Maine Appeals

elements of style

The spring edition of The Journal of Appellate Practice and Process has an interesting article in it:  "Does the readability of your brief affect your chance of winning an appeal?" by Lance N. Long and William F. Christensen.  These are professors who do statistical analysis about legal writing, e.g.,their previous article "Clearly, Using Intensifiers is Very Bad - Or is it?," appearing at 45 Idaho L. Rev. 171 (2008).

The bottom line conclusion from their foray into readability is no, it doesn't impact results.  Readability was measured by the length of words and sentences.  So basically, there is no statistically significant indication that verbosity affects results.

I don't think that's a giant surprise -- if anyone can handle those long SAT words, it may be judges, and it's a comfort to think that they can dig through verbosity to rule on the merits.  I would not call this a ringing endorsement to draft endless Ciceronian sentences full of those SAT words, however.  Interestingly, the study "does show ... that the opinions of judges and justices are less readable than lawyers' briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed."  Hmmm.

In terms of relative readability, so defined, US Supreme Court writings, from the Court and lawyers, are all less readable on average than the writing of their counterparts in the state supreme courts and federal courts of appeals, with the writing of the lawyers before the U.S. Supreme Court, in turn, more readable than the Court writings. 

In sum, according to these professors, the U.S. Supreme Court materials are the least readable, i.e. using the longest words and sentences, with the Court itself the most verbose and dissents are less readable than majority opinions across the board.  The most readable writing appears to be in appellee briefs in the federal courts of appeal.  

As to the results of reported in these professors' earlier article on the use of intensifiers, that statistical review is also illuminating.  Basically, their results, they say, show that the frequent use of intensifiers, particularly by an appellant, is associated with a statistically significant increase in adverse outcomes for the intensifier user. That confirms the general view, I think, that there is no place for adverbs and adjectives in your brief - get rid of them.  Every clerk after the first week of work knows that when a lawyer says "clearly," it means s/he has no actual legal support for what they are saying.  The article also indicates that there's some support for the conclusion that lawyers who use a lot of intensifiers make more grammatical errors, and that could also be impacting results.

Notably, there is one exception to this general rule against using intensifiers.  Dissents by judges use significantly more intensifiers than the majority - again no surprise, I suppose, because they are exorcised by the majority ruling.  But, interestingly, if an appellate opinion does use a high rate of intensifiers, an appellant's brief written for that appeal that also uses a high rate of intensifiers is associatied with a statistically significant increase in favorable outcomes.  

What does this exception mean?  Nothing too useful for the practitioner, I think.  The professors write "the odds of reversal can actually be higher for appellants who have high intensifier usage rates, but only when the judge writing the opinion is also a prodigious user of intensifiers."  If you are appearing before a single judge and his or her opinions have lots of intensifiers, perhaps this means you can fire away.  But you are usually dealing with a panel.  As these professors say, "[f]or the majority of cases, however, the conventional wisdom that intensifiers are associated with losing arguments is validated."        

My takeaway from these articles is that intensifiers remain a no-no, and while it's heartening that I can use a three-syllable word or a lengthy sentence when appropriate, I'm still going to try to be clear and concise, and use plain language.  I'll leave all those Henry James sentences and highfaluting SAT words to Supreme Court dissenters.

First Circuit round-up - privileges and immunities

So happy holidays, and let's conclude the year by noting a two First Circuit decisions, Bergemann v. R.I. Dep't of Environmental Management, No. 11-1407, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1407P.01A, and Collins v. UNH, No. 10-2316, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2316P.01A.  The first deals with sovereign immunity, the second with a qualified privilege to speak.   

In Bergemann, the Court weighed in on an issue splitting the circuits - whether a state waives its sovereign immunity to a claim by removing the claim to federal court.  The answer depends on how the circuit interprets a Supreme Court decision, Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002) http://supreme.justia.com/us/535/613.  The First Circuit leaned toward how the 4th and DC Circuits have ruled, finding no waiver unless "removal confers an unfair advantage on the removing state."  Other circuits hold that removal always waives immunity (the 7th, 9th and 10th circuits), and two find no waiver if damages are involved, but waiver as to suit (3d and 5th Circuits).   Because the State in Bergemann had asserted immunity to the plaintiff's FLSA claim consistently in state and federal court, the First Circuit found no waiver and affirmed dismissal of the claim on immunity grounds.  There's a nice discussion in the decision (by Judge Selya, joined by Judges Lipez and Howard) explaining why the Court sided with the no-waiver-absent-unfair-advantage-school, including citations of previous decisions showing that this position was consistent with precedent in the circuit.  Congratulations to the RI AAG, Thomas Palombo.   

Collins relates to an incident at the University of New Hampshire in which a tenured biology professor was arrested and charged with stalking and disorderly conduct "after unleashing an expletive-filled tirade against a colleague whom he suspected of causing him to receive a parking ticket."  (The details are in the decision - he kicked a large trash can, and threatened, using nasty language, to kill the professor whom he suspected had reported his car to parking services).  He was ultimately stripped of his position as department chair, and spent @6 months suspended with pay before returning, during which period he was banned from campus, with some exceptions when requested.  He sued for false arrest, due process violation and defamation.  The district court granted judgment on the pleadings for the defendants as to the false arrest counts, and summary judgment on the due process and defamation counts.  Basically, the court found enough to show probable cause, so no false arrest; and the period in which no process was provided (around 2 months) too short to require predeprivation process, given that the suspension was with pay, and sufficient overall process regarding the loss of the plaintiff's position as chair. 

As to the defamation count, plaintiff contended that a statement that "[a]nyone who sees Dr. Collins anywhere on campus should avoid contact with him and immediately notify the UNH Police Department" falsely implied that he was armed and dangerous.  The Court held that, even if one assumed that the statement did so imply, and even assuming the implication was false, there's a privilege in NH if the statement was "published on a lawful occasion, in good faith, for a justifiable purpose, and whith a belief, founded on reasonable grounds of its truth, provided that the statement  [is] not made with actual malice."  The plaintiff argued that these types of findings had to be made by a jury.  The Court disagreed, given the nature of his statements and actions, the context, and the lack of any evidence in the record that the defendants acted with malice.  The contention that the question of qualified privilege must always be left to the jury, the Court said, "is flatly wrong."  While ordinarily the question whether the privilege applies is a question of fact, the purpose of summary judgment is "to pierce the boilerplate of the pleadings and assay the partis' proof in order to determine whether trial is actually required."  Where, the Court said, "as here, no reasonable jury could have found that the privilege did not apply, a trial is not necessary."  Notably, this incident occurred not too long after the horrendous Virginia Tech killings, so schools were particularly sensitive to violent acts.   

