Appellate news

Practice area:

Things are hopping on the appellate front in Maine. 

  1. As we noted would be coming, the Maine SJC has established its Advisory Committee on the Maine Rules of Appellate Procedure.  Yours truly is one of the members, so if there is an issue relating to the existing rules that you’d like reviewed, please let me know.  The first meeting of the Committee is coming up in June or July and Justice Alexander is the liaison so you can bet that things will be going lickety-split.  I welcome any input.
  2. Note that the SJC’s Appellate Practice seminar is coming up Friday in Freeport.  I’m told that a gazillion people have signed up for this program.  Appellate practice must be a hot topic these days.  Yours truly will report for anyone left not going.
  3. Last Thursday I attended the first two parts of the Federal Criminal Appellate Practice Seminar in Portland because they were applicable to all appeals.  As I previously noted, this was a free seminar, and its quality is always high.  (So why everyone doesn’t try to go is beyond me.  You get your ethics credit if you stay and they feed you breakfast.  Such a deal!) 

The program began with Judge Kayatta speaking, and, as always, his remarks were thoughtful and helpful.  Here are some nuggets:

  • He reads about 50 briefs a month (much on his ipad), not including motions, bench memos, and supporting materials.  So the briefs need to be as accessible as you can make them.  The Table of Contents is a critical part of your brief.  It should read like a summary of your argument.  The TOC is the first thing he reads; then he reads the decision below.  Having a good TOC imposes discipline on the writer for precision; also, it’s difficult to have the court find you waived an issue if your brief has a separate section (however concise) with a heading discussing it.
  • Use your addendum appropriately.  Put the statute or regulation at issue in it.  He wants to see it, word for word.  If there’s one document, exhibit etc. that matters, which he said there usually is, then put it in there.
  • Regarding precedent, the Supreme Court is the big kahuna to them; then First Circuit; then comes other circuits, because they want to know if they would be creating a split.  Don’t spend too much time chit chatting about district court decisions.
  • Keep the standard of review in mind when drafting the Statement of Fact.  You don’t want him to be surprised when he reads the other side’s brief.  Tell a coherent story; don’t do a blow by blow, he said, she said.
  • Oral argument makes a difference – changing his view in some way, even if not the result – in 10-15% of the cases.  There’s a larger percentage impact in how the outcome is framed – the breadth of the ruling.
  • Current issues in the criminal law world include (a) mens rea/scienter – the Supreme Court has been returning to Morrisette [take a gander at Judge Kayatta’s recent decision in U.S. v. Ford, No. 15-1303 (1st Cir. Apr. 13, 2016)]; (b) the Supreme Court has also been saying that plain error is not necessarily a death knell; and (c) terms of supervised release are hot – don’t think the First Circuit will just rubberstamp a presentence report seeking intrusive conditions.
  • He approves the CJA vouchers.  He rarely sees people taking too much time, but rather the reverse.  Don’t skimp.
  • Lots of arguments are not getting preserved, leaving the appellate lawyer in the lurch to have to argue plain error.  There needs to be a better interface between appellate and trial counsel, even if it’s just giving the trial folks a checklist. 

Next time I’ll report on the presentation of the second speaker, Alan DuBois, First Public Defender of the District of North Carolina, who also had some helpful and interesting ideas on brief writing.