With the launch of this blog, we seek to discuss issues relating to appeals and appellate law in Maine, including the activities and decisions of the Maine Supreme Judicial Court and First Circuit Court of Appeals relevant to Maine, and other participants in the Maine appellate community.

Bad lawyer

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It takes an awful lot for the Law Court to impose fees, and even then, it is typically only a minimal spanking (e.g. treble regular costs). So you can bet that when the Court awarded $10,000 in attorney’s fees on appeal, the conduct of the attorney at issue there was pretty … special.  Lincoln v. Burbank, 2016 ME 138.

Justice Alexander spells out all the bad behavior in the 31-page decision, and there is a lot of it, so I’m not going to repeat it here.  I did think the mention of binding the brief with “twine” was a particularly nice touch.  (More serious infractions included trying to represent people who didn’t want the lawyer to represent them, making factual assertions not in the record, filing out of time, etc., etc., etc.)

Searching for useful nuggets among the muck, there is one point of note, I think.  There were two sets of appellees,

Public prescriptive easements AGAIN?

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The Law Court has addressed the issue of public prescriptive easements again in Cedar Beach/Cedar Island Supporters, Inc., et al. v. Gables Real Estate LLC, 2016 ME 114.  As with its earlier decision in the Goose Rocks case (Almeder v. Town of Kennebunkport, 2014 ME 139, P18) – upon which we have blogged multiple times (Goose Rock mystery, Goose Rocks again, Back in the saddle, More about agency deference; looming arguments; and youtube, Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone!) the decision in Cedar Beach shows a sensitivity to ensuring that owners of land used by the public are not easily deemed to have lost their right to stop that access through longstanding public use.

Here, members of the public

What’s certifiable?

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It may be the height of summer vacation time, but the Law Court and First Circuit continue to issue decisions, some of note.  Here’s one of interest, in which Judge Lynch parted ways with the reasoning of the majority (Judge Lipez, joined by CJ Howard):  Ms. S. v. Regional School Unit 72, No. 15-1487 (1st Cir. July 15, 2016).

The underlying subject matter is the Individuals with Disabilities Education Act (IDEA) and its interface with a Maine regulation regarding the timing for seeking a due process hearing under IDEA.  But the discussion is all about Maine procedural requirements for rulemaking under the Maine Administrative Procedure Act.

I will spare you the majority’s long discussion of its interpretation (the ruling is a remand for the district court to try again to figure out the answer to the ultimate question whether the rule passed muster or is invalid.)  I also won’t go into the labrynthian and confusing nature of the

SJC appellate seminar (III)

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As you can see, we have a new format/platform. Let’s hope it’s easier to use that the last one.  As always, all comments welcome, cconnors@pierceatwood.com.  Now let’s finish discussing the SJC’s appellate seminar.

We had just finished up with Justices Alexander and Humphrey on jurisdictional issues. Next, Justice Mead spoke about Rules 5-7 on the brief and appendix structure.  After observing that the people attending probably weren’t the offenders, Justice Mead stated that sometimes it appears that attorneys hand off appeals to a junior associate or secretary, who in turn calls the clerk’s office for questions answered in the rules.  If you are the supervising attorney, he said, then supervise.  You should know the rules, and the buck stops with you.

Regarding Rule 9(a) and the standard of review, Justice Mead said this is not the portion of the brief to exercise your advocacy skills. Just set out the standard.

Do not seek to enlarge your page limit simultaneously with filing an

Peter DeTroy, appellate lawyer

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I shall return to my download of the Law Court’s appellate seminar, but first I wanted to weigh in on the recent passing of Peter DeTroy.  Many people have justly noted that he was the consummate trial lawyer.  Let’s take a moment to talk about his appellate talents, too.

SJC appellate seminar (I)

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As we alerted was coming in previous blogs, the Maine SJC held its seminar on appellate issues last Friday.  There were 100 registrants and the conference, with all 7 Justices participating, was chock-a-block with useful material.  Here’s a start on summarizing.

Alan DuBois on briefing

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Following up on my last entry, here is the download from Alan DuBois, the First Assistant Public Defender of the District of North Carolina (so he spoke from the criminal defense perspective and how to draft the appellant brief).  His presentation was excellent and thought provoking, in part because he spoke against conventional wisdom.  Here are some nuggets I found useful: