About

In 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.

COVID-19 and Appellate Practice

Holed up here in my home office like many of you, I thought it would be a helpful time to take stock of the current state of affairs in the courts of appeal during this pandemic. As with most of life, COVID-19 has disrupted normal operations, leaving all of us in a state of uncertainty. But here is where things currently stand:

In the Supreme Court, the March oral argument session has been cancelled – a highly unusual step, but one that happened previously with the Spanish flu in 1918. The Supreme Court has also issued a standing order extending some deadlines, including the deadline for filing a petition for cert.

The First Circuit, meanwhile, has posted a notice stating that the April 6-9 sitting has been cancelled. No blanket order has yet issued extending deadlines, however. That may change.

The Maine Supreme Judicial Court has also issued an order

The Maine Constitution Turns 200! Does It Still Matter?

On March 15, 2020, Maine turns 200 years old. For any Mainer, especially history buffs, the bicentennial is an occasion worth celebrating. For any legal beagle, the bicentennial is worth celebrating for an additional reason: Maine’s Constitution is also celebrating its 200th birthday.

The Maine Constitution was adopted at convention on October 29, 1819, approved by the people on December 6, 1819, and became effective on the same date Maine became a state. The Maine Constitution has proven to be one of the nation’s most durable state charters. By my research, only three operative state constitutions are older: those of Massachusetts, New Hampshire, and Vermont. But does the Maine Constitution still matter?

A recent Law Court decision highlights this question. In State of Maine v. Weddle, the Law Court was presented with an interesting search-and-seizure question relating to a Maine statute authorizing law enforcement officers to test the blood of all drivers involved in a fatal, or likely fatal,

E-Filing is Coming, E-Filing is Coming!

Spreading the news that e-filing is coming might not have quite the same importance as the message delivered by Paul Revere and his fellow riders in 1775 – but e-filing is still worth noting. I attended the Maine State Bar Association winter meeting in January, which gave Maine practitioners a sneak preview of the state courts’ new e-filing system, File & Serve. It was an interesting and informative session.

The tentative plan, as attendees were informed, is to begin the process of rolling out e-filing at the end of this year. As many already know, e-filing is likely to be introduced first for Penobscot and Piscataquis Counties. But, of importance for appellate practitioners, it sounds like the court is also considering including not only the Business Court but also the Law Court in the initial implementation.

We are still waiting to see all of the rules surrounding e-filing, but the system that was previewed at the winter meeting appears to be user-friendly and promises

Same Blog, New Author

As loyal readers of this blog already know, Cathy Connors – the former author of this blog and my former colleague here at Pierce Atwood – has moved on to bigger and better things: an appointment to Maine’s Supreme Judicial Court. My hat is off to her for this well-deserved achievement.  Her formidable intellect will be a credit to the bench (and her sharp questions doubtless a scourge to any lawyer who is less than fully prepared!). All of us here at Pierce Atwood will of course miss her inimitable talents and presence.

So what does this mean for you, who have benefitted over the years from this blog? Happily, you should expect Maine Appeals to continue, with posts addressing issues of appellate law and practice in Maine and the First Circuit. But there will be a new voice (and likely more than one, as Cathy leaves big shoes to fill).

So allow me to introduce your new blogger: I’m Josh Dunlap, a partner

The Beat Goes On

So, as some of my loyal readers may have heard, I am off to other adventures. After 11+ years of beavering away on this blog, commenting on “interesting” decisions emanating from the Maine Supreme Judicial Court, it looks like I will now be participating in issuing those “interesting” opinions. Let’s hope those black robes are slimming!

It’s been fun working on this blog these many years – at least for me. Some of you might have grown a little weary about my fascination with Rule 80Bs and 80Cs, and I did sometimes have a tendency to blather on as to certain issues that might have aided insomniacs to get a good night’s sleep. But I have been pleasantly surprised by how many appellate jockeys there seem to be in Vacationland – and elsewhere – reading the blog, and apparently equally fascinated with pondering the many different levels of deference, preservation issues, and other matters scintillating to me/us, but perhaps not the

Ringing out 2019

As our last entry this year before heading off for the holidays, let’s take a look at a recent First Circuit decision in a Maine criminal case with a rare holding that the trial court abused its discretion in an evidentiary ruling, and the error wasn’t harmless. US v. Kilmartin, No. 18-1513 (Dec. 6, 2019). Judge Selya wrote the decision, with Judges Barron and Boudin on the panel. Jamesa Drake represented the defendant on appeal.

