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Articles 1 - 30 of 64
Full-Text Articles in Civil Procedure
How To Use Financial Statements—A Handbook For Lawyers, James R. Flaker
How To Use Financial Statements—A Handbook For Lawyers, James R. Flaker
Maine Law Review
It is always dangerous to write a handbook for lawyers on another discipline whether that discipline be medicine, engineering, actuarial science, or accounting. The demands on the lawyer for knowledge in any of these other disciplines differ both in breadth and depth in each of the multitudinous matters in which he finds himself involved. Moreover, among individual practicing lawyers are found widely varying degrees of sophistication in these other disciplines. Bearing in mind this inherent limitation of any handbook for lawyers, it is apparent that Irving Kellogg has done a good job with his handbook on financial statements.
Maine Real Estate Law, Donald W. Philbrick
Maine Real Estate Law, Donald W. Philbrick
Maine Law Review
The author, a former lecturer at the University of Maine School of Law, in the book's foreword, disclaims that his book is written for lawyers. In this disclaimer, he is far too modest. Most lawyers who deal with matters concerning real estate law will benefit by a refresher course. This volume provides an excellent and very readable combination of English and Colonial historical background and current Maine law.
Maine Civil Practice (2d Ed.), Charles A. Wright
Maine Civil Practice (2d Ed.), Charles A. Wright
Maine Law Review
Shortly after the first edition of this book appeared I referred to it as "an excellent treatise," and I have kept a copy close at hand in my office so that I may benefit from its useful insights into procedural problems when I am engaged in my own writing about procedure in the federal system. I have now had an opportunity to read the second edition from cover to cover and have no doubt that it is even better, and will be even more useful to judges and lawyers in Maine and to persons interested in procedure outside Maine, than …
Security Ins. Group V. Emery: A Step Backward For Interest Analysis In Maine, William F. Julavits
Security Ins. Group V. Emery: A Step Backward For Interest Analysis In Maine, William F. Julavits
Maine Law Review
Security Insurance Group, the Connecticut insurer, sought declaratory relief' alleging that failure by its insured to furnish timely notice of the accident as prescribed by the policy precluded its liability. The insured contended that Maine's notice statute was applicable, requiring only that the insurer receive notice of the action before judgment, and that this requirement was satisfied. Alternatively, the insured contended that even if the Connecticut notice term were held applicable, since there was no contact between the two cars, it was his belief that he was not at fault and thus had no reason to notify his carrier of …
Preliminary Questions Of Fact: Respective Roles Of Judge And Jury In Maine Courts, Maine Law Review
Preliminary Questions Of Fact: Respective Roles Of Judge And Jury In Maine Courts, Maine Law Review
Maine Law Review
Virtually indisputable in the law is the notion that the trial judge determines questions of admissibility of evidence. However, when admissibility depends upon the evaluation of a preliminary question of fact, both courts and commentators disagree as to whether the judge should continue to occupy the role of sole decision-maker. The intertwining of fact, the preliminary condition, and law, the admissibility decision, raises some havoc with accepted views of the judge as arbiter of the law and the jury as fact finder. If the judge determines both questions, he is resolving not only legal, but also factual issues traditionally within …
Cross-Appeals In Maine: Pitfalls For The Winning Litigant, Maine Law Review
Cross-Appeals In Maine: Pitfalls For The Winning Litigant, Maine Law Review
Maine Law Review
The question of when a winning party must cross-appeal to challenge non-determinative findings in defense of a favorable judgment was answered for the first time in Maine in the recent case of Littlefield v. Littlefield. Noting a split of authority between the federal and state courts, the Maine Supreme Judicial Court unpredictably determined that an appellee must file a cross-appeal if he seeks to attack adverse findings which, if decided differently, would adequately support the judgment. In Littlefield, the court's objective was to provide notice to opposing parties. Recognizing that this end is a legitimate concern, the question here is …
Vagueness And The Vermont Long-Arm Statute, Maine Law Review
Vagueness And The Vermont Long-Arm Statute, Maine Law Review
Maine Law Review
The authority of state courts to assert jurisdiction over the person of nonresidents has expanded markedly since the days of Pennoyer v. Neff. Different theories for asserting jurisdiction over individuals, as opposed to corporations, have been discarded. For jurisdictional purposes, the common law classifications of in personam, in rem and quasi in rem have been abandoned. "Minimum contacts" has become the all-embracing rationale for reviewing any assertion of jurisdiction over a nonresident defendant by a state court. But if "minimum contacts" has replaced these former concepts and served to simplify and unify the requirements of due process, it has also …
