On Thursday I attended, along with about 90 other lawyers, the MSBA appellate seminar. Each Justice except Justice Mead (off in Abu Dabi) presented, along with two of the law clerks. It was a great program for appellate types. It’s always useful and enjoyable to get some time with the Justices to talk about appellate issues, and this was no exception
A general theme was the impact of the horrendous budget cuts. This is really a scandal, and whatever we can do to exhort our legislators as to the illogic and harm of these, we should be doing (that’s me, not the Justices, talking). It’s really unfair (the courts more than pay their own way, and they do more than most other jurisdictions, more quickly and for less money — and this is their reward?); counterproductive (call me crazy, but do we really want to cut funds when crime is increasing?) and approaching unconstitutional (still me fulminating).
The Justices did note that one major impact of these cuts, from an appellate perspective, is that each Justice now has to carry out many other administrative tasks, leaving them less time to do their actual judging. So the ever present message of keeping your briefs short and snappy accumulates yet another reason for listening to this sage advice.
Another theme was misuse of the appendix. They are too long, and with duplicate and disallowed materials, and the court might start rejecting those that do not comply with the rules. General advice to keep the appendix as short as possible gathered further resonance when two Justices noted that they only take the first volume of an appendix home to read.
Because the appendix is a joint proposition, and the rule doesn’t include any mechanism to stop one side from stuffing it, the question is how avoid being tarred by your opponent’s bad act. For example, I’ve had the experience of the appellant’ s counsel calling me at the last minute to say that he is including their one-sided 249 pages and what would I like for the last page? Sigh.
Two proposals were made at the session. First, Justice Alexander suggested dropping a line in your brief noting that you aren’t responsible for all the extraneous dreck – it was counsel for the other side. Second, Matt Pollack, the new clerk of the court, noted that he had managed to get an appendix thinned through gentle persuasion, so you might give him a call for help.
My general practice, to try to avoid the 249-page sandbag, is to send a letter to the other side very soon after an appeal is filed, designating what I want in the Appendix, reminding counsel of the rules, and noting that we should keep it as short as possible. People should remember that, unlike a few courts, it’s not necessary to include everything in the Appendix from the record that you cite or want considered on appeal. Only put in it the things that you think are critical for each Justice to read.
Another approach used in some courts, and which I convinced Jim Chute to allow me to do once, is to file the appendix after the briefs are filed. This requires two sets of briefs: you file your first set with record cites; counsel then jointly decide what needs to be in the appendix; and then you file the same briefs, with no changes except cites to the appendix instead of the record. This sequence tends to slim down appendices for appeals, especially those based on sufficiency of the evidence with big administrative or trial records. Instead of throwing everything in, the parties get to draft their briefs first and then go back to see what they actually ended up citing and what they really care about.
The downside is that this approach requires two sets of briefs. At the seminar, the Court noted that it did not have enough space as it is. They also noted, however, that while we are not on the verge of electronic filing, they are probably going to start requiring emailing submissions (as well as sending in hard copies) and are going to start at least a voluntary program for notification via email (currently they are sending some email notices but have to send a letter, too). It seems to me that under the two sets of briefs solution, the first set of briefs could be via email alone, and just sit on a server somewhere not taking up physical space.
Motions to Reconsider
They really don’t like them.
In my 21 years of practice, I have filed exactly one motion to reconsider. I represented the Appellant and it was a 3-3 mem. dec. The missing Justice had been out of town, and I suggested that the issue was important enough that reconsideration with the full bench would be helpful. It was denied. I’m still not sure if common law spot zoning still exists in Maine.
It seems to me that filing a motion to reconsider doesn’t make sense unless one of two conditions exist. First, such a motion might be warranted if it’s clear that there has been an indisputable mistake that affects the outcome — not a disagreement on the law, but something like the decision revealing that half the record somehow fell behind a desk at the clerk’s office before it could get to chambers, or everyone somehow missing that the relevant legislation was repealed before the decision came down. Second, it might make sense to file such a motion if the briefing did not anticipate an aspect of some important language in the ruling that will have unintended consequences. By that I don’t mean a mis-cite, but a real effect on an entire industry or area of the law beyond the narrow issue in the case.
The Chief noted that in the last few oral argument sessions, some lawyers had not been adequately prepared. She also repeated the sage advice as to oral argument to stop while you are ahead – she could think of two appeals that went south for the lawyer because s/he didn’t sit down but kept blathering.
Matt Pollack noted:
- with respect to motions to enlage, he can grant them if they are for less than 21 days and unopposed. Try to file them as early as you know you need one and don’t panic at the last minute and call him every half hour to see if it’s been granted. Grounds more than I am a busy and important lawyer might help.
