What’s new with the First circuit


So my little Thanksgiving break is over, and here is the download on Judge Lipez's latest discussion with the Maine bar.  As previously noted, about every 6 months he invites all interested attorneys to meet, typically in Augusta at the MSBA headquarters.  The sessions are always illuminating, and adding to the occasion this time was the presence of Justice Alexander.

Items of interest included statistics, which are basically trending as previously reported.  For example, the number of appeals is lower, in double-digit percentages.  The chances of winning an appeal continue to be statistically remote – around 8%.  Justice Alexander noted that the SJC statistic is about the same.  But if you are wondering why it seems that a lot more than 8% of the SJC decisions you read involve a reversal or remand of some sort, that's due to another statistic – about 40% of the SJC cases in which the Court writes a full reasoned opinion (i.e. not a mem. dec.) are flips of some sort.  

This session discussed a lot of different points, but I would say that one general theme was trust.  For example, one issue discussed was whether panels should be announced more than one week ahead of argument, which is the current rule.  The conventional wisdom behind a short announcement period is to discourage panel shopping.  The general tenor of the attorneys' input on this point was that they should be trusted not do so, and having more time would be helpful.  My two cents on this issue is that the parties shouldn't know who the panel will be while briefing, but learning any time thereafter is ok with me.  I think in this circuit you wouldn't want the parties to know until after briefing because it's a small court, with strict rules about following the precedent of other panels, in an effort to keep individual court personalities out of play, and you want the briefing to discuss the issues in a broad minded manner, not tempered to any individual judge's perceived (usually wrongly) inclinations.  But after briefing, knowing the individual judges who will hear the case is helpful, because the point of argument is to answer the judges' questions, and if you know who the panel is, you can better prepare to do that.  

Finally, a good chunk of the discussion went to explaining the process by which cases are decided – which matters get sent off to staff attorneys, which get oral argument, and how or whether these different  manners of treatment do justice.  On the one hand, you'd like a perfect world in which the judges have limitless amounts of time to burrow into each and every appeal before them.  On the other hand, we live in reality (well, most of us); some types of decisions may need less process than others; and some kind of prioritization in this respect is inevitable.  I personally gleaned three basic points from this discussion.

First, it is always useful to understand how the court works.  Whether you like it or not, knowing your audience and the context in which it reviews your work can only help you craft your argument. 

Second, it's important to the parties and their counsel to believe that, whether they win or lose, their arguments have been heard.  Again, it's a question of building trust.  Hence, for example, the parties and their counsel want a new decision.  Even if the trial court meticulously reviewed all the relevant points and issued a whizbang, scorched earth 40-page detailed opinion, and there's nothing really that the appellate panel could add of substance to that analysis, the parties still want a new opinion to show that the panel gave their arguments consideration.  Even though the panel could spend a long time looking at an appeal, and concluding that it  has nothing to add to the district court opinion would only avoid wasted do-over time, absent a new opinion, the parties are less likely to feel closure.  I'm not sure that's logical, but it seems to be a psychological need.    

Finally, another way to build trust with the users of the appellate system is to treat them in a respectful way, that shows that they are being taken seriously.   It's a little like the studies they are always coming up with where patients say they'd be much less inclined to sue their practitioner for a goof if the doctor would just act like a mensch and say he's sorry – don't treat the user like the enemy, but rather someone worthy of communication as an adult, worthy of the practitioner (or decision-maker)'s time and consideration.  A little kindness from the court can go a long way.