Postjudgment Procedures For Collection Of Small Debts: The Maine Solution, Maine Law Review
Postjudgment Procedures For Collection Of Small Debts: The Maine Solution, Maine Law Review
Maine Law Review
Debtors' rights and the due process of debt collection have received increasing attention recently in legislative as well as judicial spheres. There have been many efforts to rectify basic contractual inequities, to abolish summary prejudgment remedies and to limit extra-judicial collection abuses. However, comparatively little scrutiny has been focused on postjudgment or post-hearing remedies in the later stages of the collection process. Until recently, Maine's legal remedies for postjudgment debt collection were notorious for their harshness. Jail, the principal sanction, was freely used as a creditors' club to make debtors settle claims. Although inability to pay was not in itself …
State Action And Waiver Implications Of Self-Help Repossession, Maine Law Review
State Action And Waiver Implications Of Self-Help Repossession, Maine Law Review
Maine Law Review
In Adams v. Egley, a California federal district court held the repossession sections of the Uniform Commercial Code to be unconstitutional as a denial of due process. The Adams court relied on Sniadach v. Family Finance Co., in which the Supreme Court invalidated the Wisconsin prejudgment wage garnishment law as violative of due process because property was garnished under the statute without hearing or notice to the wage-earning debtor. When Adams was decided, the scope of Sniadach was the subject of extensive judicial dispute. Since then, the Supreme Court's decision in Fuentes v. Shevin has clarified the meaning of Sniadach …
Standards For Imposition Of Discovery Sanctions, Maine Law Review
Standards For Imposition Of Discovery Sanctions, Maine Law Review
Maine Law Review
The adoption of the Federal Rules of Civil Procedure in 1938 marked a major change in the theory of the trial system in the federal courts. The new procedures of the Rules were designed to eliminate disposition of cases based on technical errors and encourage resolution on the merits of each controversy. The pleading rules were greatly simplified and full discovery provisions were incorporated to inform the parties regarding the basis of each adversary's claim or defense and to provide greater access to evidence bearing on the dispute. The optimal use of pre-trial discovery under the Rules, however, depends upon …
Attorneys And Subornation Of Perjury, Maine Law Review
Attorneys And Subornation Of Perjury, Maine Law Review
Maine Law Review
Federal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not …
Decriminalization: A New Consideration For The Fourth Amendment Balance, Maine Law Review
Decriminalization: A New Consideration For The Fourth Amendment Balance, Maine Law Review
Maine Law Review
During the past several years Maine has reevaluated the wisdom of applying criminal sanctions to certain forms of conduct. In addition to the total abrogation of a number of crimes, the Maine Legislature has reduced the statutory classification of some offenses to civil violations. Moreover, certain newly established offenses have been limited to the status of civil violations. The designation of offenses as "civil" raises the question of what constitutional safeguards should be applied to the manner in which such violations are investigated and to the process under which civil sanctions are administered. This Comment will summarize the Supreme Court's …
Small Claims Mediation In Maine: An Empirical Assessment, Craig A. Mcewen, Richard J. Maiman
Small Claims Mediation In Maine: An Empirical Assessment, Craig A. Mcewen, Richard J. Maiman
Maine Law Review
In recent years considerable attention has been paid in the United States to the development of informal "alternatives to court" as part of a world-wide access to justice movement. Of these alternatives to courts, mediation contrasts most sharply with adjudication and, in theory, promises much by way of decreasing the alienation of citizens when it is made an adjunct to the formal judicial process. The contrast and promise stem largely from the participatory and consensual character of the mediation process. A third party to the dispute—the mediator—encourages the parties to find a mutually agreeable settlement by helping them to sharpen …
Pretrial In Maine Under New Rule 16: Settlement, Sanctions, And Sayonara, Robert J. Plourde
Pretrial In Maine Under New Rule 16: Settlement, Sanctions, And Sayonara, Robert J. Plourde
Maine Law Review
