What to Know about the Proposed Amendments to Local Rule 25.0 and E-Filing in The First Circuit Court of Appeals

The First Circuit Court of Appeals recently released its proposed amendments to Local Rule 25.0, governing the use of electronic document filing (“e-filing”). While Many of the proposed amendments incorporate familiar aspects of the e-filing system in Massachusetts Federal District Court, there are some notable differences and aspects to point out. The following is a brief collection of highlights from the proposed rule amendments. The full text of the rule can be found here.

What Needs to be E-filed?

With limited exceptions, e-filing is mandatory for documents filed in the Court of Appeals. Appendices to briefs are still required to be paper filed. Additionally, motions to seal and documents that are sealed, ex parte or non-public must be paper filed. Practitioners can either e-file or paper file documents that initiate an appeal before the First Circuit (e.g., petitions for review, petitions for permission to appeal, etc.)

  • Note: Notices of Appeal must be filed with the Federal District Court and therefore are subject to the Federal District Court’s e-filing procedures.

E-Filing Briefs

Briefs and Addendum must first be e-filed with the Court. Briefs are deemed tendered to the Court for purposes of deadlines when they are e-filed. After a brief is e-filed, the clerk’s office will then review the brief to ensure that it meets federal and local rule requirements. If the brief is compliant, the clerk’s office will send a notification that the brief has been accepted. Once an attorney receives that acceptance notification, she or he must file nine identical paper copies of the brief so they are received by the Court within seven days of the notification.

  • Summary/Note: (1) E-file your brief (including addendum), (2) wait for the Court to accept the brief, and (3) file paper copies of the brief.
  • Appendices must be filed and served in paper form at the time the electronic version of the brief is initially tendered for filing.

Document Formatting

E-filed documents must be in PDF form. Specifically, the document must be created by converting the original word processing document into a PDF; creating PDFs by scanning paper documents does not comply with the rule. The rule against scanning paper documents to create a PDF does not apply to exhibits submitted as attachments to pleadings.

Time Filed

E-filed documents are deemed filed at the time stated on the Notice of Docket Activity from the Court. To be considered “filed” on the day the party e-files, the filing must be completed by midnight in the time zone of the circuit clerk’s office in Boston. This may be an unexpected difference for practitioners familiar with filing in Massachusetts Federal District Court, which requires that all documents be filed by 6:00 p.m. to be considered filed on the day of e-filing.

Motions Requiring Leave of Court

When leave to file is required to file a document, counsel should e-file both the motion for leave to file and the motion.

Supreme Court Closes The Door On A Tactic Used By Plaintiffs To Appeal Denials of Class Certification

The Supreme Court recently decided a case involving an Xbox 360, although the issue before them had nothing in particular to do with the video game system itself. It got me wondering, however, how many justices would you guess have played a video game on an Xbox 360? The answer might be zero. But the Chief Justice and newly-minted Justice Gorsuch have teenagers at home. And I could envision Justice Sotomayor or Justice Kagan playing with a young relative. A majority of the Court? Justice Kennedy vs. Justice Breyer playing against each other in chambers? I doubt it.

Microsoft Corp. v. Baker involved whether a plaintiff can appeal a decision denying class certification (or, in this case, striking the class allegations) by voluntarily dismissing the case while purporting to reserve a right of appeal. This case was a putative class action alleging that the Xbox system scratched game discs thereby damaging them during normal game-playing conditions. The district court granted a motion to strike the class allegations based on an earlier decision in a similar case denying certification. The plaintiffs petitioned the Ninth Circuit for permission to appeal under Rule 23(f), which was denied. They then stipulated to a dismissal with prejudice, purporting to reserve a right of appeal, and thereby trying to force the Ninth Circuit to take their appeal. On this second try, the Ninth Circuit concluded they did have a right of appeal because there was a final judgment under 28 U.S.C. § 1291. But the Supreme Court reversed, finding that there was no appellate jurisdiction under § 1291.

