Friday, November 30, 2007

Karma Prevails

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Condominiums
Tone: Understated exasperation
Importance: 3.7

The combination in Bourne v. Northwood Devo., LLC (in re Northwood Props., LLC), 1st Cir. No. 07-1146 – a condominium dispute involving pro se litigants – is just lethal.

The case involved a dispute between unit owners nominally opposed to continued development of their condominium. The condominium was in bankruptcy. Its only hope of moving forward was development of additional units. Though they had opposed the development before the bankruptcy, the plaintiffs were shameless enough to buy some claims of the development company’s creditors and propose a competing plan of reorganization that would have paid them off for consenting to the development and then given them control of the development company.

The opinion’s tone is civil. But the panel makes its feelings known when it takes the rather unusual step of granting the development company its costs (which, alas, is not the same thing as awarding the development company its attorneys’ fees).

Thursday, November 29, 2007

But What About Bringing A Gun To The Town Meeting?

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Town Meetings
Tone: Dismissive
Importance: 6.1

There was a scintillating sequence during last night’s controversial YouTube debate among the Republicans running for President. One of the questioners asked that the various candidates compare the size of their respective sexual organs with those of their competitors.

What? The question was about how many and what types of guns they owned? Either way, get ready for a lot more gun-related questions as the U.S. Supreme Court contemplates the Heller case. It’s the sexiest case of this term, the one in which the justices will determine whether people have an individual right to keep guns in their homes.

But even if the gun owners win the Heller case – and they almost definitely will – they should keep in mind that Courts have profoundly limited the manner in which we exercise even our most precious individual rights. Take today’s fascinating decision in Curnin v. Town of Egremont, 1st Cir. No. 07-1786, as Exhibit A.

The case involves the free speech of rights of non-residents at a classic New England town meeting. And guess what? Non-residents have no such rights. Why? Because “[n]on-legislators have no First Amendment right to address sessions of deliberating legislative bodies.” Really?

Really. And the First Circuit cites a Supreme Court decision supporting this view of the law. That’s a big limit on the exercise of First Amendment rights, no?

Some Second Amendment enthusiasts just might consider canceling those Stinger missile orders they placed after the Supreme Court agreed to review the Heller case. Unless, of course, the Supreme Court adopts a more expansive view of Second Amendment rights than First Amendment rights. Which would be shocking.

Wednesday, November 28, 2007

Yesterday In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: Michael Bianco
Tone: Voracious
Importance: 6.0

We may as well acknowledge that he is taking over the world. Or at least this blog. And he gets a commendation for citing Marbury v. Madison in this decision, briefly adverted to early this morning:


*Not the act of getting ready for a theatrical performance.
**Not the one in your living room.

Tuesday, November 27, 2007

Tonight in Bruce Selya

The Widget

Court: First Circuit
Judge: Selya
Subject: Asylum
Tone: Incredulous, Whitmanesque
Importance: 4.0

He is large, he contains multitudes:


Update: Judge Selya also wrote the opinion in Aguilar v. United States Immigration and Customs Enforcement Division, First Circuit No. 07-1819. It is 48 pages long and actual news outlets are all over it.

Subprime Microeconomics

The Widget:

Court: First Circuit
Judge: Boudin
Subject: Subprime shenanigans
Tone: Clinical, disappointed
Importance: 4.2

The subprime loan/foreclosure/credit crisis is big news. Plenty of ink is spilled about Bear Stearns and Citi and all the trouble they’re having. You see decidedly less (but not nothing) about the communities where this is actually ruining folks’ actual lives. Places like Dorchester, Lawrence, Springfield.

A First Circuit decision today that is otherwise not terribly interesting gives you a notion of how it was done:

After purchasing a condemned or nearly uninhabitable property in Springfield, Massachusetts, usually at auction, the conspirators would arrange for a grossly inflated appraisal of the property; obtain a mortgage loan – based on fraudulent documentation and the fraudulent appraisal – for an unsophisticated buyer with low income, bad credit or both; then sell the property to the buyer and split the profits among the participants in the scheme (including the appraiser, the mortgage broker, the real estate lawyer, etc.).

