This week in Maine appellate law … with a little DC thrown in


It was another busy week in the world of Maine appellate practice.  Highlights included:

1.  Maine SJC oral arguments

It was oral argument week at the SJC.  Two cases of interest are political, both with long tortured procedural histories.  In one, Ralph Nader is suing the Democratic Party; in the other, the National Organization for Marriage is continuing its resistance to disclosing the names of its donors from an earlier anti-same sex electoral campaign.  In the latter appeal, the federal courts have upheld the Maine disclosure law; this is NOM's latest attempt to preclude enforcement, in the context of seeking to quash subpoenas.      

2.  Maine Law Court mooting  

The annual first year law student oral argument practice has commenced.  This is always fun to judge, and I was happy to see that we have a good number of Pierce Atwood folks volunteering.  Believe me, some of these students do a great job, better than you may see in court sometimes, and I know I always learn something from these exercises.

A big shout out to Justice Jabar, who was among the judges.  It's great for the students to have the Real Deal there; it means a lot to them.  

The pending Supreme Court case chosen for argument, Maryland v. King, is a very interesting one – Justice Alito calls it the most important case on criminal procedure in decades.  Can you take the DNA of someone arrested, not yet convicted, for the purpose of checking to see if they committed another crime?  I learned in preparing for the moot that the Supreme Court hasn't even squarely ruled on whether fingerprinting is ok (although the general view is it is, at least for identification purposes upon arrest.)  Reading the transcript of the Supreme Court's oral argument, it looks to me like it could be a close decision, and on this subject, it's not the usual suspects on the 5:4 divide.  Justice Scalia, for example, is very pro-4th Amendment.  Justice Breyer was looking like he may think the DNA swabbing ok, too.  Justice Kennedy seemed to be leaning in that direction, too.  CJ Roberts, however (who had rejected a stay of the swabbing practicepending argument) now seems to have some reservations.  Stay tuned.

3.  Criminal Appellate CLE 

Finally, I attended the first two morning sessions of the federal court's CLE on criminal appellate practice.  There were about 100 attending, and really anyone in civil or criminal practice who files briefs or argues in front of a court would have benefited – and it was free.  (After the first two sessions, the presentations looked like they were going to focus more on criminal nuts and bolts issues.)

The first session was on writing from a national instructor (Ross Guberman).  The second was on both writing and argument from Judge Lipez.  Both sessions were excellent, and I shall summarize their contents anon.  

But first I am off to  argue before the DC Court of Appeals.  It's an interesting case (well, to me, involving a challenge to a rate under the Federal Power Act).  It's been a while since I've argued in front of that court, but my past experiences have been positive.  One of the nice things about that court is that they treat the time limits as general benchmarks, not engraved in stone.  One argument I had in front of the absolutely fantabulous Patricia Wald (she's in the pantheon of great judges like Judge Coffin) lasted twice as long as it was supposed to. 

The frozen tundra weather on the east coast has also delayed the cherry blossoms, so there still should be a few out there for me to wander among (if you've never been in DC at this time, you should, it's really lovely).  But after I do, I shall provide the fully skinny of the teachings from Friday.  I learned some things, for example, that I never would have guessed.  For example (this is a teaser preview), Judge Lipez said a lawyer should just begin by saying who he or she is, and shouldn't identify his or her firm.  Apparently, firm identification can give the impression, when you say you are from some big firm, that you are announcing that you are somehow a whoop-de-doo, and judges find that annoying.  This has never occurred to me at all.  Now I know – and so do you, loyal readers (we had over 100 hits last week – keep telling your friends, and soon no doubt we will be on the Hufffington Post).