As described in the opinion, the defendant’s crimes would land him in the lowest circles of Hell in Dante’s Inferno. He falsely posed as a goldsmith to obtain cyanide, created a Gmail account, and searched out vulnerable people, agreeing to sell them the poison, but really sending them Epsom salts. When one victim tried to kill himself with the substance and failed, the defendant sent him a parcel with the real thing, and he died of suicide. The causes of action were

Judge Grady – Ave Atque Vale

The judge I clerked for, John Grady (ND Ill) died this week. I’ve mentioned him in this blog before (From Ulane to Hively, Woman on a wall). He was a great guy, in many ways.

 In 2015, when he retired from the bench, his former clerks put together a book of letters we wrote to say thanks to him. Here’s what I said: 

It is almost 30 years from when I finished clerking for you – why is it I feel like retiring soon, and you are just doing this now? You must be made of sterner stuff.

I don’t keep my law school or undergraduate diplomas on my office wall, but I have hung with pride the certificate for rendering service as your law clerk.

Thank you for getting me on the right foot at the beginning of my career. You

How much is that college degree worth? Maybe not so much.

Perusing recent opinions, we came upon a bankruptcy case in the First Circuit of some interest, In re: Palladino 17-1334.

Steven and Lori Palladino sent their child, Nicole, to Sacred Heart University, a private Roman Catholic university in Connecticut, whose values, according to its web site, include pursuit of truth, promotion of the common good, and recognition of the dignity and worth of every being. The school “embraces a vision for social justice and educates students in mind, body and spirit to prepare them personally and professionally to make a difference in the global community.” (Sacred Heart University Mission Statement)

Unfortunately, Steven and Lori were also running a multimillion dollar Ponzi scheme at the time. They were convicted of fraud  and the SEC obtained a $9.7 million civil judgment against them. They filed for Chapter 7 bankruptcy, and the trustee sought to claw back $64,000+ in tuition they paid to Sacred Heart for Nicole’s education over a

CHI-TOWN AAAL CONFERENCE – PART TWO

We’re back!

Oral argument

On to a presentation on oral argument from our friend Mark Fleming at WilmerHale – how can practitioners optimize their performances so judges will want arguments?

First, the moot. One point Mark made was the usefulness of having someone there to take notes, since if you are being mooted, you may not be in a position to remember specific takeaways. Another good suggestion was to stop the moot when you’re giving a really bad answer, and to work out the good answer then and there, because otherwise the bad answer might get wired into your brain. The Q&A that followed included a discussion as to how we make mooting less expensive. In keeping with a recent blog entry, the availability of law school programs was supported. Even if a moot is not in the cards, you can probably convince a lawyer buddy to just read the briefs and jot down questions for you.

An

CHI-TOWN AAAL CONFERENCE – PART ONE

I have just returned from a meeting of the American Academy of Appellate Lawyers in my old stomping grounds, Chicago. It was particularly engaging in terms of subject matter (as well as giving me the opportunity to eat a REAL pizza again). Here’s part one of my take-aways.

Storied justice

The first session was about appellate brief writing as storytelling, with the speakers two lawyers who write bestselling fiction in their spare time – Ronald Balson (in private practice, writing historical fiction) and David Ellis (a justice in the intermediate state court of appeals, who writes thrillers with James Patterson). Apparently, they don’t sleep. (Justice Ellis says he gets up and writes from 3:30 am until 7:30 am. Yikes.)

I’ve always thought that the rules for fiction and legal writing overlapped greatly (insert here joke about judges often thinking briefs are fiction). Obviously, there are differences – first and foremost, we must stick to the facts