Philipson Legal
An Appellate Boutique

Welcome

Philipson Legal provides sophisticated appellate representation to Massachusetts litigants in civil and criminal cases.   

Philipson Legal is the only appellate boutique in Massachusetts that offers the perspectives of both a former Senior Staff Counsel to the Supreme Judicial Court and an appellate litigator who has handled more than 70 appeals. Founder Alex G. Philipson knows when an appeal is worth pursuing and which strategies work best for persuading appellate judges.

Filing an appeal without consulting an appellate practitioner can be costly. See Law firms held liable for frivolous appeals (Massachusetts Lawyers Weekly, May 8, 2014). To learn whether you have a meritorious appeal, and whether the benefits of filing one outweigh the costs, confer with counsel who understands how appellate judges think. Philipson Legal is unique in blending the views of an appellate-court insider with those of a seasoned appellate advocate.

To learn more about how Philipson Legal can help you evaluate your chances of success on appeal—and give you an edge in maximizing those chances—please browse through the site. 

NOTEWORTHY PROJECTS

 In a public-accommodation discrimination case, where a retail store wrongfully denied a patron access because of his use of a service dog, Philipson devised novel arguments for how the patron could intervene in an administrative appeal that had been brought by the store under G. L. c. 30A. 

• In an employment discrimination case, Philipson represented a utility worker in an appeal from a grant of summary judgment to the employer. See Espinal v. National Grid NE Holdings 2, LLC, 693 F.3d 31 (1st Cir. 2012). Philipson argued that the motion judge improperly made credibility determinations in rejecting the employee's claims of disparate treatment and a hostile work environment. Philipson also contended that the judge mistakenly treated the employee's disparate discipline claim as a claim of disparate termination  

• In a medical malpractice case involving the 2002 death of Harvard professor and world-renowed scientist Stephen Jay Gould, Philipson collaborated on an appeal with MacDonald, Rothweiler, Eisenberg. See Shearer v. Mayer, 83 Mass. App. Ct. 1115 (2013). The appeal involved complex issues of the admissibility of scientific evidence. 

• In a $50-million commercial arbitration case concerning the "Big Dig" project, Philipson collaborated with Hinckley, Allen & Snyder, and Todd & Weld on various aspects of an appeal. See Massachusetts Highway Dep't v. Perini Corp., 83 Mass. App. Ct. 96 (2013). The case raised novel issues concerning how to interpret agreements to arbitrate matters of arbitrability. 

• Philipson has written and collaborated on numerous amicus curiae briefs filed in the SJC, on cutting-edge matters of civil and criminal law. For example:
  • Commonwealth v. Santiago470 Mass. 574 (2015) (amicus argued that Massachusetts should recognize target standing, under art. 14 of the Massachusetts Declaration of Rights, to allow a criminal defendant to challenge the seizure of evidence from a third party that the government seeks to use against the defendant; SJC declined to decide the issue, leaving it to be resolved in a future case);

