What exactly do you want us to say?

I don’t comment on the substance of matters pending before the Law Court that involve me, but we were involved in an oral argument recently that reminded us of a useful tool in preparing for briefing and argument that is generally applicable, whatever the substantive issue in the appeal might be.

The argument that reminded me of this tool took place in Ross v. Acadian Seaplants.  The substantive issue in the case is whether the public, subject to regulation, can harvest seaweed in the intertidal zone without the permission of the littoral property holders.  We represent the amicus Department of Marine Resources, and had a few minutes of the argument, with Ben Leoni and Gordon Smith representing the parties.  The argument is at the link below.


The useful tool relates to a question that Chief Justice Saufley asked counsel for one of the parties:  “In a sentence, what is the holding you would like to see in the opinion deciding this appeal?”

Everyone arguing a case should be prepared to answer this question – remember, in a sentence — and it should guide your briefing as well.

Judge Coffin made a similar point when advising practitioners to be very precise about the relief sought in an appeal, and was known to ask the lawyer in front of him exactly what the party wanted.  The conclusion in the brief should always set this out, again, precisely.  “I want to win” is not particularly helpful to the court.  The conclusion of a brief should say exactly what relief is sought in the specific case, given its procedural posture.  CJ Saufley’s question is somewhat different, going to the precise substantive ruling.  That should be in your brief too, upfront and at the end, and everything you argue should be consistent and build to that holding.

If you pay attention to CJ Saufley’s questioning in most oral arguments – and remember, you can listen to the most recent ones – typically, she is wonderfully transparent as to what she is trying to do.  She is looking at the case from the Court’s point of view – something that the lawyers don’t always keep in mind, but that judges in conferences I’ve attended repeatedly emphasize.  We, the advocates, want to win and sometimes aren’t too particular as to how the Court arrives at the result sought by our client.  In contrast, the Court’s interest is in issuing a decision that sets out the law and applies it, in a clear, coherent manner.  It wants the legal ruling in the particular matter before it to fit harmoniously within the general subject matter of law involved in the case, with no ugly, unanticipated ramifications.

One necessary aspect of this judicial goal is actually drafting the opinion.  As you listen to CJ Saufley’s questions, you can hear that this is what she is focusing on – what exactly is this opinion going to say?  What is its text?  And how will this decision fit within the general area of the law?

While this goal is more obvious in cases like Ross, a declaratory judgment action seeking a ruling with broad implications beyond the parties before the Court, every decision by the Maine SJC is a little piece in the mosaic of the law in that area.  You should be ready to explain how the substantive ruling you want fits in that mosaic.

So be prepared!  For every appeal, start by writing down the precise legal holding you want, in one sentence.  Then work backwards to explain why.