Litigation

Ethics

Continuing my summary of the last AAAL meeting, as appellate nerds know, Texas is the one appellate jurisdiction that has a separate and additional set of ethical rules applicable to appellate bar practice.  The folks who instigated this development gave an interesting talk on how this happened.

First, here’s a link to those Texas’ appellate rules of ethics, promulgated by the Texas Supreme Court and Texas Court of Criminal Appeals (the latter being the highest Court in Texas for criminal appeals) in 1999.  (Standards for Appellate Conduct, The Supreme Court of Texas)

As you peruse, you’ll note there is nothing radical or unsurprising.  To sum up:  “Play nice.”  The rule about manipulating margins is now obsolete, because those courts, like most now, use a word count.

Note that these rules apply to the appellate judges, too, not just the bar.

Basically, the reason the rules came about was because some of

The latest meeting of the American Academy of Appellate Lawyers took place last week in San Antonio (yee haw!), and yours truly is here to provide a summary of relevant learning.

The first session was a panel on Texas Access to Justice programs.  The panel included the Dean of a new Texas law school (there are 10!  Texas is big!) concentrating on affordability and open access; two ex-members of the Supreme Court of Texas who founded the Texas Access to Justice Commission, and Justice Jane Bland of the First Court of Appeals in Houston.

After noting AAAL’s key role in access to justice issues (AAAL’s founder, Arthur Englund, founded IOLTA, when on the Florida Supreme Court), the panel noted that Texas has two commissions, one focusing on no income, and the other on low income issues.  There is a biennial budget of $90 million, up from $10 million in 2001.

They recommended that every state undertake a current need study – this

We all knew that whether you have the original Mona Lisa or a copy matters.  Now we know this matters with mortgage releases, too – even if the original may not exist.  Sabina v. JPMorgan Chase Bank, N.A., 2016 ME 141.

In Sabina, the Law Court, in a 4-2 split decision, ruled that under the mortgage discharge statute, 33 M.R.S. § 551, a mortgagee who timely records a release of its mortgage and informs the mortgagor of its recording violates § 551 when the mortgagee sends to the mortgagor a copy of the recorded release, rather than the original recorded document.  Send the copy and not the original, and the mortgagee (defined to include any servicer who receives final payment on a mortgage) faces exemplary damages of $500 per violation as well as court costs and reasonable attorney’s fees in any action to enforce the statute.

Maine law requires a mortgagee to do

If you’ve ever fantasized about moving to the other side of the bench, a recent First Circuit decision coming out of Maine highlights what to me would be one of the worst parts of putting on the robe – having to look at child porn.  U.S. v. Ross.

I once had to look at (relatively) very tepid child porn to adjudicate with the other Board members on Board of Bar Examiner proceeding.  That stuff sticks with you and if that’s a part of the judging job that comes up a lot, count me out.   .

In Ross, the defendant was convicted of possession of child pornography under 18 USC s. 2252A(a)(5)(B).  He argued on appeal that the district court (Judge Woodcock) erred by not viewing the material before ruling that it was admissible.  Because the defendant stipulated that the material was child pornography (his defense was he didn’t download it), he

It takes an awful lot for the Law Court to impose fees, and even then, it is typically only a minimal spanking (e.g. treble regular costs). So you can bet that when the Court awarded $10,000 in attorney’s fees on appeal, the conduct of the attorney at issue there was pretty … special.  Lincoln v. Burbank, 2016 ME 138.

Justice Alexander spells out all the bad behavior in the 31-page decision, and there is a lot of it, so I’m not going to repeat it here.  I did think the mention of binding the brief with “twine” was a particularly nice touch.  (More serious infractions included trying to represent people who didn’t want the lawyer to represent them, making factual assertions not in the record, filing out of time, etc., etc., etc.)

Searching for useful nuggets among the muck, there is one point of note, I think.  There were two sets of appellees,

The Law Court has addressed the issue of public prescriptive easements again in Cedar Beach/Cedar Island Supporters, Inc., et al. v. Gables Real Estate LLC, 2016 ME 114.  As with its earlier decision in the Goose Rocks case (Almeder v. Town of Kennebunkport, 2014 ME 139, P18) – upon which we have blogged multiple times (Goose Rock mystery, Goose Rocks again, Back in the saddle, More about agency deference; looming arguments; and youtube, Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone!) the decision in Cedar Beach shows a sensitivity to ensuring that owners of land used by the public are not easily deemed to have lost their right to stop that access through longstanding public use.

Here, members of the public

It may be the height of summer vacation time, but the Law Court and First Circuit continue to issue decisions, some of note.  Here’s one of interest, in which Judge Lynch parted ways with the reasoning of the majority (Judge Lipez, joined by CJ Howard):  Ms. S. v. Regional School Unit 72, No. 15-1487 (1st Cir. July 15, 2016).

The underlying subject matter is the Individuals with Disabilities Education Act (IDEA) and its interface with a Maine regulation regarding the timing for seeking a due process hearing under IDEA.  But the discussion is all about Maine procedural requirements for rulemaking under the Maine Administrative Procedure Act.

I will spare you the majority’s long discussion of its interpretation (the ruling is a remand for the district court to try again to figure out the answer to the ultimate question whether the rule passed muster or is invalid.)  I also won’t go into the labrynthian and confusing nature of the

The attached Findlaw blog rates US Supreme Court Justices’ hipster quotients:

http://blogs.findlaw.com/supreme_court/2016/07/who-is-the-biggest-hipster-on-the-supreme-court.html?DCMP=NWL-pro_scotus

Any thoughts on how our own Supreme Judicial Court Justices rank?

As you can see, we have a new format/platform. Let’s hope it’s easier to use that the last one.  As always, all comments welcome, cconnors@pierceatwood.com.  Now let’s finish discussing the SJC’s appellate seminar.

We had just finished up with Justices Alexander and Humphrey on jurisdictional issues. Next, Justice Mead spoke about Rules 5-7 on the brief and appendix structure.  After observing that the people attending probably weren’t the offenders, Justice Mead stated that sometimes it appears that attorneys hand off appeals to a junior associate or secretary, who in turn calls the clerk’s office for questions answered in the rules.  If you are the supervising attorney, he said, then supervise.  You should know the rules, and the buck stops with you.

Regarding Rule 9(a) and the standard of review, Justice Mead said this is not the portion of the brief to exercise your advocacy skills. Just set out the standard.

Do not seek to enlarge your page limit simultaneously with filing an