On September 1, 1980, a new pretrial procedure rule became effective in Maine. The rule was heralded as "the most significant modification of the Maine Rules of Civil Procedure in recent years." The rule was intended to remedy major defects in existing pretrial procedure and to benefit judges and attorneys through more explicit directions for pretrial procedure. Ultimately, the goal of this reform is to achieve a "just result of litigation.” This Comment begins with an overview and evaluation of quantitative studies of the pretrial conference in various judicial systems. The Comment then analyzes the new Maine rule and its …
Civil Juries In Maine: Are The Benefits Worth The Costs?, Donald Alexander
Civil Juries In Maine: Are The Benefits Worth The Costs?, Donald Alexander
Maine Law Review
Throughout this century, legal scholars have vigorously criticized civil juries with little apparent effect. Despite the civil jury's long history of successful resistance to change, new considerations make it imperative that we conduct a fundamental review of the functioning of the civil jury as an instrument of justice for the twenty-first century. That review has begun in Maine. Under the direction of the Maine Supreme Judicial Court, a comprehensive jury management study has just been completed. Proposals for changes in jury management and efficiency are now being developed. As part of this process, we can simply perpetuate the past or …
An Analysis Of Federal Drug-Related Civil Forfeiture, Susan J. Parcels
An Analysis Of Federal Drug-Related Civil Forfeiture, Susan J. Parcels
Maine Law Review
Drug Enforcement Administration Special Agent Arthur J. Goldenbaum participated in a raid at the home of Mrs. Edna Salas, arrested her husband, and charged him with possession of heroin. Pursuant to a warrant, Goldenbaum searched the Salas's 1975 Mercedes and found four marijuana cigarette butts in the ashtray. The government seized the Mercedes, sold it, and collected the proceeds. This is an example of forfeiture-the loss of goods to the government as a result of the commission of a crime-under the federal drug laws. This Comment examines federal civil forfeiture statutes applicable to drug trafficking. The widespread judicial reluctance to …
A Rule 54(B) Dilemma: Divorces Lacking "Finality" Due To Undismissed Counterclaims, Ellen Kandoian
A Rule 54(B) Dilemma: Divorces Lacking "Finality" Due To Undismissed Counterclaims, Ellen Kandoian
Maine Law Review
Recent decisions of the Maine Law Court bring into sharp focus certain difficulties inherent in applying rules of civil procedure developed in the context of federal practice to a state law setting. In such instances, the rules must operate on certain types of litigation peculiar to state law, notably the entire field of domestic relations. In a field bearing the unique features and demands of domestic relations, it is not surprising that federally patterned rules raised problems not anticipated by their drafters. In the 1981 case of Parent v. Parent, the Maine Law Court, in customary observance of Rule 54(b) …
The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw
The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw
Maine Law Review
In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …
Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont
Hospital Accountability In Health Care Delivery, C. Elisabeth Belmont
Maine Law Review
In recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a "doctor's workshop," providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today's hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized …
In Defense Of Civil Juries, Peter W. Culley
In Defense Of Civil Juries, Peter W. Culley
Maine Law Review
Criticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that "[t]he civil jury system has outlived its usefulness." In support of his basic premise that the civil jury system is merely an historical …
The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon
The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon
Maine Law Review
On four separate occasions between December 1981 and February 1982, the Maine Supreme Judicial Court called into question the continued vitality of the common law doctrine of punitive damages. The substantive propriety of punitive damages was not challenged by any of the defendants in those four cases. As a result, the Law Court assumed for the purposes of each opinion that punitive damages could be awarded by a court "in some instances without explicit statutory authorization." Nevertheless, in a footnote to Braley v. Berkshire Mutual Insurance Co., the court challenged this assumption. Noting that the doctrine of punitive damages initially …
Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith
Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith
Maine Law Review
Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …
Who Should Recover For Loss Of Consortium?, Martin S. Amick
Who Should Recover For Loss Of Consortium?, Martin S. Amick
Maine Law Review
For more than three centuries courts have recognized a husband's right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of "spousal" consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably …
Stacked Recovery Under Maine's Uninsured Motorists Statute: Connolly V. Royal Globe Insurance Company, Edward R. Benjamin Jr.
