SJC appellate seminar (II)

Practice area:

So onward to the next set of presentations at the Law Court’s appellate seminar.

After CJ Saufley spoke, Justice Gorman discussed the basics of the appeal process, expressing hope that the new rule committee would simplify Me Rule of Appellate Procedure 2.

Justice Gorman asked why people file notices of appeal along with tolling post-judgment motions.  (Well, people do it because the rule currently provides that there’s no downside – the notice gets reinvigorated automatically, so you don’t have to remember to file the notice after the ruling on the post-judgment motion.)  Apparently this duo filing can create logistical problems, because the clerk at the trial court level sees the notice and ships the record out, but the trial judge needs to see the record to rule on the post-judgment motion, so everything comes to a grinding halt.  To try to prevent this, and otherwise to provide clarity, she recommended that the movant be sure to identify the type of motion the post-judgment motion is in the caption to highlight that it is a tolling motion.  File a clear cover letter.  Use semaphore.  Make it clear what you are doing so they don’t ship off the record.

She also said that there will be no more loosey-goosey phone requests to the clerk (I’m paraphrasing) – if you want something, you need to file a motion.  Interestingly, she said if you mistakenly put the 21-day notice to respond needed for Superior Court motions on your motion in the Law Court, they will hold your motion for 21 days.  I’m not so sure this will always be the case – the appellate rule (10(a)) says that the SJC can rule on a motion at any time without giving you even the 7-day response time; I don’t know why that principle would change.  So if you see one of those 21-day notices, I wouldn’t lounge around. 

Regarding motions (and remember she’s usually the motion Justice), she noted that requests for more time have gone down since the briefing periods were elongated in 2014.  If you do file such a motion, don’t just say you need it because you are busy as a beaver.  If you are a criminal defense attorney, you’ll probably get the extension in any event, but please try to meet the deadline.  If it’s a civil matter and you have an emergency, then they don’t need the gory details, but give them a general idea – a family emergency, a work emergency, a health emergency – and be clear about the time you need.  If you need to be taken off the case (i.e. as assigned counsel), tell them.

On motions for reconsideration, she noted (as I’ve blogged on previously) that Justice Silver said in one of these conferences @ 8 years ago how much the Court loathes such motions, and she suggested that maybe that went a tetch too far.  If you truly think the SJC missed something, then file; just don’t file a knee jerk motion.  (I predict, if this swings to far, we will get a warning the other way – the pendulum comes and goes).      

Some folks, she said, have been getting a little too creative with Rule 14, which provides basically that the Court can waive any of its rules.  This rule should be rarely invoked.

Finally, she noted that sometimes it can take a while for the trial court docket sheet to reflect a filing.  The trial court clerk is supposed to docket a filing within 48 hours of it being submitted, but sometimes the Justice is on the road, the courts are understaffed, family and criminal matters get docketed first etc.  So don’t go “holy Toledo, why is this decision dated June 1 and it’s not docketed until June 8?”  If you receive a document and need to know when it was filed, you need to call the court.  Hopefully electronic filings will be coming and you will be able to see the docket sheet on line.

Next on the hit parade were Justices Alexander and Humphrey, discussing justiciability.  Justice Alexander said that in 20% of the cases before the Court there’s some issue not addressed in the briefing (he was unclear as to whether he meant justiciability or any issue).  He said that if you screw up with the rules in the First Circuit, the Court kicks the brief, unlike the nicer to date Law Court (this isn’t quite accurate, as Justice Alexander acknowledged when queried further – what happens with the First Circuit if, for example, your brief is in the wrong font or there’s a similar problem, is it gets kicked with a short – 3-day – turnaround time to file a corrected brief.  Apparently to date under similar circumstances, the Law Court has just accepted the filing).

Justice Alexander said that the Court gets complaints that administrative appeals are slow, but he said that this is due to record problems.  Given that these record problems must have been dealt with at the Superior Court level for 80Bs and 80Cs, he must have been alluding to direct PUC appeals.  Or he might be referring to delay at the Superior Court level – he said that the MMA had complained, which would suggest Rule 80Bs.  (Buried somewhere in the Court are statistics on time for different types of matters, including administrative appeals, but I haven’t burrowed on this issue for a while.)

Justice Humphrey then gave a power point on the fundamentals of preservation and justiciability, Rule 52 on findings, etc.  By moving on quickly here, I in no way want to give short shrift to the critical issue of preservation. CJ Saufley piped up and said that as appellate and trial counsel diverge with specialization, it’s critical to get input from the appellate folks at the trial stage to make sure everything is preserved for the next stage. AMEN. AMEN AGAIN. 

Justice Humphrey also discussed finality and when interlocutory appeals are permitted. 

In the Q&A following Justice Humphrey’s presentation, one audience member noted that the CTA1 rules (actually FRAP) had eliminated separate statements of the case and statements of fact, and the speaker thought that it was a bad idea.  He was told to share his thoughts with the new appellate rules committee.  (This is really a distinction without a difference now in the U.S. Courts of Appeals – it just means you have sub-headings under the statement of the case for procedural and factual matters, and you don’t have to repeat the procedural stuff twice.)

Assistant Attorney General Bensinger (Natural Resources division, i.e. land of 80Cs) asked if there was a massive record but only tidbits are relevant to an appeal, whether the Court wants the whole kit and caboodle.  Justice Alexander said this is another issue for the new rules committee (as a member I’m beginning to sweat here), but that this issue really comes up at the Superior Court level, not from Superior Court to the Law Court.

After the break, came Justice Mead on the brief and appendix, Rules 7 and 9.  To be discussed anon.