Monday, April 23, 2012

Close Enough for Government Work

Mildly amusing new and tiny little discovery that will only be of interest to close observers of the Belfast Project subpoenas who enjoy making fun of government lawyers. That might very well be an audience of me, but let's do this thing anyway and call it a party.

When Assistant U.S. Attorney Barbara Healy Smith sent the First Circuit a letter, two weeks later, to say the things she hadn't thought to mention during oral argument over the Belfast Project subpoenas, nobody much understood what she was up to. Writing at Letters Blogatory, lawyer and longtime observer Ted Folkman shrugged that "it must be the silly season in the Belfast Project case."

"I am not sure of the procedural correctness of the government’s letter" Folkman wrote. "The Federal Rules are silent, and the letter is pretty plainly not a citation of supplemental authorities under Rule 28(j)."

Beats the hell out of me what that is, but then here comes my old friend Google with Rule 28(j) of the Federal Rules of Appellate Procedure:
(j) Citation of Supplemental Authorities.

If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
Here's a link to Barbara Healy Smith's letter, in full. It surely doesn't look to me like it cites any pertinent but previously overlooked authorities -- I just see whining. But here's the thing that Carrie Twomey just pointed out to me. If you open the letter in Adobe Reader and click on "properties," you see this:

So Barbara Healy Smith titled her document, which no one apparently perceived or even now perceives to be a Rule 28(j) letter, "Rule 28j letter (with red notations)."

If your letter isn't a Rule 28(j) letter, but you call it one, you're good. That totally covers it. This is why every document I write is titled something like, "Convincing letter to that dude who wants to sue me," or "Letter to my wife to not be mad at all about what I did to the left side of the car." 

And the red notations: Who from?


  1. I'm surprised that the government e-files documents without scrubbing the metadata! I'm also surprised that your server is, apparently, called "yer butt"!

  2. I wondered if anyone would notice that. It allows me to click "yes" in response to prompts that say things like, "Do you want to save this on yer butt?" My mental world is terribly small, is probably the takeaway from that one.

  3. Ted,

    the government is chancing its arm on just about everything it seems. But like BC in its machinations has left a trace! Chris, as always witty and penetrating.

  4. Chris I enjoy slapping around government attorneys and any other attys who proffer immanent arguments. Tis a guilty pleasure. I would suggest that if in fact Delores did make any statements they were made under duress by i intentially face inducement by the reporter to her and the family. I also understand she is mentally ill. Both calling into question both the admissibility and reliability of any statement produced. While I have been litigation for over 23 years in both Federal and State Courts in PA NJ CA it most likely would be inaissable in a competent court. I will however state I am not readily familiar with FRE in MA. Suffice it to say I enjoy your commentary and if the matter was not so serious it would be in the category of the bizarre and laughable.

    1. Thanks, and I'm glad you enjoy it.

    2. Sorry about all the spelling mistakes hope it made sense but I just bought this iPod never had before and it will not let me edit even when I hit edit. I had written a scathing response to Mr Folkman's first post a long time ago with the waiver that I do not know him or his capabilities but he seems to have a different perspective . I just read it again. I have lambasted Niall O'Dowd constantly as i cant under stand how he has received any awards. Throwing out your opinion and stating things incorrectly as fact with no supporting or corroborating evidence is not journalism. I'm on a blackball list but you have been such a breath of fresh air. So much political play here since Niall is in Hilary's cabinet was curious about your views on that situation but since I have come under attack been deactivated from FB A few times with no legitimate response from legal FOR honestly and professionally challenging people
      With written supporting evidence . I refrain from such discussions in this type of forum.