Following the lesson of Collins, let's all manage our anger in the new year, and have a calm and cordial 2012.  

   

   

 

temping & workers comp

So some suggested that my last entry was somewhat impenetrable.  I prefer to think that this was a product of the subject matter, the opaque and counterintuitive world of takings, and not my writing, so on to a much simpler area of the law - workers compensation!

I know nothing about workers comp law.  But when I saw a decision from the Maine SJC that took 8 months from argument to decision, was divided 4:3, had an amicus brief, and the longest dissent I think I've ever seen, I said to myself, "hmm, this decision could be important."  Happily, the attorney for the prevailing party is our own Allan Muir, so I could go right to the source and ask him wjhat this case was all about.  Doughty v. Work Opportunities Unlimited/Leddy Group, 2011 ME 126 [http://www.maine.gov/COURTS/opinions_orders/opinions/2011%20documents/11me126do.pdf].

Here's what he said: 

"For years, Maine businesses that use temporary employees and the temp agencies that supply them have assumed that the temp agency is responsible for carrying workers’ comp insurance as the employer of the temp, and that the client company is not the employer of the temp and so is not responsible for benefits under the Workers’ Comp Act.

The plaintiff was a temp working on-site at an assigned company.  He fell and hurt himself and was let go by the company.  He filed workers’ comp benefit and discrimination petitions against both the temp agency and the company, testing the conventional assumption that he had no remedy against the company under Title 39-A because he was not an employee. 

After a Workers’ Compensation Board Hearing Officer sided with the company, Doughty appealed to the Law Court.  The majority opinion, written by Justice Gorman, held simply that Doughty could not be an employee of the company because there was no 'contract of hire express or implied' between the company and Doughty.  The dissenting opinion, written by Justice Jabar and joined by Justices Alexander and Silver, concluded that, under common law control tests, Doughty was the employee of both entities under a dual or lent employee analysis, notwithstanding the statutory definition of 'employee' on which the majority relied. 

Putting aside the legal arguments, we pointed out that the Legislature could not have intended joint employment to exist because in such a case the workers’ comp insurers for both entities would charge premium and, at perhaps $10 per $100 of payroll for premium, the cost of hiring temps would be prohibitive and some of the advantage of hiring them would be eliminated, a result the majority admitted was 'illogical.'  The dissent, on the other hand, noted that this concern should be left to the two insurance carriers to 'underwrite' the problem.

At least from the standpoint of companies who use temp agencies, the temp agencies, and the amicus Project Staffing, Inc. represented by Tom Getchell, we won’t have to test the suggestions we made to the Court that a reversal would mean the end of the temp industry as we know it."

The merits of the specific arguments for or against the arguments made by the parties in this statutory context are beyond me.  What I am gathering, however, is that the majority took into consideration the practical consequences of its decision.  As I've blogged before, I think this is often a good thing.  There are times when a statute is clear, and it's not the job of the court to re-write it despite whatever the practical consequences may be.  But taking into account consequences when there is room for the court to do so is usually beneficial.  This underscores the usefulness of amici briefs to help identify those consequences.  I've noted before that the Massachusetts SJC regularly makes a call for amici briefs on subject matters it's going to hear.  I don't know how many briefs it receives in response, and it is a discretionary court, so it manages its case load.  But if the Maine SJC sees cases on its docket that might profit from amici briefs from time to time, making a similar call for such briefs could be a helpful step for everyone.  

Garcia-Rubiera, takings, due process, "regulatory lag" and sovereign immunity

Having just blogged on one of my favorite topics, Rule 80B and 80Cs, a recent First Circuit decision allows me to riff upon another subject dear to my heart, takings.  Garcia-Rubiera v. Fortuno, Docket No. 10-2507 (http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2507.01A).  This one discusses the thorny issue of when a claim is for a violation of substantive due process, procedural due process, or the takings clause.

Puerto Rico has a law that requires all motor vehicle owners to pay for compulsory, state-issued automobile insurance, even if they have equivalent private insurance.  If you have both, you are entitled to a reimbursement of the state payment, and you get two years to seek it.  The Court (CJ Lynch, writing for the panel, which included Judges Torruella and Thompson) held that requiring the state-mandated insurance was constitutional, but because the insureds had a property interest in the duplicate payment, the lack of notice to them on how to obtain those reimbursements violated their procedural due process rights, and the Court directed entry of a declaratory judgment and injunctive relief to that effect.

This litigation has quite a history, including a previous round before the First Circuit armwrestling with another murky takings issue, ripeness.  See Garcia-Rubiera v. Calderon, 570 F.3d 443 (1st Cir. 2009) (http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2409P.01A).  As an aside, in summarizing this history, CJ Lynch noted how the previous panel had found the claim ripe, noting the precedent that the panel had relied on, then adding "but see" Downing/Salt Pond Partners v. R.I. Providence Plantations, 643 F.3d 16, 26 (1st Cir. 2011).  Downing didn't purport to question or distinguish the previous Garcia-Rubiera decision at page 26.  If one were a tea leaf reader, one might  conclude that CJ Lynch was suggesting that the ripeness ruling there was limited to its facts and that generally there is a strong ripeness requirement in the First Circuit.  As this complicated history, endemic of takings claims reflects, pursuing a takings claim in any form is not for the faint hearted or those who aren't seeped in the law in this area.   

Back on point.  The previous panel had concluded that the plaintiffs retained a property interest in the premiums sufficient to trigger procedural due process requirements, and had remanded for further consideration whether the transfer of the funds to the state kitty was a deprivation sufficient to require notice.  On remand, the district court found that the law was not a sufficient deprivation so as to require notice; the transfer to the public kitty wasn't a taking; and there was no substantive due process claim because there was a rational basis for the law.

