Tuesday, March 11, 2008

One Time is a Blip . . .

Two times is a pattern. Could three times (or more?) be a trend?

If you’ve ever wanted to know the ins and outs of staffing at the U.S. Marshal’s office here in Massachusetts, DeCaire v. Mukasey, First Cir. No. 07-1539, is the case for you. Today the First Circuit reversed the trial court’s finding for the defendant in this employment discrimination case. Apparently, the trial judge ruled against the plaintiff based on a view of the evidence for which the defense had not advocated, nor, it seems, even suggested.

There’s some language in here that would seem unusual were it appearing in a different context. “We have great concern,” they state at page 43 of the opinion, “over the district court’s utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake.”

Not so strange here.

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