US Supreme Court

The Primacy Doctrine and Appellate Advocacy

As readers of this blog know, state constitutional interpretation has been a matter of discussion here and at the Maine Law Court over the last few years.  Maine jurisprudence has seen a revival of the primacy doctrine, which directs state courts to resolve state constitutional issues prior to and independently of any federal constitutional issues.  This revival has, in turn, highlighted the need for lawyers to engage in the advocacy necessary to enable the Law Court to engage in meaningful state constitutional analysis.

This is the issue that the Law Court took up in its most recent pronouncement on the primacy doctrine.  In State v. Norris, the Law Court was compelled to find that a criminal defendant had waived an independent claim under the Maine Constitution’s search and seizure provision.  But Justice Connors, writing for the Court, did not stop there.  Instead, the Court carefully explained what is required to preserve a state constitutional claim.


Appellate Preservation and Summary Judgment

The necessity of preserving issues for appeal can be a trap for the unwary, leaving litigants without recourse if they fail to take proper steps to preserve a particular argument.  Near the end of its recent term, the Supreme Court made this requirement slightly less fraught.  In Dupree v. Younger, the Court clarified that a party who wishes to preserve for appeal a purely legal issue resolved at summary judgment need not raise the issue anew in a post-trial motion.

A quick background primer.  In 2011, the Supreme Court held in Ortiz v. Jordan that an order denying summary judgment on sufficiency-of-the-evidence grounds is not appealable after trial.  Most interlocutory decisions are not immediately appealable, and simply merge into the final judgment for appeal after entry of final judgment.  Some interlocutory orders, however, are “unreviewable after final judgment because they are overcome by later developments in the litigation.”  In Ortiz, the Court explained that

A New Experiment In Oral Arguments

Practice area:

For Supreme Court watchers and appellate practitioners, last week brought an interesting development – the Court is changing how it conducts oral argument.  Arguments will now feature both unstructured questioning by all justices and then uninterrupted questioning by individual justices. It will be fascinating to watch how this new approach affects oral arguments in the Supreme Court, and whether it will trickle down to other federal and state appellate courts.

As highlighted at SCOTUSblog (here) and the Appellate Advocacy Blog (here and here), the new format first gives counsel two minutes of uninterrupted time, and then allows for free-for-all questioning by the justices for the remainder of counsel’s 30 minutes of argument.  That is familiar practice; in a new twist, however, each justice in order of seniority then has the opportunity – after the 30 minutes of time has expired – to question counsel individually.  No strict time limit applies to this new segment

All Cleaned Up

Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable.  So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets?  One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case.  But there is another option – and it was just endorsed by Justice Thomas last month.

A little bit of background:  As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).”  The proposal has its supporters, including no less than Bryan Garner, but also its critics.  The approach would improve readability, but might become a crutch that encourages appellate lawyers

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. [UPDATE: The First Circuit has extended deadlines for many filings due