Justice Ginsburg wrote the majority opinion (joined by Justices Kennedy, Breyer, Sotomayor and Kagan). Her opinion made essentially two points. First, the tactic that plaintiffs’ counsel attempted to use here was contrary to the rationale behind the Court’s opinion in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), which held that a decision denying class certification was not appealable under a “death-knell” doctrine  on the theory that such a ruling effectively ended the litigation. The Court concluded that such a “death-knell” doctrine was an improper end-run around §§ 1291 and 1292. Second, allowing this type of appeal would be contrary to the purpose and intent of Rule 23(f) and its enabling statutes, under which appeals from class certification orders may be heard only in the discretion of the court of appeals. If permitted, the voluntary dismissal route would allow a plaintiff to force a court of appeals to hear an appeal where not permitted under Rule 23(f).

Justice Thomas (joined by Chief Justice Roberts and Justice Alito) reached the same result but for an entirely different reason. They concluded that Rule 23(f) was not relevant to determining whether an appeal was “final” under § 1291, and that in this case the district court’s order was final because it ended the litigation. They would have held, however, that the court of appeals lacked jurisdiction under Article III of the Constitution because there was no longer a “case or controversy” that was adversarial. Justice Thomas explained that, after the individual claim was resolved, “[c]lass allegations, without an underlying individual claim, do not give rise to a ‘case’ or ‘controversy’” because a class action is simply a procedural mechanism.

So what can a plaintiff do if he or she wants appellate review of a denial of class certification and the court of appeals denies a Rule 23(f) petition? Justice Ginsburg suggested three options. First, she suggested that a plaintiff could ask the district court to certify its order for interlocutory review under § 1292(b). But some lower courts have found that to be an improper avenue for seeking appellate review of a class certification decision. And if the court of appeals is not interested in a Rule 23(f) petition, it would probably take a strong request from a district court to get the court of appeals to reach a different result. Second, Justice Ginsburg suggests that the plaintiff could simply proceed with the case in the hopes of perhaps changing the district court’s mind on class certification later. But that is usually a longshot, and at some point it’s too late for that because class members must have notice before they would be bound, and the one-way intervention rule may preclude a late certification. Third, Justice Ginsburg suggests that the plaintiff litigate the individual case to a final judgment and then seek review of the denial of class certification (if the plaintiff wins). We may see more cases where that happens, depending on the circumstances. The costs of taking the named plaintiff’s individual case to trial may be low in some contexts and high in others (such as those requiring extensive discovery and expert testimony to prove the claims on the merits). From the defendant’s perspective, such a  trial might demonstrate why class certification was properly denied because individual issues mattered. But in some contexts defendants may not welcome such an individual trial because of concerns about collateral estoppel.

How Long Will My Appeal Take?

Appellate lawyers are constantly asked (and asking themselves) some variant of the same question: “How long until we get a decision?” The reality is that it’s hard to know. Nevertheless, most will, after being pressed, venture a guess based on their informed experience.

To supplement our informed experience, we conducted an analysis of twenty-one recent civil decisions issued by the Massachusetts Appeals Court since March 1, 2017, as well as another ten Supreme Judicial Court decisions issued during the same time period.

Based on our review, we determined that it took a median of 418 days to resolve an appeal in the Appeals Court from start (notice) to finish (judgment). The median time for a decision in the SJC was 315 days. The data shows a breakdown in the Appeals Court cases as follows:

  • Less than 350 days: 2
  • 350-400 days: 4
  • 400-450 days: 8
  • 451-550 days: 3
  • More than 550 days: 4

These findings show that appellate litigants can expect that in most circumstances an appeal will last between 12 and 18 months, with the decision most likely to be issued 14 months after the appeal is filed.

We also determined that it took a median of 120 days for a decision following appellate argument in the Appeals Court. In the SJC, the median time was 118 days. The data shows a breakdown in the Appeals Court cases as follows:

  • Less than 100 days: 5
  • 100-125 days: 6
  • 126-150 days: 4
  • 151-200: 2
  • More than 200 days: 4

These findings show that appellate litigants can expect that in most circumstances they will receive a decision between 3 and 5 months after appellate argument.

For bonus points, we looked at the same data to ascertain the answer to another question commonly asked by and to appellate attorneys: “What does it mean that the court has taken a long time to decide?” To answer this question, we calculated the time from appellate argument to affirmance versus the time from appellate argument to reversal.

