SJC update & meeting with J. Lipez part II


Before we get back to the meeting with Judge Lipez, a few quick updates on the Maine SJC front –

1.  The long awaited decision on whistleblower supervisor liability under state law came out today.  The answer is no liability under the statutes. It was a rare 4:3 decision. [].  Congratulations Jim Erwin and Katy Rand, amici for various organizations supporting that position.  Here's a link to Jim's summary of the decision.  []

2.  You can listen to Katy argue a SJC appeal tomorrow.  The Court is also hearing an important state tax decision – Hebron Academy.  Remember, the Court now has live feeds if you can't get down to the courthouse.  Here's a link to what's being heard this week.  [

3.  The SJC has asked for a couple of amici briefs, on a workman's compensation [] and and a criminal issue []. 

Ok, back to the meeting with Judge Lipez.

The judge said that he had held a meeting with some Massachusetts attorneys taking criminal appointments, and he was struck by how often they waived rebuttal or didn't file a reply – about half, for example, didn't reserve rebuttal time.  Why would you ever do this, he asked?  Beats me.

He noted that people do not seem to realize that the Harry Potter Invisibility Cloak is not on them when they are not arguing.  Don't make faces, sigh, etc.  Be stoic.  This is so true, and so hard.  When someone says something loopy, you tend to react (ARE YOU MAD?!), and must repress this.  Just looking down and taking notes is one strategy, but then you aren't seeing how the court is reacting to the other side's arguments.  On a similar front, Judge Lipez said that when the red light goes on, don't look relieved, like you've just been waterboarded and the torture is over.  Amen to that, too.    

Judge Lipez noted how important it is to grab the Court at the beginning of the argument.  Say something pithy and striking.  I would only add that the protected time you can ask for from the SJC just exacerbates the boring speech problem – the number of people who use that time not to say their striking pithy conversational point, but rather to try to rush a 3-minute summary of all their arguments, which works better than Ambien to put the Court to sleep, is just astounding.  Don't do it! Your protected time is just a headline, a tweet, the essence of what the appeal is about.  It's not an opportunity to see how fast you can talk and whether you can cram a summary of everything into that window.  It's time to distill what the case is all about in a way that the Court will find interesting and important to them.   

On the statisics front, Judge Lipez reported that the First Circuit has the second highest affirmance rate of all the US Courts of Appeal – 86.1% for the period 2009-2011.  Only the Fourth Circuit is higher (87.9%).  The average is 79.7%, and the lowest is the Fifth Circuit at 71.5%.  Why is the First Circuit's rate so high?  I have no idea.  I would suspect it has something to do with the criminal, not civil side of the ledger, and that's not my general stomping ground, so I await edification from others.  Any thoughts?  

The Judge said if the order issues giving you only 10 or 15 minutes for your argument and you want more time, you can always ask, up to the maximum 20 minutes.  You may be denied, but the amount of time in the order cames from a staff attorney and the presiding judge can adjust it. 

In the Q&A portion of the discussion, David Beneman (federal public defender) asked if there were any way to get the Court to reconsider allowing attorneys to interview jurors after trial.  Others piped in that being able to give jurors a call, enabling follow up questions, was much more useful than court questionnaires.

Rufus Brown asked what the appropriate thing to do is when the Court raises an issue that the other side didn't raise and wasn't briefed, so you aren't really prepared to address – or worse, the issue doesn't get raised until you are done arguing and the other side is up.  Judge Lipez noted that Peter Murray had also raised this concern, and how helpful it would be if there were some way to identify the issues that the Court was interested in before the argument.  After Peter made this point, our intrepid Judge apparently brought this issue back to the Court as a whole and there was not much traction in doing anything.  So keep your ouija board and prepare for any and everything that could possibily be raised, even if it wasn't briefed.  My only words of wisdom on this front are not to try dealing with an issue only in argument if you can avoid it.  If, for example, there is a jurisdictional question about the appeal, then address it in the brief, even if the other side hasn't picked up on it.  Yes, there's a chance no one will see it, and if it's not in your favor, then you might think why should I discuss it?  But the odds are the Court (some hardworking clerk) will see it, and it's much better to have your answer in  front of them in writing to be absorbed instead of springing a first-time response at argument (and if you don't have an answer, then what are you doing there in the first place?)  

Again, another very informative meeting with our Maine representative on the Court.  Let's cross our fingers for having two Mainers on that bench soon!