died of suicide. The causes of action were

The judge I clerked for, John Grady (ND Ill) died this week. I’ve mentioned him in this blog before (From Ulane to Hively, Woman on a wall). He was a great guy, in many ways.

 In 2015, when he retired from the bench, his former clerks put together a book of letters we wrote to say thanks to him. Here’s what I said: 

It is almost 30 years from when I finished clerking for you – why is it I feel like retiring soon, and you are just doing this now? You must be made of sterner stuff.

I don’t keep my law school or undergraduate diplomas on my office wall, but I have hung with pride the certificate for rendering service as your law clerk.

Thank you for getting me on the right foot at the beginning of my career. You

Perusing recent opinions, we came upon a bankruptcy case in the First Circuit of some interest, In re: Palladino 17-1334.

Steven and Lori Palladino sent their child, Nicole, to Sacred Heart University, a private Roman Catholic university in Connecticut, whose values, according to its web site, include pursuit of truth, promotion of the common good, and recognition of the dignity and worth of every being. The school “embraces a vision for social justice and educates students in mind, body and spirit to prepare them personally and professionally to make a difference in the global community.” (Sacred Heart University Mission Statement)

Unfortunately, Steven and Lori were also running a multimillion dollar Ponzi scheme at the time. They were convicted of fraud  and the SEC obtained a $9.7 million civil judgment against them. They filed for Chapter 7 bankruptcy, and the trustee sought to claw back $64,000+ in tuition they paid to Sacred Heart for Nicole’s education over a

We’re back!

Oral argument

On to a presentation on oral argument from our friend Mark Fleming at WilmerHale – how can practitioners optimize their performances so judges will want arguments?

First, the moot. One point Mark made was the usefulness of having someone there to take notes, since if you are being mooted, you may not be in a position to remember specific takeaways. Another good suggestion was to stop the moot when you’re giving a really bad answer, and to work out the good answer then and there, because otherwise the bad answer might get wired into your brain. The Q&A that followed included a discussion as to how we make mooting less expensive. In keeping with a recent blog entry, the availability of law school programs was supported. Even if a moot is not in the cards, you can probably convince a lawyer buddy to just read the briefs and jot down questions for you.

An

I have just returned from a meeting of the American Academy of Appellate Lawyers in my old stomping grounds, Chicago. It was particularly engaging in terms of subject matter (as well as giving me the opportunity to eat a REAL pizza again). Here’s part one of my take-aways.

Storied justice

The first session was about appellate brief writing as storytelling, with the speakers two lawyers who write bestselling fiction in their spare time – Ronald Balson (in private practice, writing historical fiction) and David Ellis (a justice in the intermediate state court of appeals, who writes thrillers with James Patterson). Apparently, they don’t sleep. (Justice Ellis says he gets up and writes from 3:30 am until 7:30 am. Yikes.)

I’ve always thought that the rules for fiction and legal writing overlapped greatly (insert here joke about judges often thinking briefs are fiction). Obviously, there are differences – first and foremost, we must stick to the facts

Yes, it’s been a while – the combination of summer doldrums on the decision-issuing front and busy-ness and vacation frolicking on the part of yours truly. But the appellate courts are all back in session now with the kick off on the first Monday in October by the Supreme Court. So let’s get back to it.

The Supremes have a new rule this year (which, because they are the big poohbahs, they can, of course, ignore if they want). The Justices are now supposed to give parties uninterrupted time in oral argument before descending upon them like a chatty pack of wolves (chatty except for Justice Thomas, of course) . Although the allotted time for a Supreme Court argument is twice as long as a Law Court argument, the Supreme Court only protects an opening of two minutes, compared to the Law Court’s three minute rule. (Well, there are two more judges on the U.S. Supreme Court, and maybe we talk slower than

In a split decision, the First Circuit reversed a dismissal of a putative class action in a Massachusetts consumer protection case. Dumond v. Reily Foods Co., No. 18-2055 (1st Cir. Aug. 8, 2019)

The defendant New England Coffee Company sells a “Hazelnut Crème” coffee. The plaintiff sued because the coffee contains no nut – it’s all coffee, no nut, only nut flavored. The district court dismissed the complaint without leave to amend on the basis that the complaint wasn’t sufficiently specific. After rejecting that ground for dismissal and also rejecting a preemption argument, the majority noted that the defendants argued as an alternative ground to support the dismissal that the factual allegations complaint failed to state a plausible claim, and that’s the part of the decision that interests us.

Whether the label was deceptive, Judge Kayatta, writing for himself and Judge Torruella, opined was a question of fact. While the label said it was

We are in the summer doldrums in terms of issuance of decisions, but an interesting Order came down dated yesterday and appearing today on the First Circuit’s website – Thompson v. JP Morgan Chase, NA, No. 18-1559 (1st Circ., July 29, 2019).

The Order certifies a question to the Massachusetts SJC on an issue of state mortgage law. The matter was initially heard before Judges Thompson, Boudin and Kayatta (query why they are listed in that order in the Order when Judge Boudin is a senior judge). In that decision, the panel ruled in favor of the plaintiffs and said the bank could not foreclose, based on a purportedly inaccurate foreclosure notice. The bank filed a petition for rehearing and rehearing en banc “claiming for the first time” (oops!) that a state banking regulation required it to use the precise language in the notice. The Order characterizes this position as “debatable” and that normally it would let the decision stand,

At long last, the First Circuit has issued its en banc decision in Eves v. LePage. Cutting to the chase, the Court affirmed Judge Singal’s dismissal of the action on qualified immunity grounds.

Six judges heard the case: CJ Howard, and Judges Torruella, Stahl, Lynch, Thompson and Barron (Judge Kayatta recused). There were two opinions, one written by Judge Lynch, joined by CJ Howard and Judge Stahl, and a concurrence written by Judge Thompson, joined by Judges Torruella and Barron. The Judge Lynch opinion is the ruling, because it is the narrowest opinion, holding that Governor LePage was immune because a reasonable governor in his situation could have believed that Eves’ position as the new President of Good Will-Hinckley was to be a policymaking position for which political affiliation was relevant.

The concurrence agreed, but wrote an opinion discussing why absent that policymaking issue, they would have found no immunity.

All of that discussion from Judge Thompson in the