What exactly do you want us to say?

I don’t comment on the substance of matters pending before the Law Court that involve me, but we were involved in an oral argument recently that reminded us of a useful tool in preparing for briefing and argument that is generally applicable, whatever the substantive issue in the appeal might be.

The argument that reminded me of this tool took place in Ross v. Acadian Seaplants.  The substantive issue in the case is whether the public, subject to regulation, can harvest seaweed in the intertidal zone without the permission of the littoral property holders.  We represent the amicus Department of Marine Resources, and had a few minutes of the argument, with Ben Leoni and Gordon Smith representing the parties.  The argument is at the link below.


The useful tool relates to a question that Chief Justice Saufley asked counsel for one of the parties:  “In a sentence, what is the holding you would like

Link rot no more

A few entries ago, summarizing the First Circuit Judicial Conference, we noted how a Harvard librarian explained how attempts were being made to address “link rot” – when opinions cite to a website, and later, that cite disappears (and if not gone, you don’t know if the site has been changed since the opinion was issued/the Court examined it).  The U.S. Supreme Court has a shocking number of decisions with such cites.  See http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html  [We’ll see how long these hyperlinks survive].  On October 24, 2017, the First Circuit decided to make public the linked items cited in its opinions.  http://www.ca1.uscourts.gov/sites/ca1/files/Preserving%20Internet%20Citations%20in%20Opinions.pdf.

The Court noted that since 2011, its library has been capturing any web page cited in a First Circuit opinion, converting it into a pdf and archiving it in a website repository.  As of Nov. 1, 2017, that repository has now been made public.  Additionally, after that date, the pdf is going to appear after the opinion on PACER.  So you

It’s Hamer time

The Supreme Court issued a decision last week made for appellate wonks, in which the American Academy of Appellate Lawyers (where I am a board member) not only filed an amicus brief supporting the position where the unanimous Court landed (AAAL Brief), but got a shout out in a footnote – Hamer v. Neighborhood Housing Services of ChicagoOpinion  (check out footnote 8).

The short takeaway is:  when Congress sets a deadline by statute, it’s jurisdictional, but when the time limit comes from a court rule, it’s not jurisdictional.  Hence, FRAP 4(a)(5)(C), limiting the extension of time to file a notice of appeal, isn’t jurisdictional.

28 U.S.C. s. 2107 says a notice of appeal must be filed with the court of appeals within 30 days after the entry of the judgment, order or decree, but that the district court may extend the time for appeal on a showing of excusable neglect or good cause, as long

Calling all appellate wonks – notices of appeal and electronic filing in state court

A reader has alerted me to a dandy notice of appeal issue now pending before the Law Court involving the apparent clash of two civil rules – catnip to appellate jockeys!

The case is Perry v. Dean, Docket No. BCD-17-412.  Attached is a copy of an order reinstating the appeal that presents the issue.  (Order Reinstating Appeal)

To fill in the gaps, the appellant filed the notice of appeal with the Business and Consumer Docket (BCD) by e-mail pursuant to M.R. Civ. P. 139 on the final day of the appeal period, but the paper copy with the appeal fee check did not arrive at the court until the following day.  Justice Gorman dismissed the appeal as untimely, but on motion by the Appellant reinstated the appeal, as reflected in the attached order, with instructions that the parties shall brief whether the appeal is timely given the provision of M.R. Civ. P. 5(f) that a filing shall

No sham, agreed; but as to why …..

One area of law I find of interest, given its First Amendment grounding, is the Noerr-Pennington doctrine – the protection of the right to petition from antitrust liability.  There’s a new First Circuit decision discussing the sham exception to that doctrine, under which an antitrust suit is allowed to go forward based on the defendant’s petitioning activities.  Puerto Rico Telephone Co., Inc. v. San Juan Cable LLC, No. 16-2132 (1st. Cir. 2017).  While, as the caption reflects, the case involved Puerto Rican parties, the trial court decision was issued by Maine’s own Judge Woodcock, sitting by designation.  His decision that the exception did not apply was affirmed in an opinion written by another Mainer, Judge Kayatta (on a panel with Judges Torruella and Barron).