The First Circuit disagreed on the procedural due process front, holding that the law effected a deprivation of property for purposes of due process analysis.  Just because the Commonwealth has the right to collect the payment in the first place "does not insulate [the Commonwealth] from providing meaningful procedures for the return of property that is rightfully plaintiffs', and as to which the Commonwealth has no valid claim prior to escheat."  For procedural due process purposes, the key point in time is not when the Commonwealth transferred the $ to the public kitty after collection, but rather "the overriding obligation of the Commonwealth, throughout the total process, to provide notice and a meaningful procedure to return to plaintiffs the property that is rightfully theirs."

The First Circuit then talks about what process is due (it must be individualized), but life is short, so we're moving on to the Court's analysis on the takings claim.

Plaintiffs argued that the Commonwealth couldn't collect the $ in the first place because it had no legitimate basis to do so.  Because the plaintiffs asserted this claim as a takings claim, this gave the Court of Appeals the opportunity to talk about how the Supreme Court's decision in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) [http://ftp.resource.org/courts.gov/c/US/544/544.US.528.04-163.html] has made clear that this kind of argument is not asserted under the takings clause, but rather is a substantive due process claim.  If there were a true takings claim in the complaint, the Court said, it was not clearly articulated by plaintiffs, and waived.  The Court then rejected the claim, re-treaded as a substantive due process claim, because it found the regulatory scheme rational, requiring the duplicate fees upfront in order to guarantee coverage, and not arbitrary as long as the Commonwealth provided meaningful notice on how to get the $ back.

So was there any takings claim to be had here based on these facts? 

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), not overruled in Lingle, the Court said that to take property, with or without compensation, the taking must substantially advance a legitimate state interest, and that the taking must be in "rough proportionality" to that interest.  Both Nollan and Dolan involved conditions - the state conditioned a permit based on the applicant giving up a property interest, and the Court was saying, hold the phone, under the unconstitutional condition test, just because the state can deny a permit entirely doesn't mean that it can condition granting a permit on forcing a property owner to surrender property rights.  Lingle then said that this precedent doesn't mean there's any stronger test than due process rationality in determining whether the state can take something. 

There is a kind of condition in this Puerto Rican law - you can't drive your car without ponying up bucks to the state - but you get that $ back if you hurdle the complexities of seeking the refund.  So this predicate doesn't seem to present a takings claim like that presented in Nollan or Dolan.  Hence, even if sometimes a claim disputing the rationality of the state's reasoning for imposing a taking is properly articulated as a takings claim and not a substantive due process claim, this would not seem to be one of those cases.  And even if it were, the test would be the same - rationality.

There's one little asterisk to this reasoning.  What the plaintiffs had to give up here was $.  Governmental $ requirements aren't  usually analyzed under the takings clause.  There's a very murky case called Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), which was all about money, and the plurality used a takings analysis, finding a taking, while the deciding vote, Justice Kennedy's, used a due process analysis.  His subsequent ruminations on some of the counterintuitive aspects of modern takings law have also explored the use of substantive due process clause instead of takings in some instances. 

So the line between when something is a substantial due process claim and when it's a taking claim remains, I think, somewhat obscure, and I'd phrase the claim both ways in my complaint if I had a situation like this.  Where in the end this gets you, phrased as one versus the other, I'm not too sure, since the current judicial view appears to be whatever constitutional clause invoked, the court reviews the legitimacy of the governmental action under a deferential rationality test. 

The final wrinkle in this analysis (at least for the purposes of this entry) is that some purposes for takings aren't too popular, e.g., economic development.  Remember Kelo v. City of New London, 545 U.S. 469 (2005) [http://www.cali.org/wiseman/editedUS/545/545.US.469.html]?  This was a 5:4 decision letting the government take someone's home to build a spanking new mall etc. that the government said would generate more tax income.  If that's ok, then when is the state prohibited from re-distributing property from one private owner to another, if the latter private party will allegedly improve the property for tax generation purposes?  That's what a lot of people asked after Kelo was decided, with the result that many states passed laws limiting their rights to take property for such purposes.  Whether Kelo would be decided the same way today is an interesting question.  If my takings claim involved a state objective falling into this economic development-re-distribution to another private owner  category, then whether the standard purportedly applied is rationable basis or not, my guess is the state's purpose would be subject to higher scrutiny as a practical matter. 

My specific question with this particular decision is remedy.  The decision said that the plaintiffs would get injunctive relief.  Do they get their money back?  If not, why not?  And if so, should they get it back with interest? 

If you have a property interest in your $, and the state takes it, then isn't the state using it to its benefit?  That's what the plaintiffs argued - that the law required a forced loan.  The First Circuit I think responded by saying this is ok under a due process analysis, as long as there's a reasonable mechanism to get it back.  How about under takings law?  In takings law, a plaintiff doesn't get compensated for reasonable "regulatory lag."  If there's a process, however, that no matter how vigilant you are, takes a long time to get your $ back, and you want to be compensated, then I think your claim isn't a procedural due process claim, but is either a substantive due process claim under Justice Kennedy's reasoning in Eastern Enterprises, or a temporary takings claim.

The usual takings claim dealing with regulatory lag is one in which one plaintiff has to wait years for relief, and the court usually says that's ok under the specific circumstances.  But what happens if the state has a regulatory scheme that takes less time than that, but the required lag affects a whole lot of people?  Should a shorter regulatory lag time be deemed unacceptable if it is built into a process that affects a large number of people?  Should it make any difference if you can prove that the state's motive for that lag time is to get the time value of that money?  Should you be allowed to show motive?  You can't in a due process claim not involving a suspect class.  Can you do it in a takings claim?  I can't tell from just reading the decision whether there was any argument made by the plaintiffs to this effect.  It could appear from this text that there's an argument that Puerto Rico set this up for the purpose of making it as hard for people to get their money back as possible, so that they wouldn't try, as opposed to setting this up with an unavoidable but unnecessary time lag to get the time value of everyone's money.  The latter might be a takings claim; the former I'm not so sure, and I'm not sure about the remedy - but it would seem a little odd not to get the time value of the money in the former context but get it in the latter.  If it's a due process claim under Section 1983, however, then there's qualified immunity, but if it's a taking, there's no sovereign immunity, and direct liability by the state.  Does that make a difference in result in this type of argument?  It seems to me that if it's a due process claim, the state can say, "oops, who knew?" plus you've got all those hurdles in getting $ from the state.  But if it's a takings claim, then aren't those defenses no good?      

