SJC appellate seminar (III)

Practice area:

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,  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 oversized brief. You need prior approval.

Make sure replies are just that – strictly confined to responding to new matter.

The consent by the parties to submit an amici brief must be in writing with signatures. E-mails are not allowed.  (This seems a little 19th century, but there it is.)  At the same time, they want e-mail copies of your briefs.  While the rule says email copies are encouraged, if you do not send one, Matt Pollack will call you and ask for one.  Make sure you send a searchable pdf.

On the appendix, he noted that often the admonition against duplication is violated. Cull the appendix so there is just one copy of any document.  Just because a copy is attached to a new document, that doesn’t mean you include two copies.

Don’t file a supplement of legal authority for the usual case law – this is for submitting weird, hard to find material that they can’t get easily off Lexis or Westlaw.

Be careful about references to confidential matters in your briefs; put a plain copy of the cover page behind the cover itself (because the cardboard cover can’t be scanned); white comb style is preferred for the spiral fastener.

Notably, Justice Mead said that they did not want to see any exhibits at the end of the brief itself. This is contrary to the First Circuit’s position about addenda, and Judge Kayatta’s recent presentation asking that the important document be included.  This seems to me an item to chat about with the rules committee.

Be careful with the cover page – don’t switch the names in the caption – the plaintiff still comes first even if it’s the appellee.

Make the page numbers on the appendix look different from the pages on the documents themselves. Be clear about gaps in the transcript.  Templates for briefs and appendices were provided in the seminar materials.

Justice Alexander noted that black and white, hard to read copies of photographs were not acceptable. Scan the photo.  The rule needs to be adjusted to address color photos.

There was some discussion as to how to present statements of material facts so the Justices don’t get whiplash reading them – put the responses in the same document. On both the trial and appellate levels – Justice Humphrey is looking at this at the trial level – there needs to be party cooperation about this – send your word SMF to the other side by email to facilitate pasting the response in it.  Be nice.  Justice Mead said if you are paranoid about the other side changing your text (I’m paraphrasing) there are ways of making your document something that they fill out and can’t change.

In the Q&A after this session, someone asked about whether the Court reads on iPads or paper. Justice Gorman said she tries to read paper, because the science says it’s easier to read.  (She said she didn’t know what she would do when things go electronic, but the First Circuit still makes you send hard copies to the court, so I assume the SJC will follow suit.)  Justice Alexander said he preferred electronic reading because he found it easier to cut and paste and take notes.  Justice Mead reads paper, but would go electronic if they had hot links.  The Chief said that most Justices are trying to read in the electronic format and draft opinions are circulated as live link documents, although she noted that like Justice Gorman, she believes that one thinks differently with electronic reading (she’s right as our previous blogs have noted, but again e-filing doesn’t mean the end of hard copies).  She noted that she discusses e-filing with Judge Levy, now on the federal district court, who uses three screens when he reads – one with the record, one with the briefs, and one with the document he’s working on.

Next came Justice Jabar on the oral argument.

He said when you open, address the court and state why everyone is here today. Have that opening memorized.  Body language is important.  Reserve your opening, not necessarily the entire 3 minutes allowed, but focus on your most important issue.  The Appellee in his opinion should always reserve some time too, again identifying the most important point.  Also have a closing sound bite ready.

This is a hot bench, and make sure you understand the procedural posture or your argument may be wasted on that.

When the red light goes on, stop, even in mid-sentence, and ask if you can finish that sentence.

Be ready for hypotheticals. You can disclaim, but answer them.

Concede issues and recognize soft balls.

He said that lately, the Court was leaning toward more oral argument (with Justice Gorman a dissenter), so if you haven’t gotten one, and want it, ask. The Chief said the percentage of argued v. submitted on the briefs appeals had changed from about 40-60 to 50-50, and agreed that if you ask, you will probably get an argument, but not many people seem to ask.  Justice Gorman noted that a lot of family cases and “fact correction” cases are not argued; appeals from the business and consumer court are all argued; cases that have had trials are argued, and criminal appeals are more likely to be argued if there is a question of law.  Pro se has not been argued.

When asked how likely was a party to get extra time if they asked, the answer was not much, because of the way they schedule. It will take convincing.

Next came Justice Hjelm on ethics. The gist was the same issues relevant to litigation in general apply to appeals.  Given the size of the appellate world in Maine, everyone knows each other and so there’s a lot of accountability and no development of special rules.  He noted that Judge Kozinksi once observed that when a lawyer doesn’t follow a rule like the page limit, it invites speculation that the lawyer is not coloring within the lines in other areas, too.

Justice Hjelm noted that the Board of Overseers’ report on disciplinary action would be coming out soon. In the past five years where discipline resulted, there were 300 proceedings and only one involved appellate practice.  In the last 18 months, three files about appellate conduct have been opened triggered by Bar Counsel reading of decisions, not complaints from opposing counsel.

