Maine State Bar Association Volume 36 | Number 1 | 2021 Steven D. Silin, Esq. Daniel G. Kagan, Esq. Craig A. Bramley, Esq. Jodi L. Nofsinger, Esq. Michael T. Bigos, Esq. Robert H. Furbish, Esq. Susan A. Faunce, Esq. James E. O’Connell, Esq. Alicia F. Curtis, Esq. Miriam A. Johnson, Esq. Timothy M. Kenlan, Esq. Travis M. Brennan, Esq. Dov Sacks, Esq. Elizabeth A. Kayatta, Esq. Christopher C. Boots, Esq. Adam J. Arguelles, Esq. Experience matt ers. In a serious personal injury case, experience can make the difference between winning and losing. No one can match our depth of talent, expertise, and fi nancial strength to deliver the results your client deserves. That is why we are recognized as the best plaintiffs’ fi rm in Maine. So you can refer your case with confi dence. Together, we’ll win. PORTLAND LEWISTON BANGOR 800.244.3576 Experience. Resources. Results. bermansimmons.com 124 STATE STREET, AUGUSTA ME 04330 VOLUME 36 | NUMBER 1 | 2021 FOR ADVERTISING, SUBSCRIPTION, OR SUBMISSION INFORMATION, CALL 207.622.7523 1.800.475.7523 FAX: 207.623.0083 EDITOR Kathryn A. Holub | [email protected] Volume 36 | Number 1 | 2021 DESIGN Anneli Skaar | [email protected] ADVERTISING COORDINATOR Lisa A. Pare | [email protected] EDITORIAL ADVISORY COMMITTEE Daniel Murphy (Chair) Meegan Burbank, Matthew Caton, Jonathan Dunitz, Miriam Johnson, Jonathan Mermin COMMENTARY MSBA BOARD OF GOVERNORS President’s Page | Kelly W. McDonald 4 Kelly W. McDonald (President) Thaddeus V. Day (Immediate Past President) From the Executive Director | Angela P. Armstrong 6 Frank H. Bishop Jr. (President Elect) Stacy O. Stitham (Vice President) James B. Haddow (Treasurer) FEATURES Jason D. Anton (Public Service Sector) Meegan J. Burbank (District 4) Anticipating COVID-19 Litigation Through Teresa M. Cloutier (District 6) the Causation Lens | Tara Walker and Josh Rosen 9 Jill S. Cramer (District 1) Cheryl J. Cutliffe (District 3) Sensible Multitasking: The Smart Way to Get Jonathan M. Dunitz (District 3) Susan A. Faunce (District 5) More Done in Less Time | Amy Wood, Psy.D. 15 Haley B. Hall (District 8) Tonya H. Johnson (District 7) The Protection from Abuse Statute Should Be Jennifer F. Kreckel (District 2) Protected from Abuse | Elliott L. Epstein 17 Zachary F. McNally (District 10) Stacey D. Neumann (Women’s Law Section) Rachel Deschuytner Okun (District 3) Law Court: Standing Fells Tree Removal | Forrest C. Peterson (New Lawyers Section) Keith Richard 27 William E. Saufley (In-House Counsel) John W. Tebbets (District 11) Ezra A.R. Willey (District 9) DEPARTMENTS STAFF DIRECTORS JEST IS FOR ALL | Arnie Glick 54 Executive: Angela P. Armstrong Deputy Executive: Heather L.S. Seavey BEYOND THE LAW | Daniel J. Murphy 36 Administration & Finance: Lisa A. Pare ACCESS TO JUSTICE | Michelle Draeger 40 CLE: Linda M. Morin-Pasco LRS: Rachel MacArthur ATTORNEY WELLNESS | William C. Nugent 44 Communications: Kathryn A. Holub IN THE ALTERNATIVE | Jonathan Mermin 46 Maine Bar Journal (ISSN 0885-9973) is published four times yearly RES IPSA LOQUITUR | Nancy A. Wanderer 49 by the Maine State Bar Association, 124 State Street, Augusta ME 04330. Subscription price is $18 per year to MSBA members as SUPREME QUOTES | Evan J. Roth 53 part of MSBA dues, $60 per year to nonmembers. Send checks and/or subscription address changes to: Subscriptions, MSBA, 124 Calendar 58 State Street, Augusta ME 04330. Maine Bar Journal is indexed by Advertiser’s Index 58 both the Index to Legal Periodicals and the Current Law Index/ Legal Resources Index-Selected. Maine Bar Journal articles are also Classified Advertising 58 available to MSBA members at www.mainebar.org and to subscribers of the Casemaker and Westlaw online legal research services. Views and opinions expressed in articles are the authors’ own. Authors are Issue editors: Meegan Burbank, Jon Mermin, and Matthew Caton. solely responsible for the accuracy of all citations and quotations. No portion of the Maine Bar Journal may be reproduced without the ON THE COVER: iStock express written consent of the editor. Postmaster: send Form 3579 for Citation note: According to Uniform Maine Citations (2010 ed.), [a]rticles in the address corrections. Periodicals postage paid at Augusta ME 04330. All rights reserved. Copyright © 2021 Maine State Bar Association Maine Bar Journal should be cited as follows: Paul McDonald & Daniel J. Murphy, www.mainebar.org Recovery of Lost Profits Damages: All is not Lost, 24 Me. Bar J. 152 (2009).” DISCLAIMER: Views and opinions expressed in articles are the authors' own. PRESIDENT'S PAGE | KELLY W. MCDONALD KELLY W. MCDONALD is a partner at Portland-based Murray Plumb & Murray. McDonald focuses his law practice on litigation involving commercial, bankruptcy, boundary, and construction disputes. An Eagle Scout, he also serves as Scoutmaster of BSA Troop One in Portland. McDonald is a graduate of the University