The Court held that the state needed to provide meaningful notice to allow someone to seek a return of their property.  Isn't this another way of saying that the law is arbitrary absent such a provision?  And if I'm one of the people who had to pony up the $ for redundant insurance a long time ago, and my inability to get it back was caused by this arbitrary lack of notice of how to get my refund, then hasn't the state kept my $ - permanently retained my property without a legitimate basis for doing so?  And if so, why isn't that a taking, and why can't I get my property back?  I understand going forward why the ruling that this was a procedural due process problem which could be fixed by proper notice makes sense.  What I'm not so sure of is whether there's some sort of takings claim for the period prior to fixing the notice problem, as to individuals who lost their property due to the due process problem.   

Oh, how I could go on and on about this topic (and already have).  The only conclusion one can make with any confidence in this area is that there is nothing simple about a regulatory takings claim.      

Bizier v. Turner, retroactivity, the impact of jurisdictional v. prudential rules and estoppel

Back to looking at some recent decisions, and what better start but one in which we prevailed?  Bizier v. Turner, 2011 ME 116 [http://www.courts.state.me.us/opinions_orders/opinions/2011%20documents/11me116bi.pdf].  This was a Rule 80B appeal involving site plan review for a grocery store and pharmacy.  The bulk of the decision relates to language in the town's ordinance that probably doesn't have a lot of application outside this specific context.  There was, however, one interesting procedural issue that came up, which may be of wider interest.

At the time the Planning Board made its decision to grant the permit, the next step for an appeal was through the Board of Appeals, and only after that to the Superior Court.  A town warrant was issued to amend this ordinance to skip the ZBA step, which towns can do by statute, and to enact that change retroactively to before the date of the Planning Board's decision.  The town approved the change after 30-day period to appeal was over. 

Within the 30-day window to appeal, the appellants filed both a direct appeal in Superior Court and an appeal before the ZBA.  The parties then agreed to proceed directly through the Superior Court.  The SJC addressed whether this was ok.

The Court ruled yes, because retroactive rulemaking is fine under 1 M.R.S. s. 302, as long as it does not disturb vested rights, as we all know from City of Portland v. Fisherman's Wharf Assocs. II, 541 A.2d 160, 164 (Me.1988).  The Court said:  "Although there are grounds to object to the application of a retroactive ordinance amendment, none of the parties have done so in this case," citing the cases that discuss vested rights.

So, for example, the Town could not have changed its ordinance in a way that eliminated the right to appeal.  But that was not the effect here; instead, everyone was just skipping a step in the appeal that statute allows, with no harm to any party.

This result is logical and straightforward, and the takeaway is that procedural provisions in ordinances can be retroactive just like other provisions.

The only point that I would add, which the court did not discuss, is that previous case law makes clear that administrative exhaustion -- the need to progress through the ZBA step -- is prudential, not jurisdictional.  Cushing v. Smith, 457 A.2d 816, 821 (Me.1983) [http://174.123.24.242/leagle/xmlResult.aspx?xmldoc=19831273457A2d816_11265.xml&docbase=CSLWAR1-1950-1985].  This fact raises some interesting questions.

Because exhaustion is not jurisdictional, I think this means anyone can try skipping the ZBA step even if the ordinance requires it -- IF they can explain to the Court why the prudential rule should not apply.  That is one whopping big if.  But if the sky will fall down absent immediate judicial review, and/or you truly have a whizbang futility argument, then, at least as an abstract matter, I think this means that you can go directly to the Court and give it a shot.

Because the requirement is not jurisdictional, one might then ask, can parties waive or be estopped?  If, for example, the parties all agree that it makes sense to skip the ZBA step, can that alone be enough to get you past this hurdle?  If it's official enough, you can have estoppel against a town (but it has to be pretty darn official).  This is an interesting question.  My visceral response is that a court might  say that such an agreement is not dispositive, because it's the court's prudential rule, so the court gets to apply it however they want, whatever the parties say.  On the other hand, if the town has emphatically agreed, then it's their ordinance requiring the intermediate step, not the court, in the first place, so why can't waiver or estoppel principles apply?  Obviously, the court doesn't want everyone going straight to court willy nilly, but if the town (and all the other parties) conclude that it's a huge waste of time to proceed through the ZBA step, then why can't the town waive its own requirement?           

 

 

Broken Links to Maine Supreme Court Opinions

The Maine Courts have recently updated and reorganized their website.  It looks great; but unfortunately because of the reorganization all of the links previously posted have been broken. If you are looking for any Supreme Judicial Court opinions, they can be located at this location on the updated website:  http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml

Also, note that while the SJC doesn't usually hear arguments in December, they are this year. 

11-17-11 meeting with Judge Lipez

As promised, here's the low down on the latest lunch meeting with Judge Lipez.  As always, these are helpful opportunities to speak with and hear from the First Circuit.  About 20 lawyers attended.  It seems to me anyone who has any reason to be before the court should come to these quarterly lunches.   But if you can't make them, hopefully my summary is the next best thing.

1.  The Appendix.  There was a lot of discussion about what should be included and what need not be, given that the Court of Appeals now has electronic access to everything in the record.  After the meeting, Judge Lipez issued the following statement:

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"In counseled appeals, the district court no longer transmits a paper copy of the full record.  Rather, the district court will transmit to the circuit clerk electronically an abbreviated electronic record consisting of a copy of the notice of appeal, the order(s) being appealed, and a certified copy of the district court docket report.  These documents are used by the circuit clerk's office to open up the case on appeal and are usually attached to the first docket entry.  

Counsel should ensure that the addendum and appendix, combined, include those parts of the record relevant to the issues on appeal.  At the same time, the appendix should not be unduly large.  Not everything cited in the brief need be included in the appendix.   For example, some citations in the Statement of the Case or Statement of Facts help "set the stage," but are not really necessary to an understanding of the specific issues on appeal.  Thus, those portions of the record don't need to be in the appendix.

