Yes, we took a little blogging hiatus while I was vacationing on the Jersey shore. (Here's hoping that there's some shore left after the upcoming storm.)
There were two important decisions from the Maine SJC earlier this week on insurance law and estoppel against the government, respectively, but before I blog about those, here's a report on the District of Maine Judicial conference, yesterday and today. These are just a few highlights, relevant to appellate practitioners. While it's a trial court level conference, there are always nuggets of info imparted that are useful to the appellate practice.
We opened with CJ Lynch warning of serious budget cuts with sequestration. If cooler heads prevail, and we don't fall off that cliff, then from our district's point of view, CJ Woodcock said things are looking pretty good – with the court construction finishing and two jury-viable court rooms ready up in Bangor and six judges, civil trial cases should be much easier to schedule and things should get moving nicely.
Also on the state of the civil docket, CJ Woodcock reported that a big leap in social security cases in 2009 and 2010 has retreated. MJ Rich said that he thought the current lull was the eye of the storm, because there's an administrative delay going on, after which time more cases will be unleashed. (Others tell me that there's just no economic viability any more in appealing ALJ decisions.)
We continue to hover in the single digits for any civil trials, let alone jury trials. MJ RIch said that one reason why this is so is because 40% of the docket consist of "non-traditional" cases that rarely go to trial – aside form SSI, this includes ERISA, IDEA, forfeiture cases, student loans, bankruptcy appeals, FTC and habeas cases. From an appellate perspective, these are all the types of matters toward which appellate lawyer skills can be applied. In many ways, directly or indirectly, they are appeals.
One interesting statistic seemed to be that more cases filed in Maine go away before any court action than the national average, then fewer go away during the discovery phase than the national average and then higher again than the national average go to trial (which is startling considering how few go to trial here). What does this mean? Your guess is as good as mine.
On the F.R.Civ.P. 56(h) front, the pilot pre-filing conference continues; Len Langer reported on ongoing surveys about the requirement, the results of which are "mixed." Only 22% of those asked to respond in the surveys have, so if you've been asked, you should say something.
There were reports on the Federal Court Jurisdiction and Venue Clarification Act, the latter venue issue Gerry Petrucelli made as interesting as possible (i.e. not much). Just read the rule and good luck with open questions of law.
There was also a report from Alison Denham and MJ Kravchuk on the amendments to the rule on experts, which only confirms my happiness in focusing on appeals and not having to deal with discovery. My takeaway was still be very, very careful with your experts and assume everything is discoverable. Better safe than sorry.
The final part of the break out session on civil practice was about best trial practices and federal v. state court. David Webbert talked about the former topic (after we of course first heard a brief version of what he characterizes as his "rant" against summary judgments). He noted several points that I think have appellate counterparts, loosely translated.
For example, he said that depositions of adverse witnesses should always be videotaped (it's not that pricey), and are effective in use at trial for impeaching, etc. The appellate related counterpart here, is, I think, the usefulness of graphics, photos etc., embedded in briefs themselves, and, more broadly speaking, the general importance of showing, not telling, whenever possible. Just as it's more effective actually to show the snippets of adverse witnesses contradicting each other and themselves, so also an appellate brief's statement of facts in particular shouldn't be characterization, but rather what appears to be straight reporting of facts (strategically arranged).
Similarly, he talked about the usefulness of focus groups and mock trials. What's the appellate counterpart? Mooting oral arguments, for one thing. This is always a good idea, and as he says, not necessarily that expensive. More broadly, it's always good to try out your arguments, whether they are going on paper or in oral argument, on as many people as you can. And really, one of the values of bringing in an appellate lawyer is to bring a fresh perspective to the case – basically a new and important focus group member. Buried in this point is what I think is a really important message – you have to understand other perspectives and the other side, in order to improve the articulation of your own side. Too often minds get closed as to the other side – we scoff and reject it out of hand. The appellate judge is going to look at that other side seriously, however, so you should, too. It doesn't mean you are drinking the Kool-Aid – it just means you are getting a better handle on your potentially weak points, which those appellate courts can sometimes lock onto with pesky radar-like powers.
Webbert also said that you must always tell a story ("narrative is king"), and the tone should be a conversation with equals, not talking to the jury audience as beneath or above you, but making that audience feel smart. This is absolutely translatable to appellate arguments. Every brief should be a well written story. A respectful, conversational tone is what you are looking for.
Webbert also talked about the "reptilean" factor – to make the jury think that horrible things will happen to them personally if they don't vote in your favor. To me, this translates to the importance of identifying to the appellate court the implications of their rulings. Also a part of this point is making the abstract personal. Be concrete, giving actual, realistic factual scenarios. Don't just argue "floodgates" like Chicken Little in your argument; instead, give a very specific and logical hypothetical – or even better, if you can, show your hypothetical to be true from existing case law.
In sum, almost all these good persuasion tips for trial are useful in multiple contexts, including appeals.
Finally, Melissa Hewey and PA's Peter Culley talked about state versus federal, and jury versus non-jury trials, and had a couple of interesting viewpoints. For example, Melissa Hewey said that she generally preferred federal court unless the client really needed an early stage decision, which meant that early state mandated mediation might be helpful. (Remember, no mandated mediation with 80Bs and 80Cs, which makes sense for a flock of reasons). She also opined that looking at her own data, state cases can, perhaps counterintuitively, cost more than federal cases, because of the cost of delay in the state court (after that mediation), and the need often to prepare for trial multiple times, as the civil trial keeps getting postponed. And e-filing is always a plus.
Also perhaps counterintuitive, Peter said that a nonjury trial can be more expensive than a jury trial, because of all the post trial work and delays after a bench trial. While almost all of the work is frontloaded with jury trials, with bench trials, after the trial, there's always briefing, waiting for the transcript, submitting proposed findings etc. He noted one bench trial where the trial was in November and the decision didn't issue until the next March.
From an appellate perspective, whether you'd like a jury or non-jury trial below depends on a lot of factors, but given the lack of trials that are taking place now, the one cry in the wilderness I would make is that if a jury trial is actually going to go forward, then it can be very, very helpful to have an appellate lawyer around to help with preparing jury instructions. The art of the jury instruction is becoming a lost art, I think, at least in the civil context. An important and useful task for an appellate lawyer at the trial level is to help preserve objections. If the trial lawyer doesn't do the right thing in proferred jury instructions, then preservation of some arguments can go right out the window.
In sum, another good conference, with useful discussions.
Next, those two significant SJC decisions.
