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Appellate Practice in Massachusetts

The art of appeal

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  • Product Number: 1950287EBK
  • Publication Date: 8/23/2022
  • Edition: 4th Edition 2016, wtih 2020 & 2022 Supplements
  • Copyright: © 2022 MCLE, Inc.
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  • Product Description
  • Table of Contents
  • Editors & Authors
  • Product Description

    Product Description

    A time-honored authority, Appellate Practice in Massachusetts examines the appellate process at every level and court in the Commonwealth, in both civil and criminal matters. It covers the appellate process and offers valuable insight into the art of effective appellate advocacy in civil and criminal cases. This manual includes practical information on how to assess the decision to appeal, how alternative dispute resolution works at the appellate level, standards of review and the mechanics of appeal in the various courts. In-depth guidance is offered on how to draft appellate briefs. The role of the amicus brief, oral advocacy and post-decision practice are featured, as is single justice practice.

    Also featured, and previously available only to Massachusetts courts, is an Appendix containing selected Massachusetts cases on the standards of appellate review. This list of selected cases is an invaluable aid for researching key legal issues in cases where appellate review turns on error of law, abuse of discretion and prejudice.

    Recent updates:

    • Update: August 2022

      Dear Subscriber:

      Thank you for updating your copy of Massachusetts Appellate Practice with this supplement. Inside, you will find new material on numerous topics, including the following:

      • Massachusetts District Court—How to take an appeal. See chapter 5 for the inclusion of a 2021 decision finding that a trial judge properly denied a motion to extend time for the filing of the appeal pursuant to Dist./Mun. Cts. R. A.D.A. 4(c), finding that the plaintiff failed to show either good cause or excusable neglect for the delay.
      • Extending time for an appeal in Massachusetts District Court. Chapter 5 also discusses a 2019 decision wherein a court allowed a motion to extend time for the appeal, but the appeal was not filed until more than 180 days had passed between the entry of judgment and the proper filing and docketing of the appeal. It was decided that neither the appellate division nor the trial court has the authority to extend the appellate time frame more than 180 days after the entry of judgment to file an appeal.
      • Exceptions to finality requirement and doctrine of present execution. See chapter 8 for mention of a 2020 case decision about orders denying the right to proceed pro se as personal representative of an estate where the personal representative is also the sole beneficiary and there are no beneficiaries or creditors other than the litigants.
      • Supreme Judicial Court review of interlocutory matters pursuant to court's discretionary powers. Chapter 8 also notes the one reported case in which the Supreme Judicial Court appears to have exercised its statutory authority under G.L. c. 211, § 4A to transfer a case from a lower court to itself at any stage in a proceeding.
      • Stay of execution. Chapter 10 provides two recent case decisions. One clarifies the nature of the "likelihood of success" factor, explaining that "the burden on the defendant to establish the requisite possibility of success is not onerous; yet the defendant must show that there is at least one appellate issue of sufficient heft that would give an appellate court pause". The other holds that granting a stay of execution of sentence in connection with a motion for a new trial, or in connection with an appeal from the denial of such a motion, requires the judge to make a case-specific finding of exceptional circumstances in addition to a finding that the other requirements for a stay have been met.

      We at MCLE trust that you will find this new content useful in your appellate practice and valuable in keeping your law library current.

      Cordially,

      Maryanne G. Jensen, Esq., MCLE Director of Publications

    • Update: March 2020

      Dear Subscriber:

      Thank you for choosing to keep your volumes of Massachusetts Appellate Practice current with this 2020 supplement. Inside, you will find dozens of new case decisions and pertinent information on a spectrum of topics of interest to the appellate practitioner, including the following:

      • Practice and procedure in the single justice session: Chapter 1 offers extensive new discussion of recent decisions surrounding petitions for relief under G.L. c. 211, § 3 in the court's single justice session, also known as the county court. Find several recent case citations, including Commonwealth v. Fontanez, 482 Mass. 22 (2019), wherein the court explained in detail how single justices approach such petitions. For a discussion of the single justice practice in the Appeals Court pertaining to a stay or injunction pending appeal, see Chapter 22 of this book.
      • The scope of further appellate review: See Chapter 3 for discussion of several cases decided between 2017 and 2019, wherein the court has exercised its option to limit the scope of further review.
      • Preserving the right to appeal via conditional pleas: See Chapter 6 for a discussion of the Supreme Judicial Court's 2019 amendment of Rule 12 of the Massachusetts Rules of Criminal Procedure, allowing for conditional guilty pleas whereby defendants can preserve their right to appeal.
      • Frivolous appeals: Chapter 8 offers extensive new discussion surrounding a petitioner's need to evaluate the risk that an appeal will be considered frivolous. This discussion is in the context of a broad treatment of the risks related to appeal.
      • Standards of review: Chapter 10 reports on 2019 amendments to Mass. R. App. P. 16(a)(9)(B), the rule governing the argument section of an appellant's brief was revised to require that the appellant address the applicable standard for each issue on appeal.
      • Recent amendments to the rules: See Chapter 11 for a summary of the 2019 amendments to the Massachusetts Rules of Appellate Procedure, along with practical guidance to practitioners with regard to the subdivision and internal renumbering of certain rules, along with the relocation of certain provisions from one rule to another, and the need to take care when researching, reading, and citing pre-2019 decisions interpreting the rules.