The judges do have access to the electronic record and may, if they wish, consult it.  See Fed. R. App. P. 30(a)(2) ("Parts of the record may be relied on by the court or the parties even though not included in the appendix.").  In addition, the district court transmits copies of documents not electronically available.  If a trial exhibit is critical to the issues on appeal, it facilitates matters if counsel ensures that the exhibit is transmitted.  However, the court of appeals can, on its own initiative, request the district court to transmit an exhibit.  So, the court of appeals judges do have access to the full record.  Counsel should not, however, assume that the court will do their work for them and should be sure that the appendix is adequate."

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Call me Cassandra, but compare this statement to my previous musings and conclusions of April 15, 2009, when the new appendix rule was issued, and Nov. 24, 2009, after another meeting with Judge Lipez discussing the appendix issue.  Questions crop up on this subject because, I think, lawyers don't want to spend the time and money thinking about their appeal upfront (at appendix designation time), and, aside from timing, they don't see why they ever have to go through this step because the record is available electronically.  Setting aside for the moment the timing issue, and the benefits of getting a handle on your appeal issues sooner rather than later, there is something to be said for abandoning the written appendix, and some appellate courts don't require them any more.  Others use deferred appendices, and still others have each side file their own appendix with their brief. 

Eventually, as I've said previously, the appendix will go away, as more and more court personnel get  used to reading everything on line (see my last entry on what this on-line reading can mean to how you present things). (I asked Judge Lipez whether -- see my previous entry - the court and clerks were reading materials on ipads.  The answer was some do, some don't.)  Ultimately, we may just be inserting hyperlinks.  For now, however, it's Captain Kirk time, not Captain Picard.  They still like printed copies of what you think is important in the record for them to look at, and they don't want to impose the cost and burden on the court side of printing out what they want to see in hard copy.  So remember, that's the ultimate touchstone - what is it that you want the court to review from the record, relevant to the disputed issues in your appeal?  What would a judge seriously considering your arguments want to see for him or herself?  No, it's not always an easy bright line; like many things in framing your appeal, you need to use some judgment.      

2.  Statistics. Folloing an ongoing trend, both here and elsewhere, the number of appeals are down - from a high of 1927 in 2006 to 1515 last year.  Maine stayed fairly steady at @ 8% of the total (the bulk comes from Mass and Puerto RIco).  Oddly, there was a 16% increase in civil appeals from Maine last year, but this is statistically insignificant, given that this just means 10 more appeals. 

There are different hypotheses for the general decline in number of appeals.  Judge Lipez noted that there was a big spike when the courts were sorting out sentencing issues in 2005-6, and when there were changes to immigration review, and now those spikes have receded.  I'd also attribute it to the fact that there are fewer cases at the trial level.  Mediation and arbitration are less expensive and more flexible than arm wrestling with e-discovery etc.   

Judge Lipez noted that in 2001-2 he had 29 sitting days - the norm was sitting @10 times each year for 3 days.  Last year he sat for 20 days, and this year, 23.  He issued an annual high of 58 opinions in the past (including concurrences and dissents).  This year it will be 39.

At the Supreme Court level,  one result of taken fewer cases (or at least a concurrent phenomenon) has been longer opinions.  I haven't checked to see if First Circuit decisions are getting longer.  As to whether this reduction means decisions will be speedier, the average time from notice of appeal to disposition is now 11.5 months in the First Circuit.  The national average is 11.3.  Last year, the First Circuit took 11.5 months, too, but in the past has taken longer.  

3. The budget.  My takeaway from this discussion is that the clerk's office is going to be hammered with staff reductions.

4.  ECF.  After passing on the compliment that the clerk's office thinks Maine attorneys are the bee's knees of those with whom they interact, Judge Lipez noted that when an appeal is first filed, and there have been a gazillion lawyers representing a party at trial but only one or 2 of them are ECF registered, it's a pain for the clerk's office, because it has to send notices to every non-ECF registered lawyer by mail.  I don't know what the quick solution to this is, except to have all the trial lawyers ECF registered at the First Circuit.

5.  CAMP.  The same message was conveyed as in previous discussions.  Judge Lipez noted that settlement counsel has gone up as far as Augusta for meetings, and remains wiling to hit the road.  His settlement statistic, for those appeals that go to CAMP mediation, is @40%, which I think is about the norm across appellate courts, when, as in the First Circuit, there is wiggle room to focus just on those appeals with some promise of settling.  Judge Lipez noted that there may have been some snafus in CAMP notices, so if you want a CAMP settlement conference, but don't get your notice, be proactive and call them.

6.  CJA vouchers. My takeaway here (and I'm not in the program) is that the Court is likely to be less willing in the future to allow deviations from the standard recoupment amounts.  You should use the forms provided when asking for deviation.  Note that the junior judge reviews vouchers, so that task now goes to Judge Thompson.

7.  Panel assignments. Judge Lipez noted some exceptions to random assignment - (a) after a remand, if the matter goes up again; (b) if the duty panel has rejected a recommendaton of summary disposition, that panel may get the appeal; and (c) if the argument date is continued, if scheduling makes it possible for the previously scheduled panel to hear the matter.  I asked whether the duty panel is likely to get an appeal in which it has entered a preliminary ruling, like ruling on a stay motion.  The answer was maybe, but scheduling issues may make this impractical.  

Also, compare the First Circuit's position on oral arguments - practically everything but pro se, social security and immigration cases get an argument - with the report in my previous entry from Judge Jones that an argument in the Fifth Circuit means that the outcome may be up for grabs.  There is a wide spectrum of what having an oral argument means among the appellate courts. 

8.  Judge LIpez's caseload.  He will become senior active at the end of the year.  This basically means that he can't hear en banc matters any more (there are usually one or two of these a year, unlike e.g. the 9th Circuit, where en bancs can be a matter of course).  He will keep a full load at least through next June.  He may taper some after that, to e.g. 75%.  He noted that among them, Judges Selya and Stahl and Justice Souter (see previous entries about the Kevin McHale of our Circuit) produce as much work as a full time judge.  Note that Justice Souter sits January-March, 3 days each month, so if your argument is scheduled then, that's when you may have a chance of being heard with him on the panel.  If so, you'd better be prepared (yes, you should always be prepared) - he is always on his game, can ask pointed questions (in a nice way), and may probe that weak spot you were trying to toss under the legal bed with the dust bunnies. 

