A Rule More Observed in the Breach

November 17, 2014 § 6 Comments

Just a friendly reminder that MRAP 25(b) states in part:

“In all cases a copy of any brief on the merits shall be served on the judge who presided at the trial …”

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§ 6 Responses to A Rule More Observed in the Breach

  • Judge, the Clerk of Court has been flagging attorneys who fail to note that they are serving the trial court. I used a fairly typical certificate of service under MEC on a recent brief, and it was determined that I needed to add a line indicating I had also served the trial court via U.S. Mail. I think that emphasizing that will hopefully enforce the Rule more.

    • thusbloggedanderson says:

      David is correct. My own question is, how many trial judges read these briefs?

      • Larry says:

        I have to confess that I skim them and turn them over to my staff attorney who does read them.

      • thusbloggedanderson says:

        Probably more than sufficient. My own two cents is that the rule really exists to discourage appellate counsel from saying intemperate things about the trial court.

  • hale1090 says:

    On a related question of provide the trial court with a brief before trial, particularly in a complex case. I believe you have discussed not providing a trial brief arguing facts the day of trial on this blog before; in effect “sandbagging” everyone the day of trial. I get that. What is the best practice in providing pertinent authority to a chancellor in a memoranda on which he /she could refer rather than simply rely solely on his experience or his law clerk. Is a list of authority appropriate with a summary of the holdings allowing the chancellor to hear the evidence? What is most helpful while not succumbing to the temptation we have of becoming advocates before the evidence is heard.

    • Larry says:

      You can’t go wrong by asking the judge in advance if it would be all right for both sides to submit either a list of authorities or copies of cases that might be helpful, or even a brief, if the judge would benefit from it. I would stick to the law, though. Pre-trial to me is not the place to “preview” the evidence — admissible and non — for the judge.

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