What’s new at the Law Court?


Ok, with a new year, let's do a little round robin of news at the Maine SJC.

1.  Mikes.  They've got new microphones at the Court, that you clip on when arguing.  This means you no longer strangle yourself when you go to sit down, forgetting about the mike clipping you to the podium, but don't lope off with the mike when done (I think a clerk keeps an eye out just in case).  In theory, that you have a mike on your person as opposed to having to speak into a stationary mike means that you can wander off the podium more, but I wouldn't do an Oprah and frolic about the court room.  Stay put.  This will also make it easier to use an exhibit, but in general that remains a bad thing to do – I don't think the Court likes it (unless it's a map, you need it to explain the salient point; and you've already attached the map to the briefs so they can follow along there).

2.  McClare.  In this decision, the Court rules that e-mails can form a contract to buy real estate without running afoul of the Statute of Ffrauds (33 MRS s. 51), given the Maine Uniform Electronic Transactions Act (10 MRS ss. 9401-20).  Here, the court said it was up to a jury to decide whether a contract was formed from the emails at issue.

http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2014/14me4mc.pdf  I'm told that the federal district court reached a consistent conclusion in 2003 (see Roger Edwards, LLC v. Fiddes & Son, Ltd., 245 F. Supp. 2d 251 (D. Me. 2003).)  Note that in this opinion, the Court says that one factor in favor of finding a contract is that these emails were exchanged among lawyers, who should be sensitive to the impact of language like saying, "offer" and "accept."  (See Paragraph 22:  "The use of these terms take on greater weight in this case because they were exhanged between attorneys who, it may be inferred, knew the signifigance of using the terms and intended their consequences.")  The decision also talks about the basic elements of a contract for sale of land and is otherwise required reading for folks in this field.  The takeaway is clear: if you don't want an email to mean there's a deal, avoid making it a trial issue, and explicitly say so in the communication.

3.  F. Lee Bailey.  While I argued an appeal on Tuesday, perhaps the general public is more interested in the argument that same day in the appeal challenging the Single Justice (Alexander, J)'s ruling rejecting the Board of Bar Examiner's denial of admission to the bar of F. Lee Bailey.  Both have now been posted, and will only stay there two weeks.  The argument about the Board decision is worth listening to, not only because the lawyers arguing the appeal (Thomas Knowlton for the Board and Peter DeTroy for Mr. Bailey) did a good job, but because the argument illustrates some universal points about oral argument before an appeal court.

First, note how a prominent issue is the standard of review.   Always keep this in mind in any appeal – the standard of review matters. A lot.  To the Court.  Which means it matters a lot to you, too.  Is something in front of them a question of law?  Of fact?  Mixed?  Always have a snappy response ready for every apppeal on the standard of review and how it helps, or at least doesn't hurt, your position. 

Second, note how in practically every response, Peter DeTroy throws in the concept that there was a lot of evidence before the SIngle Justice, so defer defer defer.  This is his best argument, so it's his theme, and he voices that point whenever he can.  The other side, in contrast, needs to persuade the appellate court that there are undisputed facts in the record that justify vacating the Single Justice's ruling – that reflect a present risk to the public or otherwise show that the standard for admission have not been met, applying the proper standard of review. 

Third, notice how Mr. DeTroy doesn't overreach by suggesting that the Board was dead wrong, and his client is and always has been 100% perfect.  Mistakes were made, he concedes (but – back to his theme – it was all hashed out in front of Single Justice, so defer.)

Finally, note that in the rebuttal, Mr. Knowlton doesn't try to pack in too much.  Like a terrier, he clenches his teeth on a point that the questions by the Court to Mr. DeTroy signal is of interest to the Court, and which Mr. Knowlton believes is helpful to his position – a few facts that he argues show not just that mistakes were made in the distant past, but which, he contends, shows a present problem precluding qualification for admission.  Pack a punch in a rebuttal by not trying to do too much.  If you can (i.e., you don't have to use the time to clarify a point or fix a misstatement or confusion), burrow in on one or two items of interest to the Court that play to your strengths and hit them hard.