- feel free to call him if you haven’t gotten an oral argument schedule within 2 months of the last brief being filed, or if there’s been no decision within 4 months for a simple case, 6 months for an average cae, and nine months for a complex one.
- include a draft order with your motion.
- Don’t put "ss" on your title page by the county – it’s not technically correct at the appeal level (there was a Latin explanation for this, but at this point I started getting flashbacks to having to conjugate and decline old latin vocabulary from high school and had a brain freeze. Agricola, agricolae …).
Dan Wood, one of the law clerks, noted, astutely, that what you really want is for the Justices to read your brief twice – once before and once after they’ve read the other side. One way to encourage this, besides making your brief short, is to make it pretty – no nasty staples, icky font, misspellings etc.
Justice Levy gave a whizbang presentation. He notes that poster exhibits don’t work (I’ve seen the truth of this point over and over). If you want the Court to look at your map while you are talking, make sure it’s in the record, then follow Rule 11(f) and ask to submit a one-pager that each Justice can have at their seat. He also warned about raising new arguments at the oral argument stage, and noted that even when the review is de novo, the Court reads the Superior Court’s decision. (The Chief noted that she usually starts with that decision or sometimes the reply brief — I remember doing the same thing when I clerked in Chicago 8 million years ago. Because I clerked for a federal district court, we didn’t get a lot of appeals — except bankruptcy — but if there was a decision to look at, I started with that. And especially when the pleadings were thick, I’d start with the reply to see what the issues and argument really boiled down to, then go backwards.)
Justice Clifford reminded us that many appeals are lost at the trial level, through failures to preserve, and preservation includes making offers of proof. (This, incidentally, is particularly true in federal court – the First Circut’s rules on preserving jury instruction objections is particularly strict.) This topic lead to general musing on the appellate lawyer’s role during the trial or the administrative proceeding. I will leave this for another day.
During the Q&A at the end, I found the following points of interest:
- Justice Levy encouraged more critical legal writing on Maine legal issues (perhaps blogging? Here I am doing my bit — Although I’m thinking he meant something with more footnotes)
- I got a mixed response on my question whether lawyers should file letters regarding authority coming down post-argument (similar to filings under FRAP 28(j)). The Chief said no, they can find it for themselves, while Justice Clifford said it could be helpful if on point. The downside to such letters is abuse, with counsel finding some flimsy excuse basically to file a post-argument brief. (Rule 28(j) and local rules by some circuits curbs this by limiting the letter length and other restrictions). The lesson I gathered was to do it sparingly, don’t be argumentative — just file the decision itself — and only do it if it’s really relevant.
- The Chief asked whether appellate mediation would be useful. Currently, she indicated that the Court will sometimes send parties off to voluntary mediation. She received mixed responses from the audience. I’ve been to programs discussing this topic, and the bottom line that I’ve absorbed is that it’s not useful as a generic, everybody goes process, but only if targeted and with very good settlement counsel running the show. I was in a situation once in the First Circuit — which sends practically everything off to mediation (although lately I think they are more willing to hear argument as to why it doesn’t make sense in individual situations) — in which the settlement counsel was particularly aggressive. It was a case which we had obtained a dismissal because it should have been pursued in Colombia, not the U.S. The settlement counsel was insisting that my client appear, and did not seem particularly moved by the fact that they were in COLOMBIA, remember? It was getting to the point where I was having to make noises about filing a motion with the Court of Appeals itself before he realized perhaps my point had some merit — and even then, I had to schlep down to Boston twice for mediation sessions. (The mediation did not succeed and the dismissal was ultimately affirmed.) Mediation can add costs for no good reason, and, as the Chief noted when she asked the question, and can increase the number of appeals, because the parties think there’s one last shot for getting something out of the other side. So I hope that if the Court does eventually go this route, it chooses the very targeted approach.
That’s my general brain dump, although there was lots more, and if you weren’t there, you should have been. We are very lucky to have friendly and accessible Justices, a great new clerk of the court, and law clerks who are all willing to help, and we should take advantage of every opportunity to hear what they have to say. It’s always informative, and I always learn a lot.
Coming blog attractions:
- I’ve got a great presentation on the history of the Maine Court system prepared by the ex-Chiefs (McKusick and Wathen), complete with sound effects anf animation (e.g. Justices on horseback with hoofbeats riding circuit). I will post this production as soon as our crack computer folks figure out how to attach such a huge file without making everything crash.
- I want to identify the various avenues that appellate specialists have for pro bono work. There are many, and I wrote an article about this topic once for an appellate publication. Some of my most satisfying wins have been freebies. I want to focus on the menu of options in Maine that use appellate skills.
All input on these topics and any other is, as always, welcome. Just click on the link and send me an email.