Those who bought the homes were left with artificially inflated mortgages and usually defaulted; the banks were generally unable to recoup the full value of their loans because the homes were worth less than the false appraisals.

It should have been obvious that something strange was going on when the accident rehab offices on the Avenue started closing and turning into mortgage brokers.

Monday, November 26, 2007

Mmm – Davis Bacon

The Widget

Court: D.C. Circuit
Judge: Rogers
Subject: Government Contracts
Tone: Intermittently empathetic
Importance: 5.0

After a holiday that is so very much about food, it is fitting that we return with a case about Bacon! Okay, so it’s Davis Bacon. But still!

Davis Bacon is a federal statute governing what contractors must pay workers on federal construction projects. This case, Abhe & Svoboda, Inc. v. Chao, D.C. Cir. No. 06-5305, demonstrates that things get complicated very quickly.

The contractor on a bridge repainting project determined that it would pay its workers a mix of wages based on prevailing rates for painters, laborers, and carpenters. Union laborers and carpenters make less than painters. When the contractor submitted its bid, the Connecticut Department of Transportation, which was running bidding on the project, didn’t say that the contractor had to pay painters' wages. As the Court says, “the Department might have provided more explicit guidance.” But the Court still dismisses the contractor’s claim.

There’s a lot going on here that the opinion doesn’t quite address. This case isn’t an appeal of the Department of Labor’s determination that the contractor had to pay painters’ wages. Why the contractor didn’t directly appeal that determination is not clear. Also: how did the Department get interested in this contractor in the first place? Did the union representing Connecticut painters have anything to do with that?* If so, why did the Department focus on this particular contractor, given that the contractor had made its determination based on information it had received from other contractors?

More fundamentally: do we want labor unions controlling what people get paid on public construction projects? Because they do now. If you’re interested, there are good arguments for the status quo and against it (scroll for a bit and you’ll find it).

*You think?

Tuesday, November 20, 2007

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya (!)
Subject: “The vexing problem of internet predation”
Tone: To catch a predator-esque
Importance: 4.3

Here are today’s gems (one of which is pretty ironic, actually), from United States v. Dwinells, No. 06-1709:


Helpful Beavers Aid Needy Plaintiff

The Widget:

Court: SJC
Judge: Greaney
Subject: Zoning (and beavers)
Tone: Brackish
Importance: 3.6
The SJC’s decision in Jepson v. Zoning Board of Appeals, No. SJC-09914, will probably interest and confound the land use folks out there. Logically, the opinion feels like it skips some steps in exempting affordable housing developments that include commercial aspects from some zoning requirements for commercial uses.

What’s really significant about this decision, though, is the Court’s holding that one of the plaintiffs had standing to sue because some industrious beavers had built a dam in a wetland abutting his property. He prudently decided against suing the beavers. He sued the Town and the YMCA instead.

Monday, November 19, 2007

It's The Taxonomy, Stupid

Decisionism is all about product development and innovation. So it is with overflowing exuberation that Decisionism introduces a bell – or is it a whistle? – a feature, in any event, that will accompany each post, regardless of topic, target, or significance.

From here on out, you’ll notice an introductory widget that sets forth some basic information:

Court: As in, the panel whence said opinion emanates.
Judge: As in, the judge penning said opinion.
Topic: As in the area of law upon which said judge opines in said opinion.
Tone: As in, the manner in which said judge opines in said opinion.
Importance: As in, on a scale of 0.0 to 10.0, how important the case is to the future of the Republic. 10.0 is reserved for a decision either saving the Republic from imminent collapse or (as seems more likely these days) a decision that proximately causes said collapse. This category is, of course, entirely objective.
Seeing this taxonomy in action should provide an idea of how it will work. Let’s take Marbury v. Madison, for example:

Court: U.S. Supreme Court
Judge: Marshall (Not Thurgood)
Subject: Separation of Powers
Tone: Almoste Olde English
Importance: 9.9

Or Bush v. Gore:

Court: U.S. Supreme Court
Judge: ?
Subject: Equal Protection of Inanimate Objects
Tone: Unintelligible
Importance: 8.7

So let’s see how it works!