9.  Replies.  Staff Attorneys report that they are disturbed by the lack of reply briefs in some cases, which does not send a good message.  This is pretty startling to me, since often the reply brief is the most important, because the briefing process has distilled the issues down to their essence, which is what the court is looking for.   

Finally, in the general discussion after Judge Lipez's report, Peter Murray commented that with argument time so brief, it could be more productive if the parties were alerted prior to the argument as to what were the issues of interest to the panel.  Some present noted that Judge Hornby sometimes provides this kind of notice.  This would be a delightful development, in my view, but I'm not sure logistically how it could happen with a panel of judges, who typically do not discuss the case with each other before argument.  Still, sometimes courts will order additional briefing on an issue they have spotted that has not yet been properly addressed.  Maybe there can be some easy process in which a panel could just email among each other as to whether there are any particular points on their wish list for illumination at the argument.  If so, the panel could share that/those point(s) with the parties prior to argument.  This experiment could start small, and not morph into a regular or required step unless or until the court thought it fruitful. 

Next entry, it's back to mining recent decisions from the Maine SJC for interesting and useful nuggets.

         

  

This is your brain on e-briefing, or the AJEI Summit, Part II

Yesterday was the quarterly lunch with Judge Lipez, and I shall blog on that anon.  But first, let's finish up with the AJEI summit.

There were a lot of good programs, but I'm only going to highight some bits that could be of practical use for the appellate practitioner.

The Supreme Court. 

• Erwin Chemerinsky talked about the past year before the Supreme Court, while Drew Days and Paul Clement talked about the current/upcoming session.  These sessions were very good, very concise and clear, but perhaps of limited immediate practical application. One interesting observation was that with the retirement of Justice Stevens, if the swing vote, Justice Kennedy, aligns with what is viewed as the liberal 4 members of the Court, he is the most senior and will be assigning the opinion.  Also, one speaker opined that one reason Supreme Court opinions are getting longer these days is not just because they are taking fewer cases, but because the Supreme Court now consists of mostly professors and previous judges, not practitioners.
• As to the upcoming session, Paul Clement indicated that the Alvarez stolen valor act case could produce some interesting learning on what false/misleading speech is constitutionally protected - there's a case from @10 years ago saying that false solicitations can be regulated, so I got the impression that Clement thinks the statute will be upheld, although liberal or conservative, this Court loves the First Amendment and doesn't divide up rote conservative-liberal in free speech cases (except with issues like elections/financing).  He also predicted that the preemption cases up for review will be narrowly decided.  Currently, preemption law has some counterintuitive aspects to it (e.g., you can sue for inadequate drug labeling, except if it's a generic - a big if, and not much logic to that distinction.)  It doesn't look like the Court will be coming up with any grant harmonizing preemption pronouncements this term. 
• There was an excellent presentation on what the Supreme Court looks at in accepting/rejecting cert. petitions, again a topic of interest to a limited group, so I won't go into the substance.  Note that if you won below, it's bad news to get a petition granted - the Supreme Court flips the decision below 75-66% of the time.  That's one reason to file an opposing brief.  Another is that if lightning strikes and your opponent's petition is granted, you want to start from the get-go framing the issues and presentation to help your cause.
• There was a good presentation from someone new to the Supreme Court experience who made an interesting point that you need to keep an eye on what's going on with the remand in any case that might have a petition granted.  Some funky things can happen in the meantime during that limbo petition for certiorari period that could affect the matter. 

Judicial decisionmaking.  There was a panel of all judges on judicial decisionmaking.  Here are some snippets.

• Judge Edith Jones echoed points by other judges that attorneys should never forget that the personalities on the panel matter - the resulting decision reflects a group ethos - a melding of views as opposed to the view of the drafter alone had s/he been left to his/her own devices.  
• The judges want to keep things moving, and hence can be attracted by waiver arguments. 
• They are also always conscious of their role as opposed to that of the executive and legislative branches. 
• One important point they made was that the judges are generalists, and you, steeped in your particular case, may not understand that some background and education could be helpful to them; otherwise, you may have them or their clerks roaming around on the internet on technical matters and you have no idea what they are looking at.  This is a point, I would note, that should be kept in mind at the earliest stage, at trial, or with an administrative appeal, at the administrative level.  Again, everyone at the administrative level is often talking the same advanced techno speak.  If you, as the person keeping an eye on what the record will look like for potential appeal purposes, get the chance, make sure that some intro explanatory material has been put into the administrative record, which you can cite later to educate the judges. 
• The judges said that they really like visuals, pictures, photos etc. put into the text of brief itself, as opposed to addenda or the appendix.  As I noted previously, many commented that they had ipads now.  So they are reading briefs anywhere, on the road etc.   
• Yes, they admitted, they do consider who the judge was below.  Byut you should not make too big a deal out of it.
• Generally speaking, the judges either start their review with the decision below, then the briefs, or look at the briefs just enough to identify the issues on appeal, then go look at the decision below.
• The judges probably haven't looked at the record before oral argument; it's only after the argument the clerks carry out a painstaking record review. 
• Make the brief readable - have an intro, develop a theme.
• Judge Jones said that the Fifth Circuit is pretty choosey on what it gives oral arguments - if you get one in that court, it could mean the result is up for grabs.

Luncheon interlude.  At one lunch, Scott Turow spoke about law and literature.  He's a good speaker and a good writer - of both novels and briefs - I interned at the U.S. Attorney's office in Chicago when he was there before fame and fortune, and he was highly regarded as an AUSA.  One point he made about the difference between writing novels and briefs is that with criminal case briefing, the defense just needs to raise doubt and not identify who did it; but if you are writing a mystery, you'd better answer that question.

The Constitution.  Professor Klarman from Harvard gave a great presentation on the founding of the Constitution.  If you are into originalism or not, it's useful, I think, to understand the context in which provisions were adopted.  His explanation of the Ninth Amendment, for example, was illuminating.   

