Tuesday, July 29, 2008

Not Every Day? Who Is This Guy?

Yesterday, this blog included a post stating that it's really rare for appellate courts to reverse a trial judge who is trying to control his or her docket. So rare, in fact, that it's happened two straight days in two separate appellate courts located in the Commonwealth.

Today, it's Wilkins v. Cooper, No. 07-P-26. The procedural history here is Byzantine. But the nut of the issue is whether a trial court can dismiss a case where one attorney misses a status conference and, at that very same status conference, the Court can decide on its own to convert the status conference into a motion hearing and toss the case. The answer is no.

One other interesting fact here: there was at least one motion in this case on which the Superior Court held a hearing and then failed to issue an order for four years. The Appeals Court calls this a "remarkable delay." The Court, generously,* does not identify by name the judge who held these motions under endless advisement.

*Don't you want to know who it was?

Monday, July 28, 2008

Not Something You See Every Day

Appellate courts tend to give trial courts a lot of leeway when it comes to controlling their dockets. The only way a trial court will be reversed in this context is if the judge abuses his or her discretion. And appellate courts, especially the First Circuit, are very reluctant to find that a federal trial judge has abused that discretion. When they do make such a finding, they usually explain themselves in quite a bit of forceful detail.

So Beetz v. Ambrosi, First Circuit No. 07-2449, is just weird. The essence of it is that the trial judge allowed a motion to withdraw that also sought a 30-day extension of the time in which to file an amended complaint, then dismissed the case 23 days later. The First Circuit didn't call the trial judge onto the carpet, however. It just sent the case back.

Two other odd aspects of this case:

1. The plaintiff claimed that he'd filed an amended complaint in a timely fashion, the First Circuit believed him, but there was no electronic record of the filing. As most folks who practice in federal court will tell you, that doesn't happy very often. If ever.

2. The defendant claimed that since the trial judge had not explicitly allowed the original attorney to withdraw and stated that the time for filing the amended complaint was extended, that the order should only be interpreted as allowing the withdrawal. Some would call this argument "creative." Others would call it "stupid."

Wednesday, July 23, 2008

Loss Of A Less Than Even Chance

The SJC expanded medical malpractice liability today. The significance of the expansion remains to be seen.

In Matsuyama v. Birnbaum, SJC No. 9964, the Court holds that a patient whose chances of survival decrease from less than fifty percent to something less than that has suffered a compensable injury. This is a tough problem, and whether it challenges a lot of notions about tort law probably depends on how you feel about tort law as a general matter. If you have no thoughts about tort law as a general matter, you are either (a) sane, (b) not a lawyer, or (c) both.

But the logical problem, the conundrum, boils down to this: (1) you are more likely than not to die because of a certain medical condition; (2) a doctor is negligent in her treatment of you; (3) because of that negligence, it becomes even more likely that you'll die. In other words, the doctor's negligence itself hasn't caused the person to die. The SJC considers this issue in the context of someone who has passed away, but expressly leaves open the possibility that this claim can be pursued by a person who is still alive. See n. 33. Another interesting question is whether this theory would cover a plaintiff whose chance of survival decreased, but only by a small amount. The Court outlines a five step process for calculating damages, but you probably haven't seen the last of that issue.

The health care sector is, um, a bit of a big deal in Massachusetts. And the presence here of some of best medical minds on the planet means that a lot of very sick people come seeking help. Whatever you think of the result, it must be acknowledged that this case will affect the willingness of practitioners to pursue innovative solutions. And that's not a good thing.

Tuesday, July 15, 2008

Thrown To The Dogs, Er, The Voters

You may remember that eight years ago, voters in the Commonwealth narrowly defeated an initiative to ban dog racing here. Some folks who like dogs tried to place a similar initiative on the ballot in 2006. In response, some folks who like dogs, but especially when they're chasing a mechanical lure and running really fast, sued and got that initiative stricken from the ballot.

The people who like dogs as a general matter tried to get another initiative on the ballot this year. In response, the people who like dogs that chase mechanical lures sued again to keep the initiative off the ballot. Today in Carney v. Attorney General, SJC No. 10158, the SJC ruled for the people who like dogs as a general matter.

So we get to vote on dog racing this fall. Suggestion: let's just flip a coin and then have the people on each side of the issue donate the money they would have spent on consultants, mail, and advertising to nonprofits that help low-income kids in Revere (or Lynn or Chelsea or Everett, for that matter).

Friday, July 11, 2008

A Pesky Claim

With some frequency, enterprising plaintiffs include in their complaints claims for violations of the Massachusetts Civil Rights Act. The Act provides a cause of action when someone -- anyone: government, civilian, whatever -- interferes with another person's exercise of his or her constitutional rights. The SJC has been quite clear that the Act does not create a "vast constitutional tort", but it sort of, well, does just that.

Yesterday, in Kennie v. Natural Resource Dept. of Dennis, SJC-10052, the SJC reversed a trial court's summary judgment dismissal of a claim under the Act. The Act requires a plaintiff to establish that the interference with the constitutional right have been carried out by means of physical threats, physical intimidation, or coercion (which need not be physical). It's this last prong that makes claims under the Act so pesky.

Kicking claims like the one in this case to the jury gives plaintiffs a pretty formidable weapon. We each have an expansive collection of constitutional rights. And there are an expansive number of ways in which another person could interfere with those rights via moral or economic coercion. Most civil complaints filed in the Commonwealth probably include a claim for violation of the unfair business practices statute, Chapter 93A. Might we be entering an era where plaintiffs also, as a matter of course, also include claims for violation of the Civil Rights Act? Time will tell.


Monday, July 7, 2008

Unsolicited Observation

Not that any of the observations are solicited, but, well, you know.

The case, Commonwealth v. Smith, Appeals Ct. No. 07-P-446, is from last week.

But the question it raises should be asked every single day: what the hell does it say about us that there are metal detectors at the entrance to Brighton High School?

Tuesday, July 1, 2008

Retired Supreme Court Justices Don't Even Fade Away

There had been rumors out there that Former U.S. Supreme Court Justice Sandra Day O'Connor was sitting on panels of various Circuit Courts of Appeal. The rumors are true. And we are fortunate enough to have Justice O'Connor delivering opinions in our very own First Circuit.

Her decision in United States v. Novak, First Cir. No. 07-1826, is really interesting. The First Circuit was reviewing the trial court's decision to exclude recorded conversations between an attorney and a client. Writing for a unanimous panel, Justice O'Connor reversed the trial court's decision.

What is so interesting about this decision is that it's clear that Justice O'Connor didn't want to rule as she did. She is quite transparent in her belief that the recording of the conversations between an attorney and a client violates the Sixth Amendment to the U.S. Constitution. But the defendant had not relied upon a Sixth Amendment argument in the trial court; he'd used the Fourth Amendment protection against unreasonable searches and seizures and the trial court had agreed. And since we're engaged in what is at least nominally an adversarial process, the First Circuit didn't feel that it could step in for the defendant and make an argument that he, for some reason, had chosen not to make.

It all goes back to issue spotting in the end, doesn't it?