Raising the bar


A recent decision from the Maine SJC includes the following footnote: 

Webber raises the issue of procedural violations in Stewart-Dore’s appellate briefing. Stewart-Dore submitted a brief and appendix within the filing period, but then subsequently submitted an 'amended' brief and appendix after the filing deadline, without seeking leave from the Court or the opposing attorney. The amended brief contained a number of minor citation and font changes, but also added a quotation and contained a reworded paragraph. Maine Rule of Appellate Procedure 7 sets the briefing schedule in this Court. A party is not permitted to file additional briefing after the filing deadline without moving the Court for leave to amend or supplement her brief. Additionally, a party may move for an extension of time to file briefs in certain circumstances. M.R. App. P. 7(b). Stewart-Dore did not make any motion under the rules. Because the changes here did not materially affect the content of the brief and therefore did not prejudice Webber, we will allow the substitution of the amended brief in this instance, but caution parties to adhere strictly to the procedural rules.

Stewart-Dore v. Webber Hospital Ass’n, 2011 ME 26 [http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me26ste.pdf].

Stand warned.  Obviously any change, however minor, after filing a brief requires a request and approval, so the SJC's response here seems more than tolerant.  And here, the changes, although minor, were as articulated as more than typos, and therefore highly irregular.

In the old days, when civility reigned (or at least more than now), and you found a typo in a brief you wanted to correct, you would call the other side, tell them you'd like to fix the typos, the other side would say sure, you'd call Jim Chute and he'd say fine, and you'd go in and fix the typos, with copies of the corrections to the other side.  I suppose you could have filed motions to do this, but you didn't need to (Jim didn't like the extra paper clutter).

These days, however, this approach appears no longer viable; suspicion reigns.  Example:  when you file your brief in the First Circuit, someone in the clerk's office gives it the look over, then tells you if you've fluffed any requirements.  If not, they send you the email to circulate the extra copies of the brief.  If you did fluff, then they tell you and give you a couple of days to fix the fluff.  The other side has the brief and it's just a nit, so this doesn't delay anything.  Recently, there was a fluff (to a cover page) and the other side asked that the fixed brief be re-filed in red-line, to prove that no other changes had been made.

Really?  Has it come to that?  FIrst, no one in their right mind would try to make any changes like that to a brief after it was filed.  First, there's a record, and any changes would be evident.  So such a move would be just dumb.  But more obviously, you wouldn't do it, because it would be WRONG.  Period.  I realize that every profession has its miscreants, and certainly the quota of jerks in the law is not small, but I always thought that the appellate bar was at least a little more civil than those tigers in the trial trenches.  But apparently not.  Here's another example someone reported to me of less than noble behavior. 

He was putting together an appendix and the other side insisted on going to his office and monitoring to ensure that the only materials included were those in the designations.  He asked me whether I had ever heard of such a thing.  Nope.  Again, what would be the point?  You have designations – you would be caught for doing such a stupid thing.  And why would it help you? You can always designate what you want in an appendix in the first place.  But finally, why would you even dream that the other side might make such a stupid, useless and unethical move?

Lawyers are advocates and apparently sometimes lose perspective.  But acting like a paranoid bully doesn't help your client, your profession or the working world at large.  Take a deep breath.  Follow the rules; expect other people to follow the rules.  Act like a civilized human being and treat others like they are, too.  Is that so much to ask?