Christmas May Have Come Early For Employment Lawyers

Did the First Circuit just dramatically change the landscape of employment law? It may not have been trying to do so. But it says in footnote seven of Skirchak et al. v. Dynamics Research Corp., 1st Cir. No. 06-2136, that “Massachusetts law imposes a covenant of good faith and fair dealing in employment contracts.” And that sentence qualifies the previous one in which the First Circuit intimates that an employer may not “impose any term of employment in any manner it chooses.”

The status of the covenant of good faith and fair dealing in the at-will employment context is a bit more unsettled than all that. Some would argue that it doesn’t apply unless the employer has cheated the employee out of an already-earned bonus or commission. In the at-will context, with important exceptions for rights protected by statute, an employer most assuredly can impose any term of employment in any manner that it chooses. Because if the employee doesn’t like it, she has an easy way of elucidating her displeasure. She can quit and find another job.*

Now, though, the First Circuit seems to be saying that she also might be able to sue for breach of the covenant of good faith and fair dealing.

*As stated in an earlier post, the wisdom of this depends on where you sit.

Friday, November 16, 2007

Larry Craig So Wishes He’d Copped In Massachusetts

There is a statute that instructs judges considering plea bargains to make something along the lines of this statement:

"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."

In Commonwealth v. Rodriquez, Mass. App. Ct. No. 06-P-1512, the trial judge said the following:

"You need to understand that a finding of guilt on this offense may mean that you will be deported from the United States, that you may lose your permanent residence, your green card, and that you may lose your right to remain in the United States lawfully. Do you understand that?"

Think that passed muster with the appeals court? There probably wouldn’t be a blog post about it if it had. Tom Tancredo and Lou Dobbs just gave each other awkward high fives somewhere.

Thursday, November 15, 2007

Barney Alert: Amending Fraud Claims

What do you call someone who’s geeky? In junior high we were Barneys. Now this was Southern California, which is generally batty in a variety of ways but especially when it comes to the lingo. Today gives us an opportunity to inaugurate another irregular feature: the Barney Alert. Barney Alerts are for those of us who are geeky about civil procedure.

United States ex rel. Rost v. Pfizer, Inc., No. 06-2627, addresses an oft-forgotten aspect of moving to dismiss a complaint early in a case under Rule 12(b)(6). Plaintiffs regularly forget to ask the Court to allow them to try to fix a complaint that does not state a claim. When the request is made, it will usually be granted. In this case, the trial court never ruled on the plaintiff’s request to amend a fraud claim that it ultimately decided to dismiss. The First Circuit vacated the dismissal and sent the case back to the trial court. The lesson: always ask and make the record clear that you’ve done so.


With the possible exception of Ron Paul and his supporters, there’s general agreement that law-abiding people are entitled to some form of shelter even if they can’t pay for it. There’s also agreement, though it’s less broad, that landlords shouldn't be able to discriminate against potential tenants who would be paying their rent with help from the government. Today, the SJC, in DiLiddo v. Oxford St. Realty, Inc., No. SJC-9962, determined that this right of tenants to be free from discrimination vastly restricts the ability of landlords to negotiate lease provisions with local housing authorities. In other words, if you’re going to be a lessor of residential property, you can’t reject a potential tenant because he or she will use a government voucher to pay rent, even if the governmental entity that will be paying that rent is insisting upon lease provisions with which you don’t agree.

Doesn’t it seem like there could be constitutional problems with this? The SJC seems to think so. Chief Justice Marshall specifically and prominently notes that “[t]he defendants make no challenge, constitutional or otherwise, to the validity of the statute . . . .” Did the defendants make a conscious decision to avoid Fifth Amendment arguments? Or did they just miss the issue? Or is there no issue?

Tuesday, November 13, 2007

Dog Of A Case

Honoring our visit to the Fourth Circuit, here’s a link to that Court’s decision in Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 4th Cir. No. 06-2267. The defendant makes a dog toy that looks like Louis Vuitton handbags and calls it the “Chewy Vuiton.” There is no cause of action for bad spelling or infuriating punnery, so Louis Vuitton sued and claimed trademark infringement. And surprisingly, given the facts and the legal talent it employed, Louis Vuitton lost.