The three items Justice Hjelm focuses on were (1) taking the appeal, (2) whether there should be an appeal, and (2) the duty of candor. On the first point, appellate practice is a specialty and you need to be competent.  That doesn’t mean you don’t do it, necessarily, but you need to understand the differences in the practice, standards of review, etc.

He reported that particularly in criminal practice, some trial counsel have been less than cooperative in handing off an appeal. Under Rule 1.16(d) you need to produce that record and protect your client’s interests.

On whether an appellate lawyer has to report when they see malpractice or ineffective assistance below, Justice Hjelm said the ABA said no in a civil malpractice action, but he characterized that Advisory Opinion as “crabbed.” (I’ve blogged on how this issue is addressed previously.)

As to whether there should be an appeal, it can’t be frivolous, but you can make a good faith argument for chance. Remember that bar oath – delay no man for lucre or malice.

He said not to take a memorandum decision personally, there are multiple reasons why they are issued, e.g., a determination that it’s not the right case to publicly analyze the issue.

Texas has specific appellate ethic rules and he likes some of them, including communication with the client. You need to explain to your client that an appeal is not a total re-do, and be sensitive to the impact of delay and uncertainty in family cases on the children.

On the duty of candor, remember Rule 3.3(a) about not misrepresenting authority through either a mis-cite or non-cite. This really frosts him.  While federal courts interpreting Maine law are not binding, you should talk about them.

The Chief asked whether the audience members ever thought the other side was misrepresenting, and if so, what did they do? Peggy Benzinger said she said something like “the record does not reflect,” and the Court would pick up on the problem.  Rufus Brown said that the other side makes accusations about misrepresentation and they should not.  Justice Alexander noted that this was a difficult issue in criminal defense and child protective cases when there needs to be an appeal.  In those situations, the Court is more sympathetic about heavy duty record and law spin.  The Chief opined that when you see a misrepresentation by the other side, you should call them out if you have the opportunity, but be nice.  She noted that she’s seen some misrepresentations of law recently from folks she wouldn’t have expected it from, and guessed it was a junior person using electronic searching.  If the briefing is done, you can file something and ask for oral argument, but the chances are slim that the Court will miss a misstatement of law.

In the final Q&A, the Court was asked about what the lawyer should do when the argument veers off point. The Chief acknowledged that if something isn’t in the record, they shouldn’t be asking, but they are human, and they are also trying to explore what the broader consequences might be of their ruling.  Say that you have that information but it’s not in the record, and ask whether the Court still wants you to answer.  Or say that it’s not in the record so you will treat the question as a hypothetical.

Disturbingly, Judge Gorman noted that she has heard that when the other side is aggressive, clients complain about their lawyers not being equally pit bulls, and they recognize that the trial court has to nip that sort of nasty behavior in the bud. The problem is that when some trial justices do that, the aggressive lawyers complain about those justices in the judicial evaluations, and when the Justices come up for renewal, the few complaints are seen by the Legislature.  So these unpleasant whiny pants get a disproportionate weight, since no one files anything if they have nothing to complain about.  It’s the judges that try to manage aggressive conduct, Justice Alexander said, that receive this criticism.

On the amici front, Justice Gorman says they like them – some areas of law are in transition and it’s nice to hear different perspectives.

On splitting argument time, the Court doesn’t like it, and if you try to split it by issue, Justice Alexander will ask the other lawyer about the other issue. (This makes sense, but sometimes parties on the same side have different interests, e.g. a permittee v. the agency.)

The Chief said she likes the trend of specialization in appellate law, but don’t then say in oral argument that you don’t know what’s in the record because you weren’t trial counsel. (Yikes! I’ve always thought it’s easier to know the record if you were new at the appeal level because then you don’t get mixed up with what’s in the record versus what’s not.)

Donald Macomber asked the question again about how much argument affects the results, noting that Judge Kayatta had said that his experience was 10-25%. Justice Alexander said less than 10% change the result.  Oral argument is particularly important for cases with big records.  Justice Jabar noted that if they keep cutting arguments no lawyers will be left knowing how to do it.  Justice Mead said that argument sometimes changes his view, and with some regularity an arguer will persuade him not to go his way.  The Chief said she kept a record for a period of time and a solid 22-23% had some change in the way she looked at a substantial issue in the case.

Someone asked how they liked Brandeis briefs. Justice Alexander said the Court doesn’t make policy; Justice Gorman sounded more welcoming; and Justice Hjelm said that you are taking a risk when you start talking about things not in the record.  With respect to facty amicus briefs, the Chief said it was hard to take a position in the abstract.  They like amicus briefs to tell them the breadth of legal development across the country.

The Chief closed by telling the audience that if they had suggestions regarding the rules, contact someone on the rules committee (you know where I am, email me), and she can be contacted at – staff goes through that address regularly.

That’s it. Phew!

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