U.S. Supreme Court to Appellant – Time Is On Your Side

We have written previously on this blog about the importance of a timely notice of appeal in the Massachusetts Appeals Court. The issue bears revisiting in the federal courts following the decision by the United States Supreme Court in Hamer v. Neighborhood Hous. Servs. Of Chicago, No. 16-659 (November 8, 2017).

Justice Ginsburg, in her characteristic trenchant prose, introduced the issue in Hamer thusly:

This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment.”

The decision then distinguished between restrictions on subject matter jurisdiction, such as the time limitations imposed by 28 U.S.C. § 2107(c), and “mandatory claim-processing” rules, such as the time limitations imposed by Federal Rule of Appellate Procedure 4(a)(5)(C). Ultimately, the Court ruled that unlike the jurisdictional rules established by Congress, the claim-processing rules that set forth time limitations, such as those found in Rule 4(a)(5)(c), do not implicate a court’s subject matter jurisdiction and can be waived or forfeited.

Hamer involved an appellant whose employment discrimination suit was dismissed by the district court on summary judgment. After the judgment of dismissal was entered, her counsel filed a motion to withdraw and a motion for an extension of the appeal filing deadline, to give the appellant sufficient time to find new counsel for the appeal. The district court granted both motions, allowing a sixty-day extension of the appeal deadline, even though Rule 4(a)(5)(C) confines such extensions to thirty days.

Addressing the issue sua sponte, the Seventh Circuit Court of Appeals concluded that the thirty-day Rule 4(a)(5)(C) time limitation is jurisdictional and the district court’s extension of time beyond that allotment was therefore ineffectual. On that basis, it dismissed the appeal.

The Supreme Court reversed. Acknowledging that earlier opinions of the Court “have sometimes overlooked th[e] distinction” between jurisdictional limitations and claim-processing rules or elements of a cause of action, Justice Ginsburg explained that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” These provisions cannot be waived or forfeited and may be raised at any time, including sua sponte, by the reviewing court.

By contrast, claim-processing rules, which serve to promote the orderly process of litigation by prescribing certain procedural steps at specified times, are not set by Congress and do not invoke the subject matter jurisdiction of the Court and may be waived or forfeited.

Federal Rule of Appellate Procedure 4(a)(5)(C) is a claim-processing rule. It provides that:

No extension [of time for filing a notice of appeal] under this Rule 4(a)(5) may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date when the order granting the motion is entered, whichever is later.”

Significantly, this time limitation does not appear in 28 U.S.C. § 2107(c), which provides that:

(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds—

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.”

The statute does not state how long an extension for “excusable neglect or good cause” may run.

Because Rule 4(a)(5)(C) is the only source of the thirty-day limitation on extensions of the appeal period for “excusable neglect or good cause,” it is not jurisdictional and can be waived or forfeited. Accordingly, the Seventh Circuit erred when it held that the appeal was jurisdictionally barred.

Hamer provides a helpful discussion of the jurisdictional and rules-based authority of federal appellate courts. In this case, the appellant may have avoided the loss of her appeal rights, but the decision also underscores the importance of understanding the appeal process following a judgment entered by the trial court.

The Scope of an Insurer’s Right to Control the Defense – OneBeacon America Ins. Co. v. Celanese Corp.

The scope of an insurer’s right to control the defense of an insured is an underdeveloped issue in Massachusetts case law, which the Appeals Court recently addressed in OneBeacon America Ins. Co. v. Celanese Corp., No. 16-P-203 (Oct. 16, 2017). The decision helps clarify the rights of an insurer when it has offered to provide a defense without a reservation of rights.

Briefly, the insured, a leading producer of acetyl chemical products, was subject to numerous lawsuits involving claims of bodily injury from asbestos and chemicals allegedly contained in its products and facilities. The insured retained its own counsel in those lawsuits for fourteen years, subject to a defense cost-sharing agreement with the insurer that superseded the defense cost provisions of the applicable policies. When the defense cost-sharing agreement was terminated by the insured, the insurer agreed to defend against the underlying lawsuits under the defense provisions of the policies without a reservation of rights. The insurer also sought to assume control of the lawsuits and select new counsel. However, the insured refused to cede control of the defense or replace counsel, alleging that a conflict of interest precluded the insurer’s assumption of control.

In a decision authored by Associate Justice Trainor, the Appeals Court inferred from Massachusetts case law suggesting that when an insurer issues a reservation of rights it relinquishes the right to control the defense, that inversely “when an insurer offers to defend the insured without a reservation of rights, it may retain control of that defense.” Because the insurer in Celanese offered to defend its insured without a reservation of rights, it retained the right to control the defense, including the right to appoint new counsel.

The Appeals Court next addressed the question of whether and under what circumstances might a conflict of interest justify an insured’s refusal to cede control of a defense to an insurer. In considering this question, the Appeals Court borrowed a list of factors from the Texas Supreme Court enumerated in Northern County Mut. Ins. Co. v. Davalos, 140 S.W.3d 685, 688 (Tex. 2004). These factors include:

  • when the defense tendered is not a complete defense under the circumstances in which it should have been;
  • when the attorney hired by the insurer acts unethically and, at the insurer’s direction, advances the insurer’s interests at the expense of the insured’s;
  • when the defense would not, under the governing law, satisfy the insurer’s duty to defend;
  • when, though the defense is otherwise proper, the insurer attempts to obtain some type of concession from the insured before it will defend; and
  • when the defense provided by the counsel selected by the insurer is materially inadequate.

In Celanese, the insured argued that a conflict existed because: (1) the insurer required it to terminate the counsel that had been representing it for fourteen years; (2) the insurer was earlier found liable for delayed payments to the insured on certain claims, which purportedly demonstrated that the insurer would put its own interests before the insured’s interests in controlling the defense; and (3) the insurer and insured disagreed about litigation tactics.

The Appeals Court rejected each of these purported conflicts. As to the first alleged conflict, the right to select new counsel “is inherent in the insurer’s control of the defense as part of its duty to defend.” Thus, the insurer’s decision to exercise that right cannot create a conflict of interest. As to the second alleged conflict, there was no nexus between the late payments and the insured’s contention that the insurer would be unable to fairly evaluate and defend the underlying claims. Finally, as to the third alleged conflict, “disparate viewpoints as to how the defense should be conducted” do not give rise to a sufficient conflict of interest because the “parties still have a common interest in defense counsel providing a vigorous defense.” Moreover, the insured’s concern for protecting its reputation in the underlying lawsuits, which formed the basis for the dispute as to litigation strategy, “was not something [the insurer] was required to insure or defend.”

As a result, the insurer had the right to control the defense, including to select new counsel, and the  insured “lost its right to obtain reimbursement for defense costs when it refused to accept [the insurer’s] defense, offered without a reservation of rights.”

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.

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