download on meeting with J. Lipez – Part 1


The quarterly meeting with Judge Lipez previewed in my last entry took place on Nov. 28 chez Pierce Atwood.  We had an excellent crowd of @ 40 people, including some criminal law practictioners, which was great.  The meeting was crammed with information, any bit of which I could riff on, and so here's just a first entry on what took place.


Judge Lipez usually starts these meetings with some statistics, and this time was no exception.  Because I hope to get copies of the exact stats to post later, I will only remark on a few points.

First, there was a 7% increase in First Circuit appeals filed for the fiscal year, mostly BIA appeals and criminal cases.  Maine had a 10% increase (4% civil).  There was a big hike in criminal appeals from Maine (30%) – does this mean our fairly new U.S. Attorney Delahanty has been putting Red Bull in the office's water cooler?  

This hike is consistent with a national increase in appeals to the Courts of Appeal (4%), although the numbers are still very much down from the peak for the First Circuit from 2006 (@ 1900 appeals, compared to this year's 1618).


The judge gave a grim preview of life in the courts if we all dive off the fiscal cliff.  It sounded to me like the worst would be felt at the trial level, for civil cases – forget trials, no $ for jurors and there will be position cuts, furloughs and some court shutdowns on every level.  Looking just at the First Circuit, appellate level only, it will have to cut $1 million, meaning 15-20 jobs. 

However the budge issues resolve, there will be cuts.


Again consistent with past meetings, Justice Lipez gave us a few words on the mediation process.  About 33% of mediated cases settle.   

Now that the kinks have been worked out of this process, making it, I think, a much more positive  process – the focus now is on cases that have a chance of settling, no pre-meeting memoranda are required, and so on - it makes me ponder whether having something similar would be useful at the Maine SJC.  I used to think not.  But with these improvements at the federal counterpart, and over the years, there have been a handful of cases that I think might have profited by a mediation with a judge.  To be helpful, the process would need to be selective (perhaps only if one party sought it?) and cheap (a free judge mediator, no mandatory memos).  The mediator couldn't be one of the Justices – we need them for the appeal (and to keep the # odd so the thumb isn't on the scale for the appellee if there's a 3-3 tie).  But importing one of the Justices at the Superior Court to see if something could be worked out, or using an active retired Justice (Justice Clifford would be great) might not be a bad idea – again on a very selective, non-mandatory basis.

I know that our court is rightfully very sensitive to making the judicial system as easy for the pro se and ordinary citizen to navigate as possible.  Maybe having this sort of side ramp could help promote that effort. 

Disposition rate

The average for a soup-to-nuts appeal, filing to decision, in the First Circuit is 11.5 months.  This is versus the national avarage of 9.9 months.  Why are we slower?  If you've ever done any work in other circuits, you know why – the First Circuit writes many more full opinions than many other circuits.  I've noticed in the Second Circuit, for example, you can either get a short and snappy unpublished opinion in a matter of weeks, or you can go on a trip around the world – on foot – and be back sometimes before a full written decision issues.  (This of course is not always the case – the Second Circuit, for example, was very prompt in its Defense of Marriage Act ruling).

We are the 3rd highest ciruit in terms of percentage of written published decisions.  The DC Circuit is the highest, then the Seventh, then us. And there's a big drop off between us (38%) and the next highest (the 8th Circuit 28%, the 10th at 20% and the rest from 7.5-11%).

Why this disparity in issuing decisions?  Well, for one thing, we are a small circuit – some circuits have huge volumes of cases.  Again looking at the Second Circuit, at one point they were inundated with immigration appeals.

Another reason why the First Circuit may be a little slower than some other circuits may be because the First Circuit holds a lot more oral arguments than some other circuits.    


For the last year, you haven't had to be a member of the bar to get notices when something is filed in a case – so, for example, the media can sign up.  Go to the court website for more info.

En banc

Judge Lipez gave an informative explanation of how the new rule clarifying that a judge who votes that a case be heard en banc, but who becomes senior active by the time the rehearing takes place, cannot sit on the en banc panel (unless s/he was on the original panel).  The statute is apparently ambiguous; the circuits are split on this, and the background provided shows how not just useful but interesting info can be picked up via these meetings.

CJA vouchers

The Court of Appeals and the District of Massachusetts are going to carry out a pilot project handling all CJA vouchers electronically.  Since the total amount of $ that goes out to attorneys' fees looks big, from a political perspective, it is thought that administering these vouchers electronically will, among other things, help to gather information on what money is going where.

Remote participation

Judge Lipez noted that an argument was coming up in which he would go to the courthouse in Maine to participate in an oral argument taking place in Boston via video hook up.  He mentioned that the only other experience he had when a judge participated in an argument without physically being there was one time when a visiting judge became ill one a panel he was on, and that judge participated by telephone.  He asked the group what they thought of remote participation in arguments.

I share the view of the group as a whole – it's a bad idea.  I had one argument (Second Circuit – what is it about this court today?) where one judge participated via a speaker and it was not a pleasant experience.  You are having a normal argument, with eye contact, dialogue, seeing verbal cues etc., and then out of nowhere comes an Oz-like voice.  Video might be better, but if the point of an argument is to have a dialogue and get the judges' questions answered, everything outside physical presence in the same place just pales in comparison. 

Some of those present noted that video can work when taking discovery, dealing with experts etc., but all agreed that at the appellate argument level, having everyone in the same room is key.

More down load  to come.