Appellate & Amici

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