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Last year marked the 25th year on the bench for Judge Bruce M. Selya of the 1st U.S. Circuit Court of Appeals. One of the nation’s most productive jurists, Selya has authored more than 1,250 federal opinions in his career. Among practitioners, however, he is best known for his erudite and arcane vocabulary, which has provoked frequent head scratching by counsel. To assist the lawyers who appear before Selya, or who are required to interpret his opinions, here’s a compendium of some memorable Selyaisms, selected with input from his former clerks. Asseverate. One might think that “asseverate” means to cut off a person’s head or limbs. Actually, it means to declare, aver or affirm. Selya has remarked on the parties’ asseverations in almost 700 decisions. Crapulous. To assist me in performing my duties in Selya’s chambers, I purchased a “Word-a-Day” calendar. My co-clerks and I then tried to see who could successfully plant a word-of-the-day in a published Selya opinion. “Crapulous,” meaning stinking drunk, was a calendar word that fit perfectly into a dram shop case, where a local bar had allegedly breached its duties by serving a visibly crapulous driver. Defenestration. Don’t walk past an open window if Selya is inside writing an opinion: He is liable to defenestrate anything and everything. Items thrown out the window in Selya opinions include speedy trial claims, punitive damages awards, arbitral awards, claims of co-fiduciary liability and laws that unduly favor in-state interests. The latter, Selya has noted, “routinely will be defenestrated under the dormant commerce clause.” Dehors. If your evidence is dehors the record, don’t try slipping it into a brief to the 1st Circuit. Encincture. We all know that district judges have discretion. But where do they keep that discretion? The answer is, in an encincture. If the district court doesn’t push its discretion out into the cruel world beyond its encincture, an affirmance should follow. Exiguous. If Selya calls your evidence exiguous, it means your client is going to lose the appeal. Paint the lily. The judge instructed me specifically that “one doesn’t gild a lily, one paints it.” Selya has painted more than 100 lilies in his opinions, but has gilded only one (and he made clear that he was quoting another judge). Perlustration; perscrutation. Perlustration and perscrutation are synonyms; they describe what the appellate court carefully does to the record before ruling against you. Philotheoparoptesism. Philotheoparoptesism refers to the practice of disposing of heretics by burning them or boiling them in oil. Another judge challenged Selya to include this word in a decision, which resulted in its sole reported usage (in secular courts, at least). For the record, Selya declined to consign a misguided prosecutor “to the juridical equivalent of philotheoparoptesism.” Repastinate. To repastinate means to plow the same ground a second time. When considering appeals that raise previously decided issues, Selya and his colleagues have come down firmly and repeatedly on the side of “no repastination.” Rodomontade. A frequent image in Selya’s opinions is the criminal snared by his own rodomontade, meaning an extended boast or brag. In civil cases, Selya is responsible for framing the evidentiary standard under which, on a motion for relief from a judgment, courts need not credit “bald assertions, unsubstantiated conclusions, periphrastic circumlocutions or hyperbolic rodomontade.” Salmagundi. If you serve Selya a salmagundi of reasons, facts, theories, claims or arguments, don’t expect him to search through the mess for pearl onions. Sockdolager. A sockdolager is a final, decisive blow. Selya’s published opinions deliver almost 60 sockdolagers, which is more “sock” than one finds in the decisions of the rest of the federal judiciary. Tenebrous. When the law is tenebrous or murky, the 1st Circuit will elucidate it. Thaumaturgical. The 1st Circuit takes a dim view of magical arguments, or what in one opinion Selya called “thaumaturgical feat[s] of rhetorical prestidigitation.” Ultracrepidarian. “Ultracrepidarian” means beyond the bounds of one’s knowledge or competence. When the 1st Circuit tells you that going further would be ultracrepidarian, it’s a safe bet you’re near the final page of the decision. Vaticinate. This is what a federal court does to determine state law under the Erie doctrine. It’s not an “ Erie guess”; it’s a vaticination. “We need go no further.” This signature phrase is contained in more than 1,000 Selya opinions. After 25 years, despite such repeated cautions, it’s encouraging to see that Selya keeps going further. Frederick A. Brodie is a litigation partner in the New York office of Pillsbury Winthrop Shaw Pittman. He served as a law clerk to Judge Bruce M. Selya in 1988-1989.

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