      We at MCLE trust that you will find this supplementary material useful in your appellate practice, and valuable in keeping your library current.

      Cordially,

      Maryanne G. Jensen, Esq., MCLE Director of Publications

    • Update: May 2016

      Dear Subscriber:

      Thank you for choosing to keep your volumes of Massachusetts Appellate Practice current with this 2016 edition. Inside, you will find dozens of new case decisions and pertinent information on a spectrum of topics of interest to the appellate practitioner, including the following:

      • Requests for leave to appeal: See Chapter 21 for discussion of a 2014 case that provides the most up-to-date guidance on the procedural timing requirements for applications for leave to appeal under Mass. R. Crim. P. 15(a)(2) and should be reviewed by counsel prior to filing an application.
      • Application for further appellate review: See Chapter 22 for discussion of Commonwealth v. Pike , 467 Mass. 1008, 1008–09 (2014) (reversing decision of Appeals Court where Commonwealth failed to present sufficient evidence to warrant defendant's conviction for failure to register as sex offender).
      • Rebuttal: See Chapter 18 for the judicial author's candid advice regarding proper use of rebuttal time.
      • The amicus brief: See Chapter 17 for a detailed new discussion of procedures, best practices, and the Supreme Judicial Court's current thinking regarding the filing of amicus briefs in various types of cases.

      We at MCLE trust that you will find this new edition useful in your appellate practice, and valuable in keeping your library current.

      Cordially,

      Maryanne G. Jensen, Esq., MCLE Director of Publications

  • Table of Contents

    Table of Contents

    expand all
    Chapter 1 expand

    Supreme Judicial Court

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    A. W. Phinney, III, Esq., Supreme Judicial Court, Commonwealth of Massachusetts
    Chapter 2 expand

    Massachusetts Appeals Court

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    Barbara Margaret Farrell, Esq., Appeals Court, Commonwealth of Massachusetts
    Chapter 3 expand

    Allocating the Appellate Caseload

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    Exhibit 3A

    - Reflections on the Massachusetts Appellate System Buy Form
    Chapter 4 expand

    Court of Appeals for the First Circuit

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    Judith H. Mizner, Esq., Federal Public Defender Office
    Chapter 5 expand

    Appellate Divisions of the Massachusetts District Court

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    Hon. Mark S. Coven, Quincy District Court, Commonwealth of Massachusetts

    Exhibit 5A

    - Checklist for Appealing a District Court Decision to the District Court Appellate Division Buy Form
    Chapter 6 expand

    Preserving Appellate Rights in the Massachusetts Superior Court

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    Scott H. Kremer, Esq., Kazarian Law
    Katherine E. McMahon, Esq., Hampden County District Attorney's Office, Commonwealth of Massachusetts

    Exhibit 6A

    - Pretrial Preservation of the Right to Appeal in Civil Cases Buy Form
    Chapter 7 expand

    Preserving Appellate Rights in the Massachusetts District Court

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    Hon. Zachary Hillman, Administrative Office of the District Court, Commonwealth of Massachusetts
    Chapter 8 expand

    Analyzing the Decision to Appeal

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    Chapter 9 expand

    Alternative Dispute Resolution in the First Circuit

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    Hon. Patrick J. King, United States Court of Appeals

    Exhibit 9A

    - Notice of Mandatory Pre-argument Settlement Conference Buy Form

    Exhibit 9B

    - Reserved

    Exhibit 9C

    - U.S. Court of Appeals for the First Circuit Civil Appeals Management Program Buy Form

    Exhibit 9D

    - Checklist for the Settlement Conference Buy Form
    Chapter 10 expand

    Standards of Review

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    Alex G. Philipson, Esq., Superior Court, Commonwealth of Massachusetts
    Chapter 11 expand