We found that the median time from appellate argument to affirmance was 120 days. By contrast, the median time from appellate argument to reversal was 146.5 days, a difference of 26.5 days. Thus, the data arguably shows that the longer it takes for a decision to be issued the likelier it is that the decision will reverse the lower court.

These findings, of course, only represent probabilities, and would be enhanced by a larger sample size. Nevertheless, they provide helpful empirical data to supplement our informed experience when projecting how long an appeal will take and what it means when the appeal takes longer than expected.

Appeals Court Oral Argument Pilot Program

In April 2017, the Appeals Court launched an oral argument pilot program that staggers attorney appearance times. This means that the “old days” of arriving at oral argument before 9:30 a.m. and waiting through a series of arguments before your case is called may soon be history. The pilot program organizes the oral arguments in three groups based on the order the cases are listed on the Court’s argument calendar. Parties for the first three cases must appear by 9:30 a.m., parties for the fourth and fifth cases must appear by 10:30 a.m. and parties for the final case(s) must appear by 11:00 a.m.

The pilot program includes most cases that are scheduled for argument at the Appeals Court from April through June. All cases included in the pilot program will receive notice of the staggered appearances. In the event you have an upcoming argument at the Appeals Court, and are unsure of whether you received such notice, each case included in the program has an Appeals Court docket entry stating, “Scheduling Update and Notice of Oral Argument Pilot Program sent.”

The oral argument pilot program is just one of the many recent Appeals Court initiatives aimed at making Massachusetts appellate practice more efficient. This program may streamline the oral argument process, saving both attorney time and client money. However, because the program will almost certainly curtail the extent to which attorneys are “forced” to watch their colleagues argue, this time consuming but valuable opportunity to observe and learn from other practitioners may no longer be easily accessible for busy attorneys.

For new appellate attorneys the opportunity to observe more experienced practitioners argue – the good, the bad, and the ugly – can serve as a crash course in seeing what works and what doesn’t before your turn at the podium. Even if you are ruminating over your case or silently rehearsing your best zinger during the other arguments, you nevertheless learn from the style and substance of other practitioners’ arguments by osmosis. Seasoned appellate attorneys have just as much to gain from watching others argue, including incorporating stylistic refinements into your oral argument repertoire. While practitioners are, of course, free to visit the Appeals Court and watch argument, the reality is that most attorneys do not have the luxury of observing hours of appellate argument unless they are already there waiting for their case to be called.

Beyond learning from other practitioners, watching earlier arguments provides a helpful opportunity to get a sense of the three-justice panel before your case is called. Is it a hot bench? What type of questions are they asking? What areas are they focusing on? Getting a feel for the justices on the day of argument is crucial because it is almost impossible for anyone other than Appeals Court frequent-fliers to argue before all, or almost all, of the twenty-five member court. This is particularly true given the recent wave of retirements and the influx of new justices (seven justices have been appointed since 2015 and more are on the way). Now even the most experienced Appeals Court practitioners will soon be arguing before unfamiliar justices.

How to Write More Effectively for the Electronic Reader

I chair the Appellate Law Section of the Federation of Defense and Corporate Counsel. Members of our section recently put on a great program on how to make legal briefs more effective for judges and law clerks who read them on electronic devices rather than on paper. While the Massachusetts state appellate courts still have not implemented electronic filing, the SJC posts briefs online,  the First Circuit has electronic filing, and some judges and justices (or their law clerks) may be reading your brief on an iPad or other similar electronic device. When reading on such a device, people tend to skim the text more, looking for visual cues and parts of the text to focus on more intently. Here are a few tips I gleaned from the FDCC program on how to make your brief more effective for someone who is reading a brief on an electronic device:

  • Use more headings, lists, and bullet points to guide the reader.
  • Use shorter paragraphs, with well-crafted topic sentences.
  • Use summaries that not only provide a roadmap but explain your key points concisely.
  • Use more white space (although when you have a page limit, rather than a word limit, this can be challenging). Electronic readers tend to focus more on the top portion of a page, so if you can, you may want to place the most important content at the top of a new page rather than the end of the previous page.
  • Consider visual aids, such as a photograph, chart, or side-by-side comparison, where appropriate.
  • Consider using hyperlinks, internal or external. There likely will come a day when it is standard procedure required by court rules to provide direct links in briefs to cases cited and to the appendix.

