workers comp – the mystery continues – and other briefing issues


So I know you've been on the edge of your seat wondering about why the briefing schedule is different for workers comp cases, per the previous entry.  The language requiring simultaneous briefing for such appeals came into the rule in 1994, and the advisory committee note as to this language says … nothing.

So the mystery will remain. 

While we are on the topic of simultaneous v. sequential briefing, here's my suggestion for a change to the Maine Rule of Appellate Procedure (if I haven't mentioned this before).  Unlike the First Circuit rule (FRAP 28.1(c)(4)), currently there is no reply brief provided for with respect to a cross-appellant.  (See M.R.Civ.P. 7(b), Rule 9(d))  Why not?  It means when you have a cross-appeal, you have to file a motion to file your reply, explaining why you need a reply to answer the other side.  Why does the Court need more paper?  Wouldn't it be more efficient just to provide for a reply in the rule?  And personally, when I was clerking 8000 years ago in the Pleistocene era, I often found that the replies were extremely useful, because by that point the essence of what was really at issue was being distilled in the reply argument.

Maybe the SJC is worried that the cross-appellant would not use its reply as a true reply, limited only to the issues needing response as to its cross-appeal, but would instead make the brief a sur-reply to the arguments in the initial appeal.  But like FRAP 28.1, the the rule can say that the reply, if filed, may only respond to those issues raised in the appellant's appellee brief vis-a-vis the cross-appeal issues, and I don't think the First Circuit has suffered any clear abuse of this rule.

Of course complicating this issue somewhat is the lack of clarity as to when a cross-appeal needs to be filed in the first place.  The more you have to file a cross-appeal just to preserve your alternate grounds for rejecting the appeal, the more the reply in support of the cross-appeal looks like a sur-reply.  But, as I've mentioned in previous entries, this lack of clarity now infects the First Circuit too.  Indeed, recently confronted with a situation where it was unclear given the current state of the law in the First Circuit on this topic, after discussion with a staff attorney, we ended up filing a protective cross-appeal, noting in the notice of appeal itself the possibility that none was required, but that there was enough of a question that we needed to file the notice. 

In such circumstances, however, I still don't see the harm of having a general rule allowing for replies in suport of a cross-appeal, with the understanding, embedded in the rule, that the reply may only address new points raised in the appellant's appellee portion of its reply brief.  If the cross-appeal is truly only protective and there is no real separate issue to discuss, then there won't be any new issues, and no cross-appeal reply filed under FRAP 28.1.   

FRAP 28.1 is a pretty recently adopted rule, so it would seem to me that jiggling the Maine rule to allow a reply wouldn't require a lot of new thinking, process or effort.  I can understand why the Maine SJC wouldn't want to proceed lockstep with its federal counterpart in general, but doesn't plagarizing language that makes sense lies within the best traditions of the common law?