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.

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.

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.

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.

The Massachusetts Appeals Court recently decided two issues of first impression in a case arising out of a mediated settlement gone bad. See ZVI Construction Co. v. Levy, 90 Mass. App. Ct. 412 (2016) (“ZVI”). The court determined that there was no fraud exception to a written mediation confidentiality agreement, and that one party in a joint representation cannot unilaterally waive the attorney-client privilege.  An issue that received less acclaim, but which is essential to any practitioner considering an appeal, was the court’s discussion of the timeliness of a notice of appeal under Massachusetts Rule of Appellate Procedure 4.

In ZVI, the appellant filed a noticed of appeal after all claims against the primary defendants were dismissed.  However, claims against other defendants remained, meaning that final judgment had not entered. Accordingly, ZVI’s notice of appeal was premature. This procedural defect came to light when the Appeals Court raised the issue at oral argument. The court allowed the parties to return to Superior Court to file a joint motion for entry of separate and final judgment under Mass. R. Civ. P. 54(b).  After separate and final judgment entered, ZVI should have filed a new notice of appeal; it did not. The Appeals Court noted that ZVI failed to make good on its second chance by not filing a new notice of appeal after separate and final judgment entered. Therefore, the case was not properly before the court. Nonetheless, the Appeals Court chose to breathe life back into the procedurally deficient appeal to resolve the important and fully briefed issues.

Continue Reading Not Quite a Final Judgment: Steering Clear of the Perils in Filing a Notice of Appeal

I recently attended a presentation by futurist Michael Rogers that sparked me to think about what the courtrooms of the 2020s might look like. According to Rogers, one of the next big advances in technology will be augmented reality devices, such as smart glasses. Google previewed that with its “Google glass” product, which was unsuccessful but probably because it was before its time. The technology will be able to provide you with a screen within your field of vision that will display content visible to you if you are wearing the glasses, but not others.

This may take litigation practice to the next level. Earlier this week I argued a case in the First Circuit. In preparing for such an argument, we all try to read many cases and pack as much information as possible into our memory. Five or ten years from now, more or less, a lawyer arguing a case might well be able to use this technology to aid his or her memory, so that if a judge asks during the argument about a particular case, your notes about that case, the key section of that case, and/or a thought about that case conveyed by your co-counsel may appear on screen in your field of vision, assisting with your real time response and augmenting your own memory. To be most effective, the computerized system would need to itself understand the question being asked and instantly display the relevant information. The same type of information would be displayed automatically if a question were asked about a particular aspect of the appellate record. A tech-savvy judge might have the same type of information automatically appear on a screen in front of him or her, perhaps along with another question suggested by his or her law clerk or a thought conveyed by another judge on the panel. In essence, human memories will be supplemented and collaboration enabled, in real time, by technology, perhaps taking the practice of law and judging to the next level. We still may not all have the “total recall” that Chief Justice Roberts had in his days as an advocate, and there still will be plenty of human expertise and skill involved in deciding how to use the information made available in one’s field of vision, but technology may make lawyers better advocates and judges better at judging as well. And some of us may be getting to the courthouse in our autonomous vehicles (flying like the Jetsons may take another decade or two beyond that). That is unless video conferencing becomes so close to being physically present that travel to the courthouse becomes a thing of the past.

Lawyers with little or no experience in the Massachusetts Supreme Judicial Court may not be familiar with the two routes to review by the SJC, and how the chances of obtaining review can differ significantly between the two procedures. An application for direct appellate review, sometimes abbreviated as DAR, asks the SJC to hear a case before it has been heard and decided by the Appeals Court. An application for further appellate review, sometimes abbreviated as FAR, asks the SJC to review a case that has been decided by the Appeals Court. One fact that some Massachusetts lawyers do not know is that the SJC tends to review more cases on DAR than it does on FAR.

Direct Appellate Review: Rule 11 of the Massachusetts Rules of Appellate Procedure explains the procedure for seeking direct appellate review. Any party can apply for DAR within 20 days after an appeal is docketed in the Appeals Court. The rule requires that the appeal present: “(1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court.” Not every appeal satisfies one or more of these criteria, but if your case does, you may have a strong case for obtaining direct appellate review. The SJC has tended to allow applications for DAR at a substantially higher rate than applications for FAR. An application for DAR is allowed if two or more justices of the SJC, or a majority of the justices of the Appeals Court vote to grant DAR. But if your case potentially qualifies for DAR, you are not required to seek it – you may allow the case to proceed through the Appeals Court and, if you do not prevail there, seek FAR. If an application for DAR is denied, that does not preclude seeking FAR, although it might signal that the SJC is not likely to hear the case on FAR.