    Mechanics of Appeal in the State Courts

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    Barbara Margaret Farrell, Esq., Appeals Court, Commonwealth of Massachusetts
    Francis V. Kenneally, Esq., Supreme Judicial Court, Commonwealth of Massachusetts
    Hon. Peter Sacks, Appeals Court, Commonwealth of Massachusetts
    Chapter 12 expand

    Practice Before the U.S. Court of Appeals for the First Circuit

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    Judith H. Mizner, Esq., Federal Public Defender Office
    Chapter 13 expand

    The Appendix and Brief: A Judicial Perspective

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    Hon. Gregory I. Massing, Appeals Court, Commonwealth of Massachusetts

    Exhibit 13A

    - Appeals Court Checklist for Preparation of Brief and Record Appendix Buy Form

    Exhibit 13B

    - Appeals Court Letter Regarding Rejection of E-Filed Brief or Appendix Buy Form
    Chapter 14 expand

    The Appellate Brief: A Practitioner’s Perspective

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    Dana A. Curhan, Esq., Curhan Law Office
    Chapter 16 expand

    Exhibit 16A

    - Representative Cases in Which the Attorney General Has Filed Briefs as Amicus or Intervenor Buy Form
    Chapter 17 expand

    Role of the Amicus

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    Joanne D'Alcomo, Esq., Jack Mikels & Associates, LLP

    Exhibit 17A

    - Sample Motion for Leave to File Amicus Brief in First Circuit Buy Form

    Exhibit 17B

    - Sample Motion for Leave to File Amicus Brief Buy Form

    Exhibit 17C

    - Sample Motion for Leave to File Amicus Brief in Lower Court (United States District of Massachusetts) Buy Form
    Chapter 18 expand

    Oral Argument

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    Hon. Ariane D. Vuono, Appeals Court, Commonwealth of Massachusetts
    Chapter 20 expand
    Chapter 21 expand

    Single Justice Practice in the Supreme Judicial Court

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    Maura S. Doyle, Esq., Supreme Judicial Court, Commonwealth of Massachusetts
    Chapter 22 expand

    Single Justice Practice in the Massachusetts Appeals Court

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    Patricia Campbell Malone, Esq., Appeals Court, Commonwealth of Massachusetts
    Joseph F. Stanton, Esq., Appeals Court, Commonwealth of Massachusetts
    Chapter 23 expand

    Single Justice Practice in the Court of Appeals for the First Circuit

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    Judith H. Mizner, Esq., Federal Public Defender Office
    Appendix

    Selected Massachusetts Cases on Standards of Review

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  • Editors & Authors

    Editor(s)

    Hon. Peter Sacks, Appeals Court, Commonwealth of Massachusetts, Boston

    Author(s)

    Hon. Mark S. Coven, Quincy District Court, Commonwealth of Massachusetts, Quincy
    Dana A. Curhan, Esq., Curhan Law Office, Boston
    Joanne D'Alcomo, Esq., Jack Mikels & Associates, LLP, Quincy
    Hon. Joseph M. Ditkoff, Appeals Court, Commonwealth of Massachusetts, Boston
    Maura S. Doyle, Esq., Supreme Judicial Court, Commonwealth of Massachusetts, Boston
    Barbara Margaret Farrell, Esq., Appeals Court, Commonwealth of Massachusetts, Boston
    Hon. Zachary Hillman, Administrative Office of the District Court, Commonwealth of Massachusetts, Boston
    Francis V. Kenneally, Esq., Supreme Judicial Court, Commonwealth of Massachusetts, Boston
    Hon. Patrick J. King, United States Court of Appeals, Boston
    Scott H. Kremer, Esq., Kazarian Law , Boston
    Patricia Campbell Malone, Esq., Appeals Court, Commonwealth of Massachusetts, Boston
    Hon. Gregory I. Massing, Appeals Court, Commonwealth of Massachusetts, Boston
    Judith E. Michelman, Esq., Supreme Judicial Court, Commonwealth of Massachusetts, Boston
    Judith H. Mizner, Esq., Federal Public Defender Office, Boston
    Alex G. Philipson, Esq., Superior Court, Commonwealth of Massachusetts, Boston
    A. W. Phinney, III, Esq., Supreme Judicial Court, Commonwealth of Massachusetts, Boston
    Hon. Peter Sacks, Appeals Court, Commonwealth of Massachusetts, Boston
    Joseph F. Stanton, Esq., Appeals Court, Commonwealth of Massachusetts, Boston
    Hon. Ariane D. Vuono, Appeals Court, Commonwealth of Massachusetts, Boston
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