The Fourth Circuit affirmed the district court’s summary judgment determination that the dog toy did not impair the distinctiveness of Louis Vuitton’s trademark. This seems incorrect for a variety of profound reasons. Don’t be surprised if you see this case pop up again.

Dissent Alert

Dissents in the Appeals Court here in Massachusetts are infrequent and thus newsworthy. In Commonwealth v. Sanchez, Mass. App. Ct. No. 06-P-1197, the dissent espouses the appellant’s incredible argument that a judge’s instruction in a burglary case was deficient. Why? Because the trial judge instruction the jury that entering a house through an open window can satisfy the breaking and entering element of a burglary charge.

The rationale for the appellant’s argument was that disclosing this critical and not remotely self-evident point of law amounted to an endorsement of the prosecution’s version of events. The prosecution’s story was that the defendant entered an otherwise locked apartment through, you guessed it, an open window.

That a lawyer would be willing to make this argument and that an Appeals Court judge would find it compelling enough to write a dissent is further evidence that the public, in holding the profession in seriously low esteem, may well be on to something.

Reviewing A Review: Toobin On Thomas

Decisionism took the long weekend and visited the Fourth Circuit. This explains the lack of posts over the last few days. But the New Yorker provides excellent in-flight reading. And with its slowly expanding online presence, it provides some good blog posting opportunities, too.

This past week, Jeffrey Toobin reviewed Clarence Thomas’s memoir. Toobin implicitly raises an important issue: whether his own hatred of Thomas eclipses Thomas’s hatred of, well, everybody else. There’s little doubt that Thomas’s biography and his rightward views are often tough to reconcile. But Toobin can’t seem to control his inner liberal in this piece. Which is too bad, given that Toobin has in the past demonstrated an impressive ability to refrain from stepping all over himself in a genre where that’s quite an accomplishment. Of Thomas’s view that his race was a negative factor in his nomination to the Supreme Court, Toobin says “It is hard to tell whether this is self-delusion or dishonesty.” Toobin says that Thomas’s description of Anita Hill is “venomous and implausible.”

One would have thought that a Harvard-educated former Assistant U.S. Attorney would know better, would know to let the facts speak for themselves. But Clarence Thomas might be sort of like gambling and internet porn in that he causes impulse control problems.

Thursday, November 8, 2007

There But For The Grace Of God . . .

The next time you make a mistake, and there will be a next time, take some solace in the fact that you didn’t blow the appeal deadline on a $2.5 million judgment against one of your clients. Relying upon a tortured theory involving a motion for reconsideration, and quite possibly a judicious sense of charity, the Appeals Court was gracious enough to knock $250,000.00 off of the judgment in this case.

Now, the case did involve what appears to be a clear violation of the maternity leave statute by the defendant employer, so the blown deadline may have been the work of karmic forces that we must respect but will never understand.

Wednesday, November 7, 2007

Your Government At Work

There’s great interest in the Vith Ly decision yesterday from the SJC. The legal principles and precedential effects are interesting, but the case once again raises one of the most urgent and least sexy issues facing the Commonwealth and the nation: the basic diligence and competence of our government.

This is simple stuff, isn’t it? If we can’t manage to order a convicted rapist to jail for a period of sixteen years – during which time he’s twice brought before the courts for other serious charges – if we can’t manage that, should we be surprised when tunnels and bridges collapse, when restaurant venting systems go uninspected, or when giant pallets of cash disappear in the Green Zone? Maybe, though, this is just the kind of stuff that happens when turnout is fourteen percent.

Tuesday, November 6, 2007

My Kind Of Water-Borne Parasite

On environmental issues, the conventional wisdom is probably that big liberal cities like New York and Portland are more aggressively regulatory than the Bush administration or the judges sitting on most circuit courts of appeal.

How to explain this, then? New York and Portland unsuccessfully challenged an EPA rule that will require them to take additional steps to reduce the amount of cryptosporidium in public drinking water. The Court helpfully reminds us that cryptosporidium “is a parasite found in human and animal feces.”