of Virginia Law School and Bates College. He may be reached at [email protected]. Building on the Past and Envisioning the Future: A Look Ahead There is no question that 2020 was a challenging year for all of The MSBA Board conducted our biennial strategic planning this us. Some of us lost loved ones. Many of us have struggled with fall and identified three key goals for the next two years. depression or anxiety. Most of us have been forced to change how we work. It is important to acknowledge those challenges and First, we will enact a rural practice initiative to address the aging struggles. out and general shortage of lawyers in our more rural areas. This initiative will include developing resources to help new lawyers At the same time, it’s important to celebrate the things that went start rural practices and retiring lawyers exit their practices. We well. Different groups within our profession made enormous will support the community of rural lawyers through our new efforts to keep us all going. message board system and explore options for direct aid or loan forgiveness for law school graduates who choose to practice in The Judicial Branch issued a flurry of orders in an effort to underserved areas. balance the needs of justice with public safety. Deadlines were extended and temporary rules were issued to allow as much of our Second, we will work to promote diversity, inclusivity, and profession as possible to continue operating. There are certainly equal opportunity in the Maine legal profession. That includes strong opinions within our profession about some of those educational outreach to ensure that we all understand the history decisions, but the Judicial Branch is to be commended for its and the problems we will be working together to fix. Part of that quick efforts and hard work in a very complex and unprecedented will be to publish the results of a diversity survey we conducted situation. this past fall. The members of the Maine Bar rose to the occasion by adapting More importantly, these efforts include proactive steps to increase to an entirely new way of practice. Almost all of our practices minority representation at all levels of the legal system, including have changed. Many of us are now working from home. our Association. This past fall, the MSBA created a new BIPOC Those of us who are in court regularly are constrained by (Black, Indigenous, and People of Color) Lawyers Section, which masks from seeing people’s faces and expressions. Most of us are is already making great strides. Hopefully, by the time you read probably far more familiar with Zoom than we ever wanted this, the membership has approved a literal seat at the table: a to be. new Board position to be filled by election of the BIPOC Lawyers Section members. We will actively recruit BIPOC lawyers to At the MSBA, we initiated Bar Talk, a weekly videoconference participate in the MSBA Leadership Academy and aim to partner to keep the Bar informed in a rapidly shifting world. We with Maine Law and firms across the state to recruit BIPOC transitioned from in-person to virtual CLEs. We also took lawyers to come to Maine. important steps towards acknowledging and starting to address racism and diversity issues. More on these efforts below. These efforts are not limited to addressing systemic and systematic racism. We will also continue our efforts to address the ongoing Even with those positive notes, I’m not going to miss 2020. challenges women face in the legal profession and to ensure Let’s turn to what the New Year will hopefully bring. that all lawyers, no matter their gender identification or sexual orientation, have equal opportunity to succeed. 4 MAINE BAR JOURNAL | VOLUME 36, 1/2021 Third, we will continue to enhance the relevance of this Association QUICK FACTS for its members. We are fortunate: the MSBA has the highest participation rate of all voluntary bar associations in the nation. That’s because the MSBA has historically provided strong reasons to become Why do you belong to the MSBA? and remain a member. One of the best parts about practicing in Maine is a collegial bar. In an age where I think of the value of this community as having four aspects. Being a “lawyering” often means sitting in front member of the MSBA should help make each of us smarter, happier, of computer screens, the MSBA gives me more collegial, and more efficient as lawyers. Those four themes will connections to other lawyers that I would drive the MSBA’s programming this year. not get otherwise. Smarter lawyers know the substantive and procedural law to What the best thing about being help clients. They are familiar with what is going on in the legal an attorney? community. They are confident and effective. People come to you looking for help in a complex area where they can’t help Happier lawyers enjoy what they do and strike a good balance between themselves.