The Maine SJC held its every-few-years conference on appellate practice in Maine on May 2. Of course we were there, so here’s the run down.
A big chunk of time was spent on e-filing –when it’s coming, where, how it will work. Privacy is the key issue. Given that state courts are the forum for addressing many sensitive issues relating to the human condition, and with many parties representing themselves pro se, the essentially self-policing approach of the federal system isn’t going to fly. The Maine approach is still a work in progress, so there’s plenty of time to get your two cents in if you’d like. There’s a hearing June 7 in Augusta if you want to say your piece.
Other brief items of note:
- Justice Alexander’s latest edition of his appellate treatise is now at the printer, so keep an eye out to get your copy.
- Make sure you bind your briefs correctly. This isn’t the first conference where I’ve heard the Chief Justice bemoan the failure to obey this rule – it apparently drives her crazy. (She presented a lovely show and tell of a brief pulled together with duct tape – no, that is not allowed.)
- The Court really likes the high school arguments, and the Chief urged those lawyers participating to keep their presentations as lively as possible for their special audience.
- Make sure you don’t mistakenly put the boilerplate 21-day notice at the end of a Motion in the Law Court. If you do, they will give the other side 21 days to respond, instead of the shorter time in the appellate rule.
- The law clerk who spoke recommended using all the space open for you on the Appendix (300 pages) if you want all the Justices to see the document.
- Don’t use all capital letters in your titles if only because spellcheck doesn’t pick up all caps
The program began with an introduction from CJ Saufley, going over the recent changes in the Rules of Appellate Procedure. Once again, the sticking point is the Appendix, and other Justices and the Clerk, Matt Pollack, discussed this issue as well. It MUST BE IN THE RIGHT ORDER. You must leave out prohibited materials – note that Cleaves keeps copies of Appendices for posterity as well as the briefs. NO TRANSCRIPT PAGES IN THE APPENDIX (unless it memorializes an oral ruling). (There’s now a very slim opportunity to stick a page or two in the addendum of a brief.) If the document is a mandatory one for inclusion, put in the whole thing – this means the initiating document and all amendments. The difficulty with an appendix is timing – people don’t always know which discretionary items to include until after the appendix is due (now with the blue brief). Apparently there is some leeway with order on this section of the Appendix, so if the parties agree, as the appellant, you can order and bates stamp the mandatory portion and your discretionary portion, so you can write your brief, and leave the appellee portion to bates stamp and file the Appendix later. Matt Pollack prepared an illustrative table of contents, grouped by the type of document (in the right order), with descriptive titles. Use that.
Next, Justice Gorman covered the record, transcript and motions. She was assisted by the Director of Court Services, who gave a summary of the 5-step process for preparing a transcript.
Justice Jabar covered oral argument. He suggested that you use your allowed 3 minutes of uninterrupted time at the beginning to tee things up. He noted – and other judges have spoken about this point frequently in other conferences – that you should be clear about the exact holding you want from the Court. Regarding exhibits during argument, the views on the Court are mixed; he likes them for maps. Be able to summarize the holdings of important cases in 25 words or less. Have a whiz bang conclusion prepared, again embracing the relief sought.
We then proceeded to Justice Mead and Justice Murray of the Superior Court to talk about e-filing.
Next was Justice Mead, Prof. T.S. Wolff, and Justice Mead’s lead law clerk, C. Daniel Wood, on briefs. They shared the same points we’ve noted previously on this topic. The Professor gave some effective examples as to why while ordinarily you use chronological order for a statement of facts, sometimes a different order might better present your case. She also went over some other effective writing techniques, like stuffing the weak points in the middle and using passive instead of active voice for the nasty things you want to de-nastify, and went over the different styles of questions presented – the traditional one sentence form versus the newer, deep issue format, with a three sentence structure.
We ended with ethics (of course – no one wants you sneaking out early), covered by Justice Hjelm. He first discussed, the frivolous briefs – what to do when your client’s got nothing to raise (the bottom line: the Anders brief approach has not caught on in Maine, so grit your teeth and do your best). In re M.C. provides a road map for child protection cases. Don’t try withdrawing.
We wrapped up with a discussion of the ethical issues surrounding attorney intimidation, especially in the male-female context. A while back, Nan Heald wrote an article in the Maine Lawyers Review providing a long list of examples of Neanderthal behavior of some male lawyers in an attempt to bully newbie young females. The ethical rule on this is still in the works – it looks like the word intimidation isn’t going to be included, but there’s going to be a one hour mandatory annual CLE on harassment and intimidation. The list of what is an ethical violation will mirror the Maine Human Rights Act – sex, race, gender identity etc. Bill Nugent at MAP is working on a program. It’s tricky because some women feel that if they say anything, it will hurt their careers.
In the Q&A session, it seemed (at least to me) that, mirroring Heald’s long list of examples, this is not an isolated issue, and it’s not just a male-female problem. One speaker noted that lawyers scream at you in a hearing, and it’s a problem if the judge doesn’t stop it. The fact that Maine is white, with an old population, also complicates things on the unconscious bias front.
In sum, another good conference, with a nice mix of nuts and bolts and more nuanced topics. One observation on my part is that the audience reflected the changes in the types of appeals now before the Law Court – most of the lawyers present worked for the government, did family law, criminal defense, etc. As we’ve discussed before, the business clientele is migrating to ADR, and the Supreme Court’s ruling yesterday allowing for employers to require ADR of their workers will only increase that movement. The title of this Conference was New Directions in Appellate Practice. E-filing is the major development on the horizon, but the overarching message is keep the process and content clear, simple and concise.