Follow up

Practice area:

A few recent developments follow up on previous discussions about judges and cross-appeals, so let’s do a round up.

First, on the judge front:

  • Following up on our entry on Judge Lynch’s “hanging” (Woman on a Wall), I’ve seen the portrait and it’s quite nice.  I’d attach a picture if the IP people would let me.  If you go to the opening page of the Massachusetts SJC, you will see another nice painting of retired SJC CJ Marshall.
  • Following up on our entry on CJ McKusick’s passing (Hail to the Chief), there is a nice and informative article by Derek Langhauser in the latest  edition of The Journal of Appellate Practice and Process (dated Fall 2014 … hmmmm.)  The forward to the volume by the editor, Professor Nancy Bellhouse May, of the University of Arkansas law school, remarks that three judges from Maine – Judges Coffin, Gignoux, and Justice McKusick have either flirted with appointment to the US Supreme Court or been deemed mentor to such a Justice.  “Familiar with the character of Maine,” she writes (she went to Bowdoin undergrad), “I assumed for a long time that there was nothing unusual about the state’s producing a number of distinguished judges.”  She continues:  “But now I know that if this was business as usual in Maine, it has not been every state’s experience…. Perhaps, then the rise to national prominence of three Maine judges from a single generation suggests something important about the hard northern place that shaped them.”      

Finally, on the cross-appeal front, a topic upon which we have blogged repeatedly with respect to when you need to file one in Maine state court or the First Circuit, see the recent decision by the First Circuit in Murray v. Kindred Nursing Centers West LLC, No. 14-1943.  Kudos to PA’s Jim Erwin and Michelle Bush for prevailing in this appeal, which affirms summary judgment for the employer in an alleged whistleblower case.  The interesting point for appeal jockeys generally, is footnote note 5:  “This appeal was consolidated for argument with Appeal No. 14-2072.  The latter is an appeal by [the employer] (probably an unnecessary precaution) from the district court’s rejection of its judicial estoppel theory.  [Cite to district court decision]  We do not reach the judicial estoppel issue and, by separate order, we today dismiss that appeal as moot.”

The use of the word “probably” does not instill total confidence at least to me that you are safe in not cross-appealing when the district court has rejected your alternate ground for prevailing.  It may ratchet up the probability that you are safe, but given that filing the notice of appeal is one of the few basic jurisdictional requirements for getting your appeal right, that’s a risk, however small, you may not be willing to take.