The business of appellate practice.  There were two sessions on this topic, one on the relationship between appellate and trial counsel, and one on developing an appellate practice.  The short summary is that there seems to be a greater awareness of the usefulness of an appellate specialist, and his or her involvement early on in the case.  For example, trial lawyers can usually identify how to preserve points (or else you need a new trial attorney).  But if an appellate lawyer is involved at that stage, visualizing how everything is going to play out, s/he may help put on the record some specifics, beyond the preserving objection itself, to articulate the specific prejudice from the ruling that can help down the road. In discussing marketing, interestingly, two participants said their firms had no blogs, because they were afraid of offending a potential client or court, while one participant noted that his firm had  two blogs and didn't see a problem.  15 states have specialization programs, 6 for appellate practice.  The participant from New Mexico aided his practice by getting an appellate specialization approved that was useful for him as a marketing tool.

Work-life balance.  The speakers gave some interesting statistics.  E.g., where do the women who leave law firms for w/l balance go?  37% in-house, 9% government, 8% non-profits, 24% non-lawyer jobs and 22% unemployed.  6% of attorneys in law firms are part-time (70% of that 6% are women).  This is compared to 14% who work part time in other professions.   

E-reading. This last session was the one I found most interesting - given all these ipads and reading on screens, how does this change affect how we think and how to draft your brief?  There are real physical considerations here.

• For example, dopamine is released when finding answers for quick searches - like cocaine.  So that need for a quick answer is addictive.
• Research no longer involves having to hone in from a broad topic to get your specific answer any more, a process in which the specific answer was presented in context.  Now people just look for and expect that quick, specific answer.
• Everyone is multi-tasking now, switching from one activity to another.  Many people now have two screens in front of them these days - one is the brief they are reading, the other their outlook with all those enticing ongoing emails. (Or maybe they have one screen, but they get those pop-up email notices.)  This going-back-and-forth is not easy - it actually dilutes memory and is harder on the brain for the general populace (except, strangely, about 17-18%, almost all of whom  are women). 
• In short, no one can concentrate any more.  And when you read on screen, it's 30% slower, with the result that to compensate, people are skimming even more than they do with a printed page.
• Picture a blank screen.  Then visualize a big capital F on that page.  That's how people read generally - they read across the top, then along the left side and across in the middle if there's a heading.  This phenomenon is even more pronounced with screen reading - they showed how the F was lit up with mushy, broader absorption outside those lines than on a printed page.  On the screen, everything outside the F is grey.  This is because people are unconsciously constantly looking for the structure, to speed them along and help them skim. 
• People are reading more today, and absorbing more, but it's not deep reading.  If you spend all day on a screen, you have a physically hard time reading a long text or book.
• So what to do in this Brave New World?  People are only reading the first page, and each argument you have is like a new chapter.  You need a great intro, and you've got to use a visible and intuitive structure for your brief to enable skimming that works for you.  No more long paragraphs.  Lots of headings, outlines, bullets, and numbered points.  Put important information in the heading and first sentences, and put examples in bullets that the readers can skip if they want to.  Make it look less like Dickens and more like a good website. Your first Google page doesn't have a lot of text on it; rather, it's got lots of roadmapping. 
• When you are sending the court a pdf, make sure you bookmark it.  If you can, edit your bookmark to have short 4-5 word headings, because you can't see any more than that on an ipad.
• You have to make the brief as simple and accessible as possible.  Obvious structure, visuals, and no string cites.  Include and don't screw up the pin cites.  You need to make it easy for the reader to go as quickly as s/he wants and still pick up the major points, while laying out an easily observable roadmap that facilitates the interested reader to dig into the weeds.   
• While many of these points are useful even for printed-out briefs, the takeaway was that it's even more important with screen reading.      

This is a long entry, and it just scratched the surface.  It was a very useful conference.

   

Ipads, or what I learned at the AJEI summit (part I)

I'm back from the ABA AJEI summit for appellate practice, which was very educational, but before I launch into a blow-by-blow, l thought I'd use this entry for an overview and theme highlights.

First, this conference differs from the DRI and AAAL conferences in that it's a joint court-lawyer group.  The private practitioners were outnumbered here about 3:1 by judges and court personnel.  

Some themes that ran through multiple presentations include the following.

Ipads.  The courts are apparently all getting them - 25 9th Cir judges use them now, many other circuits also budget for these, and lots of state courts even with budget constraints are buying them, too.  And even if some older judges aren't using them, the younger judges are and the clerks are reading everything on line.  What this means specifically in terms of what your brief should look like, I will get into more detail in discussing a specific program focusing on that issue.  But at a minimum, I think it would behoove all who don't have ipads now at least to go off to Apple.com and see what a lot of judges are seeing.

Appellate practice +. Even the trial litigator presentor was extolling the benefits of working with the appellate practitioner early on through the process from the beginning, and how the appellate lawyer is really more than that - one firm calls them at the trial level the "motions" specialist.  Various representatives of different constituencies (including clients), talked about the usefulness of the appellate practitioners' views early for strategy and looking at the big picture.  The trial litigator is really in the trenches, dealing with discovery and fact collecting, while the appellate worker has a more holistic perspective.  One speaker referred to the trial litigator as the play-by-play announcer, and the appellate specialist, the color commentator.

Okay, so Day 1 began with a conversation with Justice Sotomayor.  This was off the record, so I'm not going to discuss what she said (not that any of it was particularly controversial), but I would note that she does seem like about the most straightforward (if not blunt) Supreme Court Justice I've ever heard speak, which was nice.  She also said one thing about style I thought interesting (that she has stated publicly before).  She said that lawyers need to understand what their particular personality and style is, and be true to it, but also must be flexible enough so that if another approach is required, they can do that, too.  So, for example, if your natural way of arguing is less or more aggressive sounding, that's fine - but be prepared to go the other way if you must. 

The next session was on oral argument, and this was a panoply of Supreme Court practitioners like Paul Clement.  So I'm only going to highlight the points also useful for those of us in the trenches who, strangely, may not have clients able to afford doing 4 moots:

             - read the cases at some point in chronological order, to get a feel as to how the law developed.  I thought that was an excellent recommendation.

            - do the old Roberts notecard preparation - write out short and snappy answers to anticipated questions on notecards, so you know you can answer concisely.  You can also shuffle these around and it helps you prepare how to stay on message. 

            -  Because Paul Clement, who never carries anything to the podium, was there, there was a lot of discussion about what to bring to the podium. Most took cheat sheets of some sort with them.  Clement's point was that it invites conversation to work without notes.  But I think you can do that with a few pieces of paper there too.  The common point - invite conversation - is the one that counts. 