Further Appellate Review: Further appellate review is governed by Rule 27.1 of the Rules of Appellate Procedure. An application for FAR must be filed within 20 days after the date of the rescript of the Appeals Court. The standard is not as narrow  – “[s]uch application shall be founded upon substantial reasons affecting the public interest or the interests of justice.” An application for FAR will be allowed if three justices of the SJC or a majority of the justices of the Appeals Court vote in favor of FAR. This requires one more vote on the SJC than an application for DAR. In practice, FAR is allowed more sparingly.

Strategic Considerations: If your case arguably fits the requirements for DAR, strategy and cost may factor into deciding whether to seek DAR. If there is Appeals Court precedent helpful to you, it may be preferable to have your case heard first in the Appeals Court where the panel will be feel more bound by that court’s precedent, even if it is not directly on point, as opposed to the SJC, which can do what it pleases with the lower court’s precedents. The Appeals Court is often perceived as less inclined to make new law or take the law in a new direction. If, however, the case or the issue presented is important enough that it seems likely the SJC will hear the case on FAR, or you need the court to take the law in a new direction, you may be better off seeking DAR so that you save your client the considerable cost of briefing and arguing the case twice, and reach a final result sooner. Another strategic factor is that if your case is heard by the SJC, you know who your panel will be, as the full SJC hears the case, unless there is a recusal. On the Appeals Court you could be assigned many different possible panels.

It is relatively rare that an appellee will seek DAR, although the rule permits it. When you have won in the trial court, you rarely want to present the appellate issue(s) as novel or of broad public interest in an application for DAR. One exception is where you know the case is likely headed to the SJC one way or the other, and your client would rather achieve finality sooner.

For Massachusetts lawyers not familiar with the intricacies of DAR and FAR, consulting appellate counsel may be helpful in developing the best appellate strategy for your case.

On June 7, 2016, the Appeals Court heard oral argument for Harvard Climate Justice Coalition v. President and Fellows of Harvard College (AC 15-P-0905). Harvard Climate Justice Coalition, an unincorporated association of students at Harvard University (“Students”), appealed from a Superior Court judgment dismissing their action for a permanent injunction requiring the President and Fellows of Harvard College and Harvard Management Company, Inc. (the company that manages the endowment funds) (collectively referred to as “Harvard”) to divest the University’s endowment of investments in fossil fuel companies. The Students allege that these investments contribute to climate changes which adversely impacts their education and will adversely impact the University’s physical campus in the future. The Students claim that “the harms of global warming resulting from investments in fossil fuel companies constitute mismanagement of the charitable funds in the university’s endowment.”  The Students also attempt to assert the rights of “[f]uture [g]enerations” to be free of what the Students refer to as the “[a]bnormally [d]angerous [a]ctivities” of those companies, and proposed a new tort of “[i]ntentional [i]nvestment in [a]bnormally [d]angerous [a]ctivities.” Both the Appeals Court and Superior Court admired the Students’ fervent and articulate advocacy, but nonetheless, the Courts are unable to legally grant the relief the Students seek.

The Students claim that the “burning of fossil fuels results in the emission of greenhouse gases that become trapped in the atmosphere . . . [and] accumulate . . . [resulting in] climate change[, which causes] physical changes to the Earth’s ecosystems” and results in “deleterious geopolitical, economic, and social consequences.” The Students advocate that Harvard’s investments in fossil fuel companies breach Harvard’s fiduciary and charitable duties to uphold the University’s “special obligation and accountability to the future, to the long view needed to anticipate and alter the trajectory and impact of climate change.” The Students want the Court to order Harvard to immediately sell its direct holdings in fossil fuel companies and to begin divesting its indirect holdings in those companies. Only on rare occasions, however, are those other than the attorney general permitted to challenge the management of charitable funds. The Students cannot demonstrate “that they have been accorded a personal right in the management or administration of Harvard’s endowment that is individual to them or distinct from the student body or public at large.” The Students also cannot show that the investments had impacts that interfered with their personal rights. The Students therefore do not have standing to bring these claims before the Court.

The Students also attempt to “assert the rights of future generations to be free of what they call ‘[i]ntentional  [i]nvestment in [a]bnormally [d]angerous [a]ctivities,’ referring to that count as a tort claim.” This type of legal action has not been recognized by any court in any jurisdiction. Further, the Students did not provide any recognized legal principle to support “their unilateral assertion to represent the interests of future generations.” “[I]f the individual Students may not maintain the action on their own behalf, they may not seek relief on behalf of a class.” The Appeals Court therefore agreed with the decision of the Superior Court to dismiss the lawsuit brought by the Students.