New York and Portland also win the award for most cringe-inducing argument of the day: claiming that “sensitive subpopulations (e.g., AIDS patients) . . . tend to drink more bottled water than normal.” If you’re going to make an argument like that to smart fellas like Messrs. Ginsburg, Tatel, and Sentelle, you might want it to, er, have at least some factual support.

Paul Bunyan Is Smiling Somewhere

The legal profession is as guilty as any logger when it comes to deforestation. The Appeals Court today reminds us why this is so.

The Court determined that a nonparty to an arbitration doesn’t have to pay damages awarded at the arbitration. There’s a (weak) argument that things were slightly complicated because the nonparty was a surety and there were punitive damages involved. But this really looks more like something that the Appeals Court could have dealt with in one or two pages and not ten. Alas.

Monday, November 5, 2007

The Mass Pike Might Want To Revisit Its Budget Numbers

Most adults have jobs, and this is a good thing. Most employers, on other hand, think they can fire their non-union, non-contract employees at any time for any nondiscriminatory reason, freely alter plans for bonus compensation and sick leave, and the like. And they’re usually right about this.*

Today, however, the Appeals Court in LeMaitre v. Massachusetts Tpk. Auth, Mass. App. Ct. No. 06-P-0455, held that a personnel manual can give an employee a contractual right to get paid for sick leave. And this isn’t the first such case – legal authority on this question goes back quite a ways. You’d think employers in Massachusetts would have quit issuing personnel manuals a while ago, right? Not the Mass Pike.

Think about the number of Pike employees who will take advantage of this decision for their own benefit. This case might be a bigger deal that one engineer's sick pay.

* Whether you think this is a good thing depends on where you sit.

Friday, November 2, 2007

Today in Bruce Selya

What better day than today to begin an occasional feature: TODAY IN BRUCE SELYA? Known for his preposterous vocabulary, this First Circuit luminary is equally notable for the rarity with which he reverses summary judgment decisions. Today is no different. But the words, the words. They fill us with glee, especially those of us who feel we underperformed on the English SAT. In any event, some highlights from the opinion:


November 1, 2007

Now You Know!

Been wondering why the named defendant in immigration cases is some person named Keisler?* Because: “On September 17, 2007, Peter Keisler was named Acting Attorney General. That’s why. If this Mukasey madness continues, Mr. Keisler’s fifteen minutes may last a bit longer than anyone expected.

*Not wondering about this means that you are completely normal.

October 31, 2007

If He Had A Hammer

Some cases are notable merely because there are lawyers out there willing to take them.

In this case, the plaintiff decided that he wanted to kill himself.* So he tried to goad the police into shooting him to death, which is less uncommon than one might think. What makes this case strange, though, is that the police did shoot him, he survived, and then found a lawyer willing to sue the police for violating his constitutional rights by using excessive force to subdue him. Excessive force? Given his goal, isn’t the problem that the force was insufficient?

*There is no doubt that this extremely sad.

October 30, 2007

Show Your Work, Please

Appellate Courts occasionally leave critical logical steps unexplained.

When you get beyond the titillating facts, this case presents an interesting question of logic. Officer X did not have an adequate basis for conducting a search of the Suspect. Officer Y may or may not have had such a basis, but did not communicate that basis to Officer X. The trial court suppressed evidence recovered from a search based on Officer X’s inadequate basis, but did not consider Officer Y’s basis. The First Circuit vacates the trial court’s decision, saying that the trial court should have considered Officer Y’s basis for conducting the search, Officer Y hadn’t provided sufficient testimony about the facts supporting his basis, but – and this is the key – leaves it to the trial court to determine whether such additional evidence is necessary.

Forget about Officer X. Officer Y has not provided enough testimony to support the search. But the First Circuit leaves it to the trial court to determine whether even to take evidence regarding Officer Y’s basis for wanting to conduct the search in question. That doesn’t make sense. The First Circuit should have either affirmed the trial court or vacated its decision and ordered the trial court to take more evidence from Officer Y. That is, unless the First Circuit is implicitly telling the trial court that it can disregard Officer Y’s testimony based on his lack of credibility. But if that’s what it’s staying, why doesn’t it say that?