Most of these tips were key features of strong paper briefs before the advent of electronic readers. I think it is now especially important to keep these tips in mind for every brief you write.

Intent to Injure Can Be Inferred as a Matter of Law Barring Coverage Under a Homeowner’s Policy for Bodily Injury Expected or Intended by an Insured

On November 7, 2016, the Appeals Court heard oral argument for Liberty Mutual Fire Insurance Company v. Ryan Casey & Another (16-P-32).  Defendants Ryan Casey and Evan Williams appealed a Superior Court’s summary judgment decision in favor of Liberty Mutual Fire Insurance Company (“Liberty Mutual”) that concluded that the insured, Casey, expected or intended to cause William’s bodily injury as a matter of law. The Superior Court held that Liberty Mutual had no duty to defend or indemnify Casey or pay William’s medical expenses due to an exclusion in the policy for bodily injury “which is expected or intended by the insured.” The Appeals Court upheld the Superior Court’s decision on March 29, 2017.

William and Casey got into an altercation in a remote location. Casey punched and kicked Williams numerous times, leaving him seriously injured. Casey was indicted for the attacks and pled guilty to assault and battery by means of a dangerous weapon and assault and battery causing serious bodily harm. He was sentenced to a house of correction for 2 ½ years and probation.  Williams made a claim under Casey’s parent’s homeowner’s insurance policy with Liberty Mutual. The policy contained certain exclusions that stated that certain coverages did not apply to “’bodily injury’…[w]hich is expected or intended by the ‘insured’, even if the resulting ‘bodily injury’ . . . is of a different kind, quality, or degree than initially expected or intended.” It is that clause that the Superior Court judge determined excluded coverage for Casey and Williams. Continue Reading

Washington v. Trump: Insights for Appellate Lawyers

Is there anything appellate lawyers can learn from the recent high-profile telephonic oral argument held in the Ninth Circuit in Washington v. Trump? A Defense Research Institute Appellate Advocacy Committee teleconference recently endeavored to answer that question. The speakers were Mary Massaron and Jerry Ganzfried, and the moderator was Keith Whitson. Here are a few takeaways I gleaned from their presentation:

  • Appellate lawyers can sometimes find themselves in a bind when trying to seek expedited appellate relief. If you wait too long to file, it becomes more difficult to make the case that there is an emergency. But you need time to prepare high-quality papers. Burning the midnight oil may be the only solution here.
  • When you are questioned on an issue that is weaker for your side, one good strategy is to answer the question directly and move on quickly. One of the speakers quoted Justice Scalia as encouraging advocates to yield the indefensible ostentatiously.
  • When you have a procedural argument (such as whether the trial court’s order is appealable) that logically should be addressed first, but you anticipate the court may not be interested in dwelling on at oral argument, you may want to note that the issue is fully addressed in your brief and then state that unless the court has questions on that you will move on to your next point.
  • Appellate courts are often focused on which issues must be decided and how narrowly they might be able to write an opinion. Be prepared to offer alternative approaches that might soften the blow for your client if you do not win on all issues. You may need to clear those with your client in advance of the argument.

The SJC Defends Environmental Bloggers’ Right to SLAPP Back in Defamation Suit

In Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479 (2017), the Supreme Judicial Court held that the anti-SLAPP statute protected two bloggers’ critical opinions contained in a blog post directed at a scientific consulting firm working for British Petroleum (“BP”) in the wake of the Deep Water Horizon spill.

The defendant bloggers, two environmental advocates, published a blog post criticizing the scientific consulting firm’s analysis and reporting on the toxic effects of the spill on clean-up workers. The allegedly defamatory post criticized the consulting firm’s report for not “coming clean,” and for the firm’s history of defending polluters.

