I have returned from a lovely Viking cruise around the Baltic Sea (gravlax galore!) and while I was gone, the Court issued the new appellate rules. We’ve blogged on them before (Hot off the press – the proposed changes to the Maine Rules of Appellate Procedure) – here are some highlights of the changes.
First, the rules are a comprehensive replacement; out with the old, in with the new.
Second, they are not effective until September 1, 2017.
Third, the Court issued an order that includes a good summary of what’s changed, both in the beginning and after each rule.. http://www.courts.maine.gov/rules_adminorders/rules/amendments/2017_mr_7_appellate.pdf. In a nutshell:
- The statement of potential issues on appeal filed with the notice in a civil appeal is eliminated. This makes sense because it really served no purpose, since the appellant wasn’t held to that list. That said, remember that PUC appeals still require a statement that may have some preservation ramifications under 35-A M.R.S. s. 1320.
- Timing for appeal. The Court is making another effort to convince appellants that they shouldn’t appeal until after post-judgment motions are decided, and with such an appeal after the post-judgment order issues embracing an appeal of the original judgment as well. This has always been the case (at least as long as I’ve been around), but they’re highlighting this point, because when people file a notice of appeal right away, this apparently has caused problems when the trial court then immediately ships up the record, but someone then files a post-judgment motion, and the trial judge needs the record to decide that motion. So the language making clear that the appellant can wait has been re-jiggered in Rules 2B(b) and (c). Also to address this problem, the new rules provide that the record isn’t going to be sent up immediately, but there will be a wait of 28 days (Rule 6) to see if a post-judgment motion is filed. This unfortunately delays everything at the appellate level an additional month, and already the briefing schedule is lengthy for most cases (note that under Rule 7 there are now 14 days for filing a reply, not 10, and the 7/8 week schedule for the principal briefs remains). So you might need to pay more attention to Rule 7(b)(4) for expediting an appeal, if all this time is going to prejudice your client.
- Cross-appeals. Rule 2C(a)(1) clarifies when an appeal must be filed. I’ve blogged on this multiple times (Cross-Appeals again, Alternate grounds support a judgment? Cross-Appeal!, When in doubt, cross it out, Follow up) and I believe, happily, that we are now at the point where state law is consistent with federal law – you only have to file an cross-appeal when you want something in the judgment changed, and not when asserting alternative grounds to support the judgment. Previous case law made it unclear whether you also had to cross-appeal when you didn’t like a finding the trial court made. (See the Restyling Note after Rule 2C.)
- The record. If you do PUC appeals, note Rule 6(d) – the Court wants a printed index to the record and wants the record sent to it searchable.
- Brief length has been cut again – from the few comments filed and other expressions, apparently I’m the only one who was strongly opposed to cuts. We now have a word count as an alternative to the now 40/15 page count, smaller than the federal counterpart (10,000/4500). (See Rule 7A.)
- We now have a formal acceptance of an addendum, i.e. an “attachment” to the brief. (Rule 7A(f)(2).) It’s not the same as the First Circuit addendum – it’s just for attaching a piece of the record that is a linchpin to the appeal, and only up to 3 pages. So this is for the contract provision, transcript section, or exhibit that is the focal point of contention. This, I think, is a useful addition.
- Electronic filing of the briefs – as well as hard copies — is now mandatory. (Rule 7A(i)(2).) We are slowly inching towards electronic filing.
- There’s a new provision (Rule 7A(j) for citation of supplemental authorities. It’s not like the federal counterpart (FRAP 28(j)) in that you can only file one of these before oral argument, but it’s a start for providing a mechanism for citing authority after the briefs have been filed.
- Arm wrestling over the appendix continues. (Rule 8.) There are two basic problems with appendices. First, they contain things that the Court doesn’t think are useful, or are out of context and so not helpful. Second, they have to be filed in time for the parties to cite it, but that means the parties have to know what’s in it by the time the appellant brief is filed. Many ideas were discussed to improve the status quo, and maybe these issues will all go away when everything is electronic, but for the moment, the rule is the appendices are filed with the appellant’s brief, not mid-way between the briefs as previously (so the designation needs to go to the appellee 14 days before the appellant brief is due, with a counter-designation due 7 days thereafter). Note that transcript portions are excluded, except if they embody a challenged ruling. So if you are making a sufficiency of the evidence argument, you don’t include any portions of the testimony in the appendix. This may seem counterintuitive, but the idea is that this kind of claim requires a review of the transcript as a whole, and the piecemeal excerpts of transcripts that the Court was receiving weren’t helpful. The Court gets an electronic copy of the transcript, and they can figure out what they need to look at in it. Note that Court has indicated that enforcement of this rule “will be more rigorously enforced than in the past[.]”
- Extensions of time. Under Rule 10, if you want an enlargement more than 7 days or continuance of argument, then you have to tell the court in your motion that you told your client about the request. The idea is not to have lots of delays, with the client wondering why it’s taking the court so long, when, unbeknownst to the client, it’s because his/her lawyer keeps asking for postponements.