October 29, 2007

Hard Questions

How does a court decide whether to take a child from an uncle and aunt who are doing a fantastic job and give her to a father who isn’t horrific but isn’t great? The answer, of course, is “it depends.”

This Appeals Court decision, in In re Estelle, Mass. App. Ct. No. 06-P-1612, is interesting for another reason. It’s an example of an appellate court reversing a trial court while simultaneously giving the trial judge thinly veiled instructions for how to do what it was trying to do in its original decision.

Finally, it’s difficult to see how the law can play any effective role in an arena that is so intensely personal and emotional. For some, the notion of voluntarily relinquishing the right and immeasurable joy of raising a daughter is unimaginable. For others, it appears, not so much. But for these latter folks, maybe there ought to be an irrefutable presumption that you’re not a fit parent. That would certainly make cases like this one a lot easier to decide.

October 26, 2007

The Beast's Nature, Etc.

Perhaps the least fun aspect of the profession is its necessary proximity to intense human suffering. Every now and then, as in this decision, the enormity of that suffering completely overshadows the legal issues that arise.

Yet another example, by the way, of how easy access to personal firearms is one of this nation’s great ever-unfolding tragedies.

October 25, 2007


One thing that some insurance companies are very good at is getting in fights with people they insure. And they’re good at it in the sense that, regardless what you think of them, they tend to win. Not so today, in Utica Mut. Ins. co. v. Fontneau, Mass. App. Ct. No. 06-P-930.

A property owner guy owned two parcels of land right next to each other. He had liability insurance for one but not for the other. His policy for the insured parcel covered him for losses that happened on that parcel and on parcels used in connection with it. The property owner stored antique cars and other personal items on the adjacent parcel. A police officer came by to investigate vandalism complaints at the adjacent parcel and hurt himself on a path connecting the two parcels. The insurance company, Utica, refused to cover the loss, sued the property owner, and lost at trial and in this appeal.

The crux of the Court’s rationale was that the insurance company didn’t introduce evidence it was surprised it had to cover the loss on the path. What’s interesting here is that in a different case three years ago, the Appeals Court held that a regularly used private beach was not “used in connection” with the owner’s main parcel 500 feet away. Which means that Utica is probably shaking its head in disbelief at this point.

October 24, 2007

There Are Limits Out There Somewhere

In the current political and constitutional climate, it’s easy to forget on occasion that we have some fairly significant protections, at least nominally, within the bill of rights. One of these protections, found in the Fourth Amendment, is the right to be free from unreasonable searches and seizures. That right applies to good folks and bad folks, alike. And it makes everybody uncomfortable.

Earlier this week, three judicial celebrities on the D.C. Circuit (Ginsburg, Sentelle, and Tatel, JJ.) reversed the gun charge conviction of Ronnell Holmes. D.C. police officers saw Holmes visiting with an unsavory member of the opposite sex in a dark alley in the middle of the night. They detained him after a brief foot pursuit, took his car keys from him, handcuffed him, and then, after obtaining his permission, searched his car and found a gun under the front seat. The problem with the government’s case was the decision to take Mr. Holmes’s car keys from him. They weren’t a weapon and they weren’t contraband, so under the caselaw interpreting the Fourth Amendment, the police had no business with them.

The prosecution argued that the taint on the keys issue was mitigated by Holmes’s consent to the search. But the Court held that Holmes’s consent to the search had been coerced, that he’d only agreed to let them search the car (which they located by clicking the little remote unlock button) because he thought it was his only way of avoiding an arrest.

So Holmes, who admitted that he had been offering to pay his female friend for her entertainments, ran away from police when they approached him, and kept a gun under the front seat of his car, goes free. Imagine this though, what if instead of finding a gun under the front seat, the police found a dirty bomb? Same result? If the answer is no, that’s a problem. Isn’t it?

Not Enough Information

A mind-numbing decision from the Supreme Judicial Court concerning the appropriate price Cambridge should pay NStar for lighting equipment. What’s missing? The amount of money at stake, that is, the difference between what Cambridge says it should have to pay and what the Court ultimately decided it has to pay. Admittedly, the amount in controversy has nothing to do with the decision or the application of the law to the facts. But isn’t it important nonetheless?