Stacked Recovery Under Maine's Uninsured Motorists Statute: Connolly V. Royal Globe Insurance Company, Edward R. Benjamin Jr.
Maine Law Review
Foremost among the problems of automobile travel facing state legislatures may be that of ensuring adequate compensation for injuries and deaths suffered in traffic accidents. Frequently an injured party wins an award of damages against a negligent motorist, only to find the negligent party unable to meet the financial burden which the judgment imposes. The injured party, though innocent of any wrongdoing, may receive little or no compensation for injuries suffered. State legislatures have attempted to prevent such situations by enacting mandatory liability insurance laws, creating victim compensation funds, or requiring uninsured motorist coverage. Inherent weaknesses exist, however, in both …
Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk
Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk
Maine Law Review
In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …
The Federal Civil Rules After Half A Century, Maurice Rosenberg
The Federal Civil Rules After Half A Century, Maurice Rosenberg
Maine Law Review
The name Gignoux is not exactly a household word among the lay citizens of this country and would not qualify as one even if we count all the varied pronunciations people choose to accord it. Indeed, there are probably quite a few members of the bar who do not recognize the name or know anything about its bearer's works. That is their loss. Edward T. Gignoux has been doing so much for the betterment of justice in this country in so many ways and for so many years that he has clearly earned a place of high honor in the …
State Courts' Interest In Federal Rulemaking: A Proposal For Recognition, Vincent L. Mckusick
State Courts' Interest In Federal Rulemaking: A Proposal For Recognition, Vincent L. Mckusick
Maine Law Review
As we approach the half-century anniversary of the adoption of the Federal Rules of Civil Procedure, we should take stock of the extent that they have served as a model for state rulemaking. At least thirty states, plus the District of Columbia and Puerto Rico, now have civil rules substantially identical to the federal rules. Of the remaining states, only three have statutes or rules of civil procedure that bear little or no resemblance to the federal model Even those states such as Illinois, Michigan, New York, and Pennsylvania that have not modeled their civil procedure generally on the federal …
Ouellette V. Sturm, Ruger & Co. And Jones V. North American Aerodynamics: The Effectiveness Of Maine's Borrowing Statute In Cases Involving Corporations, J. Gordon Scannell Jr.
Ouellette V. Sturm, Ruger & Co. And Jones V. North American Aerodynamics: The Effectiveness Of Maine's Borrowing Statute In Cases Involving Corporations, J. Gordon Scannell Jr.
Maine Law Review
Maine's borrowing statute provides that a person may not bring an action in Maine that has been barred by the laws of another jurisdiction wherein all parties resided. In effect, the statute permits "borrowing" the limitation period of the other jurisdiction. In Ouellette v. Sturm, Ruger & Co., the Maine Supreme Judicial Court, sitting as the Law Court, interpreted the residency requirement of the borrowing statute as it relates to a corporation and held that for purposes of the statute a corporation is a resident of only the state in which it is incorporated. Because of the peculiar wording of …
United States Ex Rel. Arrow Electronics, Inc. V. G.H. Coffey Co.: Judicial Interpretation Of Timely Notice Under Federal Rule Of Civil Procedure 15(C), Brett Dwight Baber
United States Ex Rel. Arrow Electronics, Inc. V. G.H. Coffey Co.: Judicial Interpretation Of Timely Notice Under Federal Rule Of Civil Procedure 15(C), Brett Dwight Baber
Maine Law Review
In 1966, the United States Supreme Court amended Federal Rule of Civil Procedure 15(c) to eliminate lower court confusion regarding "relation back" of pleading amendments which sought to change the party against whom the claim was asserted. The Rule, as presently formulated, permits a plaintiff to add or change a party defendant after the statute of limitations has run provided that . . . . While the current Rule is more precise than the pre-1966 Rule in defining when "relation back" is permissible, it has not eliminated the sharp divergence among judicial opinion regarding the proper application of the Rule. …
Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge
Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge
Maine Law Review
Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) …