Addressing an issue of first impression, the Appeals Court recently held that an employer who fails to maintain a workers’ compensation policy in violation of the Massachusetts Workers’ Compensation Act, G.L. c. 152, et seq., is automatically debarred from bidding or participating in any state or municipal funded contract for three years. New England Survey Systems, Inc. v. Department of Industrial Accidents, 89 Mass. App. Ct. 631 (2016) (“NESS”).

For employers who rely on state contracting to conduct their business, the three-year debarment is a severe sanction and a strong incentive to comply with the statute. The plaintiff in NESS was unaware that its workers’ compensation policy had lapsed. It reinstated the policy the same day it received a stop work order from the Department of Industrial Accidents, but nevertheless was held subject to the non-discretionary three-year ban.

The legal dispute in NESS turned on the placement of a single comma. Section 25C(10) of the statute provides, in pertinent part:

…an employer who fails to provide for insurance or self insurance as required by this chapter or knowingly misclassifies employees, to avoid higher premium rates, will be immediately debarred…

The issue presented to the Appeals Court was whether the phrase “to avoid higher premium rates” requires the Department to prove that the employer’s failure to provide the required insurance was motivated by a desire to avoid higher premium rates.

Applying the “last antecedent rule” of statutory construction, the plaintiff argued that the placement of a comma after “employers” separating the modifier “to avoid higher premium rates” from the two antecedent clauses (“who fails to provide for insurance or self insurance as required by this chapter or knowingly misclassifies employees”) suggested that both antecedent clauses were qualified by the modifier. Such an interpretation would require the Department to prove that an employer who “fails to provide insurance” was motivated by a desire “to avoid higher premium rates.”

The Appeals Court rejected the plaintiff’s reading of the statute, siding instead with the Department’s interpretation that the modifier “to avoid higher premium rates” qualifies only the immediately preceding antecedent clause (“knowingly misclassifies employees”). Such an interpretation compels debarment any time an employer fails to obtain the statutorily mandated insurance, regardless of the employer’s reason for non-compliance.

To support its interpretation, the Appeals Court explained that the workers’ compensation statute is remedial and must be interpreted broadly to accomplish its purpose to protect workers. The court also relied on its analysis of the legislative history of the statute, in particular the 1991 amendments, which first implemented the debarment penalty as part of an effort to address the statute’s failure to meaningfully reduce the cost of insurance.

Thus, the NESS case, in addition to being a cautionary tale for Massachusetts employers, is a helpful example to appellate lawyers of the various canons of statutory construction and the use of legislative history that Massachusetts appellate courts will consider in the process of statutory interpretation.

Charles_Fried_at_Harvard(2)In Part I of our interview with former Supreme Judicial Court Associate Justice Charles Fried, he offered advice to Massachusetts appellate lawyers on brief writing and preparing for oral argument. As promised, in Part II, Fried shares some examples of appellate advocacy drawn from his own practice.

Duane Reade Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384 (2d Cir. 2005), involved a claim for business interruption coverage arising from the destruction of the World Trade Center by terrorists on September 11, 2001. Fried represented the insurer in the appeal to the Second Circuit. At oral argument, Fried used a metaphor that he believed helped capture the panel’s attention. “What the plaintiff has done,” he argued, “is place all its eggs in one basket…but the basket has a hole in it.” The strategic use of metaphors like this, Fried believes, is important in order to paint a picture for the judges.

However, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), Fried offers a cautionary example of how your own metaphor can be used against you. In an attempt to minimize the impact of overruling prior precedent, Fried, arguing to the United States Supreme Court on behalf of the Justice Department, suggested to the justices that all they had to do was “pull the thread on this one.” Opposing counsel, Frank Susman, seized on that language in rebuttal: “It has always been my personal experience that when I pull a thread, my sleeve falls off.” Fried cites this as an example of how an attentive appellate advocate can turn an opponent’s argument against them.

Directing our attention back to Massachusetts appellate practice, Fried explained how the role of oral argument changed during his tenure as an Associate Justice on the Supreme Judicial Court. When Fried was first appointed, only the reciting justice would receive the full briefing in advance of oral argument. The other justices received a memorandum summarizing case. This resulted in a colder bench than what we are accustomed to today. During his tenure, Fried made it his practice to request the full briefing in advance of oral argument. That trend took hold with the other justices, and as a result, oral argument soon began to look a lot more like it does today, where advocates often recite only the first few sentences of their prepared remarks before being peppered with questions from the bench.

Photography by Matthew W. Hutchins, some rights reserved.