October 22, 2007

In Other News, It’s Monday

The least surprising development of the day is another First Circuit case in which an official in Puerto Rico’s government alleges employment termination based on political beliefs. The Court seems to be good for at least one of these per week. What in the world is going on down there?

October 19, 2007


Sometimes it’s just pretty clear that a guy’s habeas petition isn’t going to be granted and he’s going to have to stay in jail. As in, when the First Circuit includes this sentence in its decision: “There is no doubt that [aforementioned habeas guy] killed Tyrone Davis outside a bar in 1999 by stabbing him in the head.”

Habeas guy might have had some hope if the First Circuit had concluded the previous sentence after “1999” or “by stabbing him”, but they had to add that critical, visceral, honking detail: “in the head.”

October 18, 2007

Hire the Frickin’ Expert

If a case is going to require expert testimony, or even if the other side is going to put an expert witness (or, say, six expert witnesses) on the stand to testify about a critical aspect of the case, it’s going to be a good idea to hire an expert witness. In this arson case, a lawyer did not hire an expert witness to rebut arson allegations against his client or to help him cross examine the state’s expert witness. He just poked around the site of the fire and decided to go along with the state’s determination that the fire in question had been set intentionally.

His reward? Public statements in federal courts that his performance as an attorney had been “deficient.” That’s like getting a gold star, except the complete opposite.

October 17, 2007

Every Great Once in a While . . .

Appeals don’t succeed all that often. Appeals by folks convicted of murder, based on an unscientific reading of the appellate cases reported in the Commonwealth, are successful even less often. But today, in Commonwealth v. Morales, 70 Mass. App. Ct. 526 (2007), the Appeals Court ordered in a new trial for Arcangel Morales. He was convicted of murdering a homeless man during a confrontation in 2002.

The victim approached Morales after a female companion complained that Morales had struck her on the chin with a beer bottle a few months earlier. Morales and the victim had words, and the next thing the assembled gaggle knew, the victim had been stabbed twice in the chest and once in the arm. Morales hopped on a bus to visit relatives in Pennsylvania later on that night.

Morales succeeded on his appeal because the trial judge didn’t give a correct instruction on voluntary manslaughter. Boiled to its essence, Morales was claiming he was provoked and stabbed the victim in “the heat of passion.” The judge wasn’t willing to let that happen because nobody had seen Morales and the victim physically touch one another. The Appeals Court said that physical contact wasn’t a necessary prerequisite for Morales to claim he was provoked.

There’s a weird footnote in here, though, that highlights often confusing distinctions between necessity and sufficiency. It’s footnote five, which reads in part: “We are also aware of decisions in which the court has held that physical contact by victims was insufficient to justify such an instruction.” So if physical contact is insufficient, and there was no evidence of physical contact, it seems initially strange that a murder conviction would be overturned because the judge held that physical contact was necessary for Morales to win his manslaughter argument. If you look hard, though, you can see it: physical contact is neither necessary *nor* sufficient for a defendant to avoid a murder conviction. Why the Appeals Court determined that this was better left unexplained is unclear.

October 16, 2007

Stealing From Special Olympics = Evil

A few years ago, there were stories about students at Pepperdine Law School who determined that if they represented criminal defendants, they would not try to employ technicalities to get them off the hook. The lawyer in this case, who represented someone accused of embezzling money from the Special Olympics, must not have a very large fan club chapter at Pepperdine. He argued that his client should get off because she hadn’t actually stolen from the Special Olympics, she’d stolen from the people who wrote checks to the Special Olympics. It’s all good, in other words.

Stealing from the Special Olympics is evil, by the way, but it’s always interesting to see how embezzlers set up their enterprises. The defendant in this case was a bookkeeper for the Special Olympics. She set up a false telemarketing operation and a separate bank account, and she was off to the races. Yet another reason that being intensely skeptical of any telemarketer is a very good way to be.

