I shall return to my download of the Law Court’s appellate seminar, but first I wanted to weigh in on the recent passing of Peter DeTroy. Many people have justly noted that he was the consummate trial lawyer. Let’s take a moment to talk about his appellate talents, too.
As far as I can tell from Westlaw records, he argued about 20 appeals before the Law Court, starting in 1973, and about half that many in the First Circuit. Looking at the list, two points struck me.
The first is the breadth of subject matters. It’s a microcosm of the type of practice a litigator in demand would have in Maine over this time period, before specialization. The state appeals run the gamut – family law, tort, contract, worker’s compensation, insurance, and criminal defense. The federal appeals involve RICO, defamation, civil rights, the Robinson-Patman Act and torts.
Second, two appellate decisions I’d identify as particularly notable or illustrative are SC Testing Technology Inc. v. Department of Environmental Protection, 688 A.2d 421 (Me. 1996) and, more recently, Bailey v. Board of Bar Examiners, 2014 ME 58, 90 A.2d 1137.
In SC Testing, he successfully got the DEP out of a big contract to buy emissions control facilities and services, with the Court finding that a risk of repeal provision in the state’s amended RFP was incorporated in the contract, allowing them to terminate. The dissent by then Justice (now First Circuit Judge Lipez) explains why this conclusion was by no means a slam dunk.
I previously blogged on Bailey matter (F. Lee Bailey ruling – 4/10/2014 and What’s new at the Law Court? – 1/17/2014), in the latter entry dissecting the oral argument to show how well it was argued. The issue was whether his client should have been admitted to the bar in Maine. The facts show that Peter had a pretty uphill argument, given, among other things, a previous disbarment elsewhere and a clear and convincing standard. Nonetheless, he almost won – 5:4 in front of the Board, the Single Justice ruled in his favor; and a full SJC split 4:2.
In short, that’s some good lawyering. And he always did it with good humor and warmth.