  • Commonwealth v. Russell, 470 Mass. 464 (2015) (SJC agreed with amicus that Massachusetts should not follow the federal model jury charge on proof beyond a reasonable doubt but should follow a modernized version of the venerable Webster charge);
  • Polay v. McMahon, 468 Mass. 379 (2014) (SJC agreed with amicus that a homeowner's video surveillance of a neighbor's property can be an invasion of privacy, under G. L. c. 214, § 1B, where the purpose of the surveillance is to harass);   
  • Wilkins v. City of Haverhill, 468 Mass. 86 (2014) (SJC agreed with amicus that the "recreational use" statute, G. L. c. 21, § 17C, does not immunize a municipality from liability for physical injuries sustained by a parent visiting a public school for a parent-teacher conference, where the parent was visiting the school not as a member of the general public but by special invitation to discuss her child's education);
  • Commonwealth v. Charles, 466 Mass. 63 (2013) (SJC agreed with amicus that, for cases tainted by the Hinton drug-lab crisis, judges have the authority to stay defendants' sentences while their motions for new trial are pending, and that judges should apply the same standards used for motions made under Mass. R. Crim. P. 31, and Mass. R. A. P. 6); 
  • Commonwealth v. Galvin, 466 Mass. 286 (2013) (SJC agreed with amicus that reductions in mandatory-minimum sentences for certain drug offenses, under St. 2012, c. 192, apply retroactively to persons who committed relevant offenses before the effective date of the act but who were not yet sentenced when the act became effective);
  • Alicea v. Commonwealth, 466 Mass. 228 (2012) (amicus argued that proof of actual innocence is not required in an action for legal malpractice arising from counsel's poor performance in a criminal case, at least where the alleged injury is analytically distinct from the conviction itself—e.g., where counsel's error caused the defendant to serve more time in prison than the offense warranted; SJC did not reach the issue because it decided the case on other grounds); 
  • Irwin v. Commonwealth, 465 Mass. 834 (2013) (SJC agreed with amicus that a criminal defendant's eligibility to obtain relief from an erroneous conviction, under G. L. c. 258D, is not limited to where affirmative exculpatory evidence was omitted from the criminal trial, but can arise where the conviction was based on inculpatory evidence that was false; SJC adopted much of Philipson's analysis in its decision);   
  • Commonwealth v. Pacheco, 464 Mass. 768 (2013) (SJC agreed with amicus that sharing one ounce or less of marijuana is not criminal distribution, and that the mere presence of a noncriminal amount of marijuana in the passenger compartment of a car does not justify searching the trunk);
  • Commonwealth v. Bright, 463 Mass. 421 (2012) (SJC departed from its own precedent in ruling that hearsay statements of coventurers can be considered by the jury if, based on evidence independent of the statements, the jury finds a coventure by a "fair inference" rather than by the standard of beyond a reasonable doubt).
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SPEAKING ENGAGEMENTS

June 5, 2014
"Tips and Techniques for Submitting Effective Amicus Briefs"
Presented by the Women's Bar Association of Massachusetts, and the Boston Bar Association
Moderator: Andrea C. Kramer—Hirsch, Roberts, Weinstein LLP
Speakers:
Justice Margot Botsford—Assoc. Justice, SJC
Justice Francis X. Spina—Assoc. Justice, SJC
Neal Quenzer—Chief Staff Counsel, SJC
Alex Philipson—Founder, Philipson Legal

April 24, 2014
"Amici in Appellate Practice"
Northeastern University School of Law
Moderator: Emily A. Spieler—Edwin W. Hadley Professor of Law
Speakers:
Matthew Segal—Legal Director, ACLUM
Jonathan Miller—Chief, Civil Rights Division, Mass. AG's Office
Alex Philipson—Founder, Philipson Legal

January 22, 2014
"Amici in Appellate Practice"
Northeastern University School of Law
Moderator: Emily A. Spieler—Edwin W. Hadley Professor of Law
Speakers:
Nancy Shilepsky—Shilepsky, Hartley, Robb
Sarah Wunsch—Staff Attorney, ACLUM
Jonathan Miller—Chief, Civil Rights Division, Mass. AG's Office
Alex Philipson—Founder, Philipson Legal


PUBLICATIONS 


• Book review of Supreme Ambitions, by David Lat.

• 
Abuse-of-discretion standard gets a makeover. Philipson explains how the SJC has rewritten a century's-old definition of one of the most important standards of appellate review.


• Rethinking Mens Rea for Extreme Atrocity or Cruelty. Philipson proposes revising the common-law elements of first-degree murder by extreme atrocity or cruelty to require proof that the defendant was indifferent to, or took pleasure in, the victim's suffering.  

• Book review of Six Amendments: How and Why We Should Change the Constitutionby John Paul Stevens.

Get a second opinion before appealing a ruling. Philipson suggests that, like getting a second opinion on a medical issue, getting a second opinion about one's prospects of success on appeal can make the difference between making an informed decision and an impulsive one. 