On direct appellate review, the scientific consulting firm argued that the defendants’ blog post was not protected by the anti-SLAPP statute because it did not involve a grievance that was personal to the defendants. The SJC flatly rejected this argument, concluding that the history of the constitutional right to petition and the anti-SLAPP law protect an individual’s right to petition, even if that individual is not the beneficiary of the particular cause they seek to advance.

Ask and you (might) receive . . . just don’t forget to ask!

Nestled in the Court’s opinion is also a helpful refresher on the importance of requesting appellate attorney’s fees and costs in your appellate brief as required by Fabre v. Walton, 441 Mass. 9 (2004). To successfully obtain attorney’s fees and costs you are required to do the following:

  1. You MUST request appellate attorney’s fees and costs in your brief. Failure to request fees and/or costs waives the right to either or both.
  2. If you prevail, you must file a submission detailing and supporting the attorney’s fees and costs sought. This normally means submitting detailed billing/time records and an affidavit detailing the attorney’s qualifications, reasonable hourly rates and hours expended on the appeal.
  3. The Court will grant the opposing party a reasonable opportunity to respond to the petition for appellate fees and costs (usually fourteen days).
  4. Generally, the Court will grant the fee and cost application, or some portion thereof, without an additional hearing.
  5. Any party aggrieved by the decision can request reconsideration.

What happens if a party does not request appellate fees and costs in their brief? While the request is technically waived, the Court may exercise its discretion to award fees and costs, but it will exercise this power “sparingly.” Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006) (emphasizing that making the fee and cost request in the brief is “imperative” and failure to do so constitutes waiver). This procedure applies to both the Appeals Court and Supreme Judicial Court.

Chapter 93A Damages Do Not Include Post-Judgment Interest Accrued on an Underlying Judgment

Addressing an issue of first impression, the Supreme Judicial Court (SJC) announced last week that an insurer’s liability for multiple damages under Chapter 93A for unfair claim settlement practices committed in violation of Chapter 176D does not include the post-judgment interest accrued on an underlying judgment. Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, No. SJC-12108, 2017 Mass. LEXIS 25 (Feb. 2, 2017).

The decision is among the first authored by Justice Gaziano, who was elevated to the SJC this past summer. The appeal was argued by Kathleen M. Sullivan, former dean of Stanford Law School and current partner at Quinn Emmanuel, for the appellants, and Leonard H. Kesten of Brody Hardoon Perkins & Kesten LLP, for the appellees.


Briefly, a Massachusetts jury awarded the plaintiff damages for the injuries he sustained when he was hit by a bus while crossing Staniford Street in Boston. The judgment was for $2,244,588.93, including $1,569,330 for the plaintiff’s actual damages (after a reduction for comparative negligence) and approximately $450,000 of prejudgment interest. The defendant bus company appealed the jury award and lost. Accordingly, the plaintiff ultimately received an additional $1,284,243.17 for post-judgment interest accrued during the pendency of the appeal.

In a separate third party coverage action, the plaintiff sued the bus company’s insurer for unfair and deceptive trade acts or practices in violation of Chapter 93A, based on the insurer’s failure to effectuate a prompt, fair, and equitable settlement once the bus company’s liability became reasonably clear, in violation of Chapter 176D. After a ten-day jury-waived trial, the judge sought to impose the “maximum available sanctions” against the insurer after finding it knowingly and willfully violated Chapter 93A. In an amended judgment, the trial court awarded the plaintiff three times the amount of the underlying judgment, inclusive of post-judgment interest (i.e., 3 x $3,252,857.80). After losing in the Appeals Court, the defendant insurer petitioned the SJC to reverse the entry of judgment, insofar as it included in its calculation of multiple damages the post-judgment interest accrued on the underlying judgment.


The sole issue before the SJC was whether the trial court properly included the post-judgment interest accrued on the underlying judgment in its calculation of the punitive damages award. In other words, the question presented was: after finding a violation of Chapter 93A and determining that the maximum possible sanctions were warranted, should the trial court have trebled the underlying judgment with post-judgment interest (i.e., $3,252,857.80) or without (i.e.,  $2,244,588.93)?


