Justice Clifford and Judge Lipez


Two events to report on from last week.

First, Wednesday the SJC held a short salute to Justice Clifford, who is retiring this year after 30 years on the bench.  CJ Saufley gave an eloquent summary of Justice Clifford's career, character and why he will be missed by everyone who appeared before him and worked with him.  Justice Clifford then gave a short response that he didn't know why everyone was making a fuss.  The world would be a better place with more judges (and lawyers, and people in general for that matter) with Justice Clifford's temperment and broad and practical perspectives, and I'm sorry he is stepping down.  Aside from his judicial talents, he is also very nice and giving fellow.  He is a posterchild of civility and all-around good citizen.  Ave atque vale.  

The next day, Judge Lipez held the second of his sessions with the local bar (for a summary of the previous session, see my entry for 11/13/08).  As the last time, there were lots of useful tidbits.

Statistics.  From 2000-2009 civil appeals have decreased 5.9% in the First Circuit, while criminal appeals have increased 36.6%  In 2000, Maine had 128 appeals; in 2008, 126.  Judge Lipez predicts that the decline will not continue, noting that bankruptcies are on the rise and eventually some disputes end up at the Court of Appeals, and that recent declines in criminal appeals in Massachusetts and Puerto Rico appeared aberrational.  

Settlement counsel.   The new settlement counsel, Patrick King (for everywhere but Puerto Rico) will no longer require memoranda from the parties, but rather will review the file himself and if he has questions, will call counsel.  He will also come to Maine, and not require travel down to Boston.  He does not view himself as taking an aggressive approach to mediation.  He may be willing to carry out the conference via telephone and will not require the conference if there appears no reasonable chance of settlement.  Judge Lipez also noted that the point of the conference is to see whether there can be a settlement before a significant expediture of appeal, so if, because the notices are coming from two different sources, you find that the briefing schedule requires the appellant brief to be filed before the settlement conference, the appellant is likely to obtain an enlargement of time to file its brief after the conference, should it desire.

ECF. As I mentioned before, ECF is coming.  The clerk's office is developing the training materials for implementation.

Court reference to settlement.   A topic of considerable discussion was whether the Court should , as it does infrequently, suggest that the parties try settlement one more time.  Judge Lipez queried whether this was coercive (who will say no to the court?) among other things.  Essentially, everyone who spoke up at the meeting seemed to think it was not a good idea.  As a practical matter,the status quo is unlikely to change.

Rebuttal.   I raised a point I raised last time - the local rule and actual practice seem not to jive.  The local rule discourages rebuttal, while apparently all the judges allow it except perhaps Judge Torruella.  I think rebuttal is a good idea.  But whether the court's view, my point is that the rule should reflect reality, so everyone knows, and is on an equal playing field.

28(j) letters.  the Court perceives that it is getting too many of these, beyond the scope of the rules; it is unlikely to strike them sua sponte, so if you think the other side is going too far, file the motion to strike yourself.