SJC appellate seminar (I)

Practice area:

As we alerted was coming in previous blogs, the Maine SJC held its seminar on appellate issues last Friday.  There were 100 registrants and the conference, with all 7 Justices participating, was chock-a-block with useful material.  Here’s a start on summarizing.

CJ Saufley opened the proceedings, noting that Justice Alexander had done most of the heavy lifting on putting the seminar and materials together.

She noted that the oral arguments open with the Court asking the lawyers to state their names because the Court wants to pronounce them correctly.  This was followed by the Justices noting how their names are pronounced.  Justice Hjelm (“Hyelm”) is the most mis-pronounced, followed by Justice Humphrey (singular, not plural), then Justice Jabar (“JA-bar”). 

Each Justice has a major task other than deciding cases.  Indeed, CJ Saufley estimated that 50% of the Associate Justices’ time is spent on these other tasks, and 80% of her time:

  • Justice Alexander – appellate rules and jury manual; 
  • Justice Mead – technology interface and access to justice;
  • Justice Gorman – lead motion justice; probate rules, CJRD, family law and Uniform Criminal docket (process-wise I assume; see below re Justice Hjelm);
  • Justice Jabar – attorney discipline and judicial compensation;
  • Justice Hjelm – criminal rules (I assume substantively);
  • Justice Humphrey – civil rules, civil process reform, media, and the York County site location committee.

(I may have missed a few items – let’s just say they are all busy as beavers.) 

After a whirl around other court news (the status of the courthouses being renovated or built; e‑filing is coming to all Maine courts with the goal to be paperless in 3.5 years), she noted the establishment of the new appellate rules committee (discussed in previous blogs).  Throughout the proceedings, they noted the new committee and if anyone had thoughts on rule changes, to contact one of the members (give me a call or email,

On the question everyone asks regarding how many decisions are changed at oral argument, she estimated 10-20% have a change in the opinion (not necessarily the result, but how they get there).  On the question of how she goes about tackling review, she, like Judge Kayatta (same high school – coincidence?) – reads the Table of Contents of the blue brief, then the decision below.  Do not put you headings in all caps (ditto from Judge Kayatta – see earlier blog on the recent federal seminar).  State the issues in the TOC – she wants to know what this matters.  Somewhere up front she wants a summary paragraph of why the case is important and what went wrong.  (Again, these are similar to the points made in the federal seminar and in appellate conferences generally, so pay attention to them.  I’ve noted these in previous blog entries and after this summary, I’m not going to keep repeating these basics.)

She noted that 50+ appeals are addressed by the Court each month, and showed a photo of the pile of briefs that she would be reading over the weekend – 30 brief sets and accompanying materials.  So keep your writing as clear as possible (a theme of many earlier blogs).  

Next, she noted the importance, before filing an appeal, of reviewing justiciability issues – is the matter really final and appealable?  She noted that many family law issues can become moot, so keep an eye on that.   

She confirmed that she (and as noted in previous blogs, judges generally) dislike briefs that refer to the parties as “plaintiff” or “appellant” – use names or at least words like “Mother” or “the State.” 

She, and later other Justices, said, interestingly, that they have been seeing citations of legal authority in which the case doesn’t really stand for the proposition cited.  They speculated that this was a product of electronic research – the lawyer finds a snippet in a decision and cuts and pastes, without reading the whole case, and lo and behold, the lawyer is citing a dissent, not the majority opinion, or just a summary of an argument, not a ruling.  The Court reads those whole cases, and (as I thought it went without saying) so should you.  (Added note from me:  You need to read the whole decision also because even if your citation is correct, there might be something else in that decision opening a mine field or leading the court to muse about unhelpful things.)

If you are going for a new principle, or there’s contradictory precedent, say so.  Don’t be subtle.

Adjust the podium before the argument; moot your argument beforehand; if a Justice interrupts your answer to a previous question from another Justice, stop and answer the new question; if there are no questions SIT DOWN.  On the last point, she noted that 2-3 times a year, a lawyer snatches defeat from the jaws of victory by standing there bringing up issues.

Note, she said, that Justice Alexander is apt to lean into the microphone and ask a provocative question.  Justice Gorman will ask where in the 3000 page record where a sentence is, and she will know; she, the CJ,  will ask, if your side prevails, what is the one sentence holding of the Court.  Justice Mead will ask how your position jives with the statute; Justice Humphrey will ask why the issue wasn’t raised below; Justice Hjelm will ask why you didn’t cite the most recent decision; and, if you have an uphill appeal, Justice Jabar will help you, giving you softballs.  On the last point, be sensitive to when softballs are coming generally.  (This is a nice checklist approach that I’ve used for a long time – identifying each Justice as a short cut to make sure I was ready to address various points.  E.g., for Justice Roberts, it was always the jurisdictional issue).

On to the other Justices’ presentations in the next entry.

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