            -  the majority view was as the respondent, use your opening two minutes to re-set the argument.  The best way to do this, however, is to tie the point that you always wanted to make to one of the questions or comments of the court during the petitioner's argument.  And use the judge's name.   It's just human nature to perk up and listen when you hear your own name (not just human - remember that Far Side cartoon of the dog looking at its owner talking to it, with all the dog hearing untelligible except his name?  -- "Xrgh fido, xxrty fido," etc.?)  So say "I'd like to respond to the issue raised by Justice X," before launching into your point.

            - for rebuttal, the consensus was (a) always reserve time, because that keeps your opponent honest, knowing you can get up and correct him; and (b) don't rise to the bait of petty squabbles.  Focus on the issue that will move to the vote you need.  At rebuttal, the court has often started thinking about the next step, so you must grab their attention.

            - the hijacking judge - first, the more aggressive the judge gets, the more respectful you get.  Understand that s/he is probably trying to get you to concede something, and will leave you alone if you do, so you need a firm grasp of what you can concede before argument; also, if the other judges aren't interrupting, this can be an opportunity - stay with the judge and focus.

            - note that friendly questions can be dangerous not just because sometimes you can't tell whether it is friendly, but because you need to get everyone else's vote, and you need to concentrate on the questions of those who may not yet be convinced.  So think about how to answer in a way that could persuade the yet-persuaded votes you need.

            - Judge Sutton on the Sixth Circuit said that the thing lawyers probably understand the least about this process is the desire among the court to drive toward a consensus.  They want to avoid dissent, and build a unified path.  So it isn't just a matter of persuading individuals judges, who may have different nuanced views; rather, it's persuading the panel of a position that they can all agree to.  I thought this was a very good point, too.

            - on the old question how much does argument matter, the consensus was that it's easier to lose at argument as opposed to win. 

            - think of the briefs you file and the argument as steps on one path.  Good briefs focus on the best arguments, while the argument is to get you over the finish line.  The argument is not a re-hash - it's all one continuum, and you need to keep this in mind and frame accordingly from the beginning.

More to come.                  

Spiteful trees and other recent decisions

So, last entry I said that the Maine SJC had issued a few decisions of note from the appellate perspective, and here they are:

1. Witham Family Limited Partnership v. Town of Bar Harbor, 2011 ME 104 http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me104wi.pdf

This was an 80B dismissed by the Superior Court for lack of standing.  The takeaway here is that the standing test is rather liberal in the 80B context when defining the needed participation below.  Previous decisions made clear that it wasn't necessary whether the participant below was an individual versus an organization and it was vice versa in the appeal - as long as you participated in some way as a practical matter, "you" liberally defined, that was enough (assuming a particularized interest).  This decision confirms that point.  The lesson here is, to avoid these questions down the line, it's always prudent in the administrative hearing to be clear about the universe of people for whom the speaker is speaking.        

The question the decision raises for me is whether you've adequately participated in a Rule 80B or 80C if you only speak in the public comment part of the meeting.  Some language here suggests yes.  If so,  minutes for such meetings had better get the names straight for each speaker.  Some proceedings can also have rather lengthy public comment sessions, sometimes lasting for hours over many days in  multiple venues for certain state administrative activities.  My understanding is that none of those comments is evidence for the purposes of the record, so I'm not sure how clearly they keep the record of who spoke.  If participation as one of those commentors is enough, then the names must be retained in that record nonetheless. 

2.  Bond v. Bond, 2011 ME 105, http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me105bo.pdf

This was a divorce appeal in which the appellant challenged an order entered by the District Court granting the appellee's motion to have two post-judgment motions for relief heard by the same referee whose report formed the basis of the parties’ divorce judgment.  The appellant claimed that (1) the court’s order was immediately appealable; (2) although he had agreed to have a referee hear the divorce case, the court erred in appointing a referee to hear the post-judgment motions over his objection pursuant to M.R. Civ. P. 119; and (3) the court lacked authority pursuant to 19-A M.R.S. § 252(1) (2010) to appoint a referee to hear the particular motions at issue.  The majority held that  no exception to the final judgment rule applied, so they dismissed the interlocutory appeal without reaching the merits.  The dissent (Alexander, J. and Jabar, J.) disagreed.  The majority said that the issue could be reviewed later because if it shouldn't've gone before a referee, there can be a remand to fix that.  The dissent basically said that because the court can always accept or reject a referee's input at its discretion, with no deference, that's really not the case, so the collateral order exception should apply.

 3.  Peters v. O'Leary, 2011 ME 106.http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me106pe.pdf

The Peters own a parcel of land in Ogunquit that abuts and is uphill from oceanfront property owned by O’Leary. After a series of disputes, O’Leary planted a row of at least seventy-four trees near the parties’ 125-foot-long boundary, which obstructed ocean views from the Peterses’ newly constructed home. The Superior Court found that O’Leary had created a nuisance pursuant to Maine’s spite fence statute, 17 M.R.S. § 2801 (2010), and the common law, and granted injunctive relief.  The basic issue was whether a tree could be a "structure" under the statute, and the answer was yes.  Justice Alexander wrote a separate concurrence to say that this didn't mean that if trees happen to grow and obscure a view, you have a claim against your neighbor.  

The curious part of this decision for me is the following.  To show the malice required, one factor noted was that the CEO told the defendant that if someone plants a tree in a shoreland zone it can't be removed later.  But part of the relief ordered was removing some of the trees.  I asked two different environmental attorneys whether if someone plants a tree illegally in a shoreland zone, it can be removed.  They both gave the same answer;  "Why Cathy, what an interesting question."

So if someone trespasses onto your property and plants a tree illegally, it's unclear whether you can just remove it.  From this decision, it appears that the court has the power to order a spite tree fence removed.  I would find it difficult to believe that a court would not have the power to order an illegal structure removed, wherever located -- but do you have to always to get a court order if you just want to remove it yourself?  Apparently, you aren't, as a general matter, supposed to remove vegetation from shoreland zones unless they are safety hazards.  Could you cite this as an argument against equitable relief in any suit based on illegal planting for whatever reason?

I'm thinking that the number of people wandering the State of Maine illegally planting vegetation in shoreland zones is not huge, but still ....