October 12, 2007

Use it Or Lose it

One would suppose that Merrill Lynch cringed just a tiny bit when it received bills from Eugene Volokh related to his First Amendment work on this case decided today by the First Circuit. That is, assuming that Prof. Volokh billed his time; he could just have a deep and abiding interest in the ability of big financial services companies to exercise First Amendment rights when firing employees. Or not. Everyone’s got to eat, in any event.

Learning that they’d lost the ability to even raise the First Amendment issue because they hadn’t raised it in the trial court? Merrill can’t have been too happy about that.

It’s always interesting to see what constitutional causes the assorted right-leaning members of the legal academy tend to espouse. The ability of big companies to make false statements about former employees seems a bit less urgent than others.

October 11, 2007


Every few weeks or so, a loopy Appeals Court decision causes members of the bar to collectively shake their heads across the Commonwealth. This is such a case. There’s a regulation governing administrative procedure stating that documents are deemed filed on the day that they are postmarked. The Division of Unemployment Assistance follows this regulation. An employee must “file” his or her appeal of an adverse unemployment decision within thirty days of receiving it. But for some odd reason, the “postmark” rule doesn’t apply to these appeals. Why? Apparently because “file” means “file” unless it means “file” in which case it doesn’t mean “file”.

Perhaps the most emblematic passage of the entire decision appears in footnote 6: “Rule 3 states, in relevant part, that ‘[a] civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk.’ At least for the purposes of this rule, mailing and filing are obviously not the same thing.” Obviously!

October 10, 2007

“You MUST Pay the Rent!”

How’s this for a business decision? A landlord decides to yank a Section 8 subsidy from a tenant without telling her and then commences an eviction action seeking possession and about $2,000.00 in unpaid rent. The tenant counterclaims and obtains a judgment for $10,000.00 in emotional distress damages plus more than $7,000.00 in attorneys’ fees. Add to that the fees that the landlord had to pay its own lawyer, and, there you go. This case is sure to scare landlords, who now need to worry about getting nailed for emotional distress when they raise a residential tenant’s rent and then try to evict them.

October 9, 2007


Late last week we learned that filing an EEOC “charge questionnaire” was the same thing, apparently, as filing an EEOC “charge of discrimination.” Even though the petitioner in this case had filed both. This was another instance of a person making a very simple mistake that, when presented to a jury, will make that person appear to be not so credible. Here, it was identifying the date of the relevant event as April 6, 2004 and April 2004 where the event actually occurred on July 6, 2004. Simple and fruitful cross examination possibilities abound.

October 5, 2007

Petitioning’s Outer Limits

In Massachusetts you can’t sue someone for petitioning the government unless your hypothetical adversary’s petition doesn’t have a factual basis. Things spin wildly out of control, though, since “petitioning” encompasses a rather large body of activities, including filing a lawsuit and talking to the press about a lawsuit you’ve filed. Today, the Appeals Court held that talking smack about a private company to a charitable foundation connected to the convention center in South Boston isn’t petitioning, even though the foundation was created by the legislature. This is probably right, though suing someone for talking smack (unless the smack is false) is a bit questionable.

October 4, 2007

Absence of Restraint

Two things that we thought we knew: (1) deceased people, even heroes, have no legal right to privacy and can’t be defamed; and (2) a court can’t prevent a news organization from reporting something before the fact unless there’s a *very* urgent national security interest at stake. It turns out we may have been wrong. WHDH is trying to get to the bottom of it.

The question of whether it was indecorous to report this story, by the way, is separate and distinct from the constitutional question involved.

October 3, 2007

Not Thinking Outside the Box

An interesting Appeals Court decision today. Something I didn’t know is that automobile companies have started putting “black box” recorders – a la commercial and other aircraft – that record things like vehicle speed in the moments before an airbag opens. Well, the Appeals Court held that these event data recorders produced evidence that a prosecutor can use when trying someone for negligent homicide. That’s a pretty notable holding and pretty big deal for lawyers that do motor vehicle cases, whether on the civil or criminal side.

So you’d think that the lawyer for the defendant would retain an expert witness to rebut the Commonwealth’s highly qualified expert who explained how these recorders work and how accurate they are. You’d think that, wouldn’t you? Because you’ve got to fight fire with fire and all that. Well, you’d be wrong.