The facts are simple – “not eager to face competition,” the defendant filed a gazillion petitions in Puerto Rican and federal courts and other tribunals to fend off an

The First Circuit Judicial Conference

I am now back from the First Circuit Judicial Conference, held every other year, and this time in Maine.  The juxtaposition of the content of this conference with the AAAL conference I blogged on last time presents an interesting perspective.

First, here is a very quick rundown of the events:

  • Chief Judge Howard noted that ex-Pierce Atwood-ite Judge Kayatta was the primary programmer, and as always, Judge Kayatta did a masterful job.  After a pretty harrowing report on the status of things in Puerto Rico, the first speaker was Erwin Chemerinsky, who attended my old alma mater, Northwestern, as an undergrad and who is now Dean of Berkeley School of Law. Every year, he prepares a very nice summary of the past year’s doings in the Supreme Court.  The 2016 term was a little different, given that there were only eight justices, but he still managed to glean interesting developments.  I appreciate his summaries greatly because they are not only concise, but clear

Back from the Future

I have returned from The American Academy of Appellate Lawyers’ conference on the future of appellate practice, leaving San Francisco just before the fires put an orange glow in the sky. While I was there, the weather was terrific and clear, with the Blue Angels flying overhead in a spectacular display. As reported by the program participants, the future of appellate practice may not be quite as bright. If you are a glass half-empty person with a vested interest in the status quo, it’s pretty darn bleak. If you are a glass half-full person with no legacy advantages, then the future is simply different than it has been, with upsides if you think outside the box.

To set the stage: we had sessions with judges and in-house counsel (heavy hitters from Schwab, Sony, Facebook and The Gap). Most interestingly, the judges of the Ninth Circuit, trial and appellate level, were polled on their views, and the anonymous results shared. While the title of the program focused

The future is in San Francisco

Next week I am off to the biannual meeting of the American Academy of Appellate Lawyers in San Francisco, and the program looks great.  A gaggle of in-house counsel will be discussing the future of legal practice, taking a snapshot of 2027.  Then law school representatives will speak about what they are doing to meet the needs of that future, and making sure students are getting trained in appellate practice, now that it has become an accepted specialty field.  Then panelists are going to talk about suggested changes in the Federal Rules of Appellate Procedure, and then, more generally, spearheaded by the Chief Judge for the Ninth Circuit, the future of the federal appellate courts.  We wrap up with a session on access to justice, on recent developments in that arena.  As always, your intrepid reporter will provide a full download.

As our regular readers know, the last AAAL meeting was held in Boston.  The last issue of my AAAL Appellate Advocate has

2017 statistics

Practice area:

We last reported on the Maine court statistics in this blog entry – http://www.maineappeals.com/still-here/ – covering 2012-16.  The 2013-2017 period has now been posted (the FY ends June 30).  The 2017 numbers reflect a continuation of the trend we commented upon in our discussion of the 2012-16 period:  the total number of appeals are declining, with a big drop in civil commercial appeals. http://www.courts.maine.gov/news_reference/stats/pdf/year-trend/law-court.pdf

More specifically, the total number of civil appeals went down from 478 to 430 from FY16 to FY17, while criminal appeals declined from 174 to 160, so the total number of appeals went down from 652 to 590.  Worker’s comp appeals increased from 12 to 18.  80B and 80Cs went down from 28 to 24, probate halved from 27 to 13, and “general civil” went down from 150 to 134.  Family law appeals basically held steady.  

The same trends seem to be on the horizon, if you look at the Superior

Judge Posner and Mary Ann Lynch, Esq.

Practice area:

There are two names that have probably never been juxtaposed before.  One is a judge on the Seventh Circuit Court of Appeals; the other Government and Media Counsel for the Maine Judicial Branch.  What do they have in common?  They are both retiring!

Mary Ann Lynch

After serving in this position for nine years, as of January 1, she is off to other things (running for office!).  It will be a big loss to the Court.   She was an invaluable resource, interfacing with the public, the Legislature, and the media, and will be sorely missed.  Good luck, Mary Ann!

Richard Posner

After 35 years on the bench, Judge Posner abruptly retired.  Here’s an exit interview with him – “An Exit Interview With Richard Posner, Judicial Provocateur”, The New York Times.  As he explains here, his immediate decision to leave the bench was precipitated by the lack of interest his colleagues on the bench showed to