The SJC started its analysis by acknowledging that the statutory language in Chapter 93A (G.L. c. 93A, § 9), which refers to multiplying “the amount of judgment,” does not provide express guidance on whether the “judgment” should include post-judgment interest. To resolve that question, the Court looked to the pre-judgment and post-judgment statutes themselves.

The statute governing pre-judgment interest, G.L. c. 231, § 6B, provides that, in a tort case involving personal injury or damage to property:

[T]here shall be added by the clerk of court to the amount of damages interest thereon … from the date of the commencement of the action.

By contrast, the statute governing post-judgment interest, G.L. c. 235, § 8, provides that:

Every judgment for the payment of money shall bear interest from the date of its entry …

The SJC found it significant, and ultimately dispositive, that whereas the pre-judgment interest statute states that the interest is added to the judgment, and is therefore part of it, the post-judgment statute states that the interest bears on the judgment, and is therefore distinct from it.

The Court also noted in its decision that the Massachusetts form of executions (see G.L. c. 235, § 8) distinguishes between a judgment and post-judgment interest, as does Mass. R. Civ. P. 54(f), which sets forth the rules for computing post-judgment interest. Moreover, the Court noted that while the purpose of the pre-judgment statute is to compensate claimants for their loss, the purpose of the post-judgment statute is, by contrast, in part to discourage frivolous appeals.

Finally, the Court cited the rule of lenity, an arcane canon of statutory construction providing that ambiguous penal statutes should be construed narrowly in favor of the defendant. This last justification is noteworthy in light of the SJC’s frequent characterization of Chapter 93A as a remedial statute, which according to another canon of statutory construction, means that it should be interpreted broadly to achieve its desired effects. See, e.g., Kraft Power Corp. v. Merrill, 464 Mass. 145, 162-63 (2013).

The effect of the SJC’s ruling in Anderson is to give clarity to the measure of damages under Chapter 93A. When such damages are based on an underlying judgment, any post-judgment interest is excluded from Chapter 93A liability.

First Circuit Clarifies Scope of Duty to Defend and Indemnify Under a Standard Form Homeowner’s Policy

In a recent, precedent-setting opinion, the First Circuit Court of Appeals addressed several significant issues involving liability insurance coverage. Sanders v. Phoenix Ins. Co., 843 F.3d 37 (1st Cir. 2016).[1]

As characterized by Judge Selya, the facts of the case begin with “a tragic tale of unrequited love and morph into a series of imaginative questions regarding the coverage available under a standard form homeowner’s insurance policy.” The claims were brought by the plaintiff, as executor of his wife’s estate, pursuant to an assignment of rights, for liability coverage and unfair claim settlement practices under a homeowner’s policy issued to his late wife’s divorce attorney, whom the plaintiff blamed for her untimely death.

The central holdings of the decision are:

  • There is no duty to defend where no lawsuit has been filed against the insured under the policy language at issue, and a Chapter 93A demand letter is not the functional equivalent of a suit;
  • A request for participation in a voluntary mediation does not trigger a duty to defend;
  • There is no duty to indemnify where there is no duty to defend, and also where there has been no final judgment against the insured or settlement agreement signed by the insurer (under the applicable policy provisions);
  • There is no duty to settle under Chapter 93A where there is no duty to defend or indemnify; and
  • Liability is not “reasonably clear” under Chapter 93A, as a matter of law, where the nature of the claim being made against the insured has not been recognized by existing law, but rather is an adventuresome claim not recognized by existing tort law.

The decision, which was featured in Massachusetts Lawyers Weekly, should prove useful to attorneys and parties because it lends clarity to these common issues in liability coverage cases.

SPECIAL DISCLAIMER: Because this case is one in which Robinson & Cole LLP represented the defendant, we reiterate that the intent of this blog is to serve as an informational resource for readers, not advertising for our legal services. Every case is different and the result achieved in the case described above may differ from the result in some other case, which may involve different facts, different applicable law, or a different jurisdiction. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case undertaken by the same lawyer(s). This blog does not constitute legal advice and you should always consult your own lawyer about your own case.

[1] Robinson + Cole lawyers Wystan Ackerman and Jonathan Small represented The Phoenix Insurance Company in the Massachusetts Federal District Court and on appeal to the First Circuit.