• Philipson thoroughly revised, updated, and expanded Chapter 10, "Standards of Review," of the leading Massachusetts treatise on appellate litigation, Appellate Practice in Massachusetts (MCLE 3d ed. 2011; 1st Supplement 2014). 


When "Big Brother" turns out to be your neighbor. Philipson discusses the privacy implications of video surveillance between neighbors—an issue raised in the case of Jane T. Polay & another v. Joseph S. McMahon (SJC-11460). The SJC concluded, as Philipson had, that video surveillance can violate a neighbor's privacy if done with the purpose to harass, or if it captures images inside the neighbor's home. See Polay v. McMahon, 468 Mass. 379 (2014). 
 

Book review of
Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, by Shon Hopwood.

Not Just the Facts: Commonwealth v. Walczak Tells Prosecutors When to Instruct Grand Juries on the Law in Juvenile Murder Cases. Philipson explains the SJC's groundbreaking decision in Walczak. The SJC established that where the Commonwealth seeks to indict a juvenile for murder, and there is strong evidence of mitigating circumstances, the prosecutor must instruct the grand jury that the mitigating circumstances can reduce murder to manslaughter, or can sometimes eliminate criminal liability altogether.

Will Massachusetts permit taking arrestees' DNA? In Maryland v. King, the U.S. Supreme Court held that where a person is arrested for a "serious offense," the police can take the arrestee's DNA by a buccal (cheek) swab, as part of routine booking procedures, without violating the Fourth Amendment. But Philipson suggests that Massachusetts can provide its citizens greater protection under Article 14 of the Massachusetts Declaration of Rights. 

SJC to revisit erroneous conviction law. In John Irwin v. Commonwealth (SJC-11260), Philipson contended that a criminal defendant should be eligible to seek civil damages for wrongful conviction not only where affirmative exculpatory evidence was omitted from his criminal trial, but also where his conviction was based on inculpatory evidence that was false. The SJC agreed with Philipson's contention, adopting much of his analysis in its decision. See Irwin v. Commonwealth, 465 Mass. 834 (2013).     

• Book review of Young Thurgood: The Making of a Supreme Court Justice, by Larry S. Gibson.

Finally, associational bias to get appellate ruling. Philipson argued that, in Marc Flagg v. AliMed, Inc. (SJC-11182), the SJC should hold that G. L. c. 151B authorizes a cause of action for associational discrimination. The SJC agreed with Philipson's view and held in favor of the plaintiff. See Flagg v. AliMed, Inc., 466 Mass. 23 (2013). 

• Book review of Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan A. Garner. 

SJC to tackle proof for constructive possession. Philipson proposed that the defendant in Commonwealth v. Eric Romero (SJC-11149) was wrongly convicted of gun possession, based solely on his proximity to a gun held by a passenger in his car. The SJC subsequently came to the same conclusion. See Commonwealth v. Romero, 464 Mass. 648 (2013).  

• Book review of In Chambers: Stories of Supreme Court Law Clerks and Their Justices, edited by Todd C. Peppers and Artemus Ward.  

Supreme Court expands 6th Amendment rights in plea bargaining. The article discusses how Missouri v. Frye and Lafler v. Cooper changed the law on when a defendant may be entitled to relief from a conviction based on ineffective assistance of counsel in plea-bargaining negotiations.  

Implications of Supreme Court practice for Massachusetts. Recounting highlights from the 2011 Appellate Judges Education Institute conference in Washington, D.C., Philipson discusses aspects of U.S. Supreme Court practice that reverberate in Massachusetts.

• Book review of Clarence Darrow: Attorney for the Damned, by John A. Farrell.

Help your client by helping the appellate court. Philipson offers ideas about how practitioners can deliver more value to clients on appeal, sharing his perspective as former Senior Staff Counsel to the Justices of the SJC.




Photo of detail from the John Adams Courthouse, home of the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court, by Alex G. Philipson.
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