Following up on my previous entry, here's a summary of the discussion with Judge Lipez on November 19, aside from the rebuttal rule change discussed in that last entry. Notably, Judge Lipez brought the Deputy Clerk of the Court, Margaret Carter, with him:
1. settlement. Following up on previous discussions, input from Settlement Counsel King noted that he will waive the conference if after speaking with the attorneys he determines that the conference would be futile and he will travel to Maine for the conference. There was further discussion as to the timing of the cofnerence – while the general goal was to have the conference as early as possible, often the parties receive a briefing schedule before that date. All agreed that briefing will be deferred if one asks; the question was why does one have to ask – was isn't briefing after the conference routine? At one level, the answer is administrative, and lies in the separateness of the two offices, the clerk's office and settlement counsel's, but here's my own two cents, I don't think it makes sense to have a general default rule postponing briefing. As one participant noted, sometimes one side wants to see the brief first before seriously considering settlement. More simply, it takes long enough for an appeal – we shouldn't be massaging in more delay. And the bulk of cases don't settle. Judge Lipez and Ms. Carter didn't have the exact statistic, but thought that something like 30-35% settle. That sounds like a lot, but I've heard similar statistics before, and I think it measures the number of appeals that drop off before final resolution, for whatever reason, and are not necessarily products of the settlement counsel process. In any event, it sounds like the settlement process is becoming more focused on the cases that do have settlement potential, and that's a very good thing.
Also on the issue of settlement, Judge Lipez brought up his concern, articulated in the last meeting (see previous entry) about the panel suggesting at oral argument that the parties try one more time to resolve their dispute without a decision. His fear is that this encouragement might send the wrong message. This group of lawyers agreed with his concerns, as did the last group up in Augusta. Judge Lipez noted that practices are not likely to change – such a recommendation from the bench will remain rare but not prohibited.
2. U.Me oral argument. While the First Circuit doesn't ride the circuit as much as the SJC, with its annual Tour de Maine, it does periodically leave the beautiful confines of its homebase in Boston and hit the road. On April 5, a panel will be hearing appeals at the University of Maine. Judge Lipez noted that the Court goes to law schools from time to time, and it was time to head north, anving last been up in 2002.
3. ECF. Ms. Clark reminded everyone that ECF went live on October 13, in the voluntary stage, but that it will be mandatory on January 1, and attorneys needed to be ready. She handed out a sheet that noted what needs to be done (which I would attach if my assistant were here this week, but such computer skills are beyond my ken. I'm sure it's on their web site www.cal1.uscourts.gov). You need to register for a PACER account (www.pacer.psc.uscourts.gov) if you haven't done so previously;, complete the mandatory Electronic Learning Modules on the First Circuit web site (which completion will be assumed on an honor basis); and register with PACER for a First Circuit Appellate ECF Filer account at the PACER cite. On line at the First Circuit site, there's a user guide and administrative order with rules, and, if all else fails, a help desk. To date the most common aspect of noncompliance kicking a brief is scanning instead of converting the brief to a pdf.
4. Oversized briefs. Judge Lipez noted that often a request is made to file an oversized brief at the last minute, with a copy of the proposed brief, and that this was a risky practice, because the motion can be denied. While requests for a few (3-4) pages are probably safe, if you want a lot of extra space, ask early.
5. Statistics. Ms. Clark provided statistics similar to those Judge Lipez reported previously – approximately 8% of the Court's docket are Maine appeals (up from 7% last year). The most number of appeals come from Massachusetts, followed closely by Puerto Rico, with immigration cases third. Case load is fairly steady, at 1707 total this year, divided broadly one-third criminal, one-third civil and one-third other (e.g. agency).
6. The New Federal Rules. There was a gentle reminder that the new rules are effective December 1 – click on "what's new" on the First Circuit web site (above). The big change are time computations, now using total days instead of the old count the business days, exclude weekends approach. This change affects a host of filings, Rule 59 motions etc. Ms. Clark also noted that there is a change in the process used to issue certificates of appealability for habeas cases (see Rule 11 of the habeas rules). The district court will make that decision at the time it issues its ruling, as is the current practice in the Maine district court.
7. Appendix. With ECF in the trial court, a whole hard copy of the record is no longer going up to the First Circuit, and the question is how big an Appendix should you then file. (I blogged on this oint before, when the Court issued its new rules on this). The general thrust of the discussion is what I presumed. If you are alluding to an innocuous fact that no one disputes, the document doesn't need to be in the appendix. If for some reason somebody wants to see it, they can get it on line. The tricky decisionmaking is with the transcript in a sufficiency case or a harmless error discussion. You need to use your judgment.
I see this issue going away, as eventually everything will be electronic. While current judges may be more comfortable with hard copies, ultimately there will be processes and experiences so that the decision-makers, clerks and judges alike, will just be clicking on the electronic material and reading everything on the system. Maybe some materials some judges will still want printed out, but as we now have Kindles for books, I think hard copies will be deemed, in a generation perhaps, quaint relics along with quill pens.
8. Open discussion. Finally, there was a general discussion of various issues. One participant asked what the point was of a short argument (sometimes arguments can be set as short as ten minutes). Judge Lipez responded that he found oral argument important, and that some judges are not slaves to the clock, but to remember that the point of an argument is to answer the court's questions, and if you don't have the time left to articulate what you planned because you were focusing on what the court was interested in, that's not necessarily a bad thing. Amen.
Everyone agreed that these meetings are valuable, so another will be coming up in about 6 months, I believe again in Portland. A special effort will be made to encourage criminal practitioners to attend, but these meetings are invaluable for anyone who appears in the First Circuit. Thank you, Judge Lipez.