Articles Posted in Appeals

In Giant of Maryland LLC v. Karen Webb, No. 413, Sept. Term 2019, was asked to decide whether Giant could be liable for an injury to a customer caused by a Pepsi delivery driver while stocking Pepsi products on the shelves. The Pepsi driver was not a Giant employee so the issue was whether Giant could still be liable for his negligent actions based on the level of control they had over him inside the store.

The COSA held that Giant did not have enough control to be liable for the actions of the Pepsi driver. Giant’s “general control” over the work of its product delivery drivers at the store was not enough. In order to be liable, Giant would need to have maintained control over the “operative details and methods” of the independent contractor’s work, including the “very thing from which the injury arose.”

Summary of Giant of Maryland v. Webb

Just as protests over the death of George Floyd under the knee of a Minneapolis police officer were erupting around the country, Maryland’s Court of Appeals issued a very timely decision regarding a racially charged police shooting. In Blair v. David Austin, Maryland’s high court reinstated a $200,000 verdict against a Baltimore City Police officer who shot an unarmed black man during a 2015 traffic stop. Specifically, the court held that the Court of Special Appeals erred when it overruled a jury’s decision based on the court’s own independent evaluation of the video evidence. The court explained that whether a video shows excessive police force is a question for the jury, not the court.

Fact Summary

This case arose from an all too familiar event.  My gosh, we are all sick of it.  In February 2015, Baltimore City Police officer attempted to pull over a man (with the last name Blair) for running a red light. Mr. Blair did not immediately pull over and ran another red light before eventually stopping on Freemont Ave. A nearby security camera recorded the stop. The video shows Mr. Blair gets out of his car and move toward Office Austin.

Yesterday the Court of Special Appeals of Maryland released this opinion reversing the Circuit Court for Baltimore County’s entry of summary judgment against one of our clients. The case involves the application of Insurance Article §19-511 in settling an underinsured motorist claim.

Ron Miller offers some preliminary analysis here. I will not steal Ron’s thunder by getting into the specifics myself. I will say that this opinion doesn’t mean that the case is over, there’s still a long way to go. There may be a petition for a writ of certiorari asking the Court of Appeals of Maryland to hear the case, and even if there is no petition or a petition is denied, there are issues to be addressed on remand by the trial court.

But for the moment at least, this is a huge win for our badly injured client. Rod Gaston did a great job setting up the issue in the trial court, and I handled the case on appeal. Our law firm is best known for our trial practice, but we also take a lot of pride in the results we get for our clients on appeal. It matters to us that we are on the front lines of developing the body of law that applies to Maryland personal injury cases because that helps not just our clients, but injury victims all over the state.

One thing that I get asked a lot by our injury clients and by lawyers who don’t regularly handle appeals is “How long will it take before an opinion is issued?” Any appellate lawyers who are reading this know that the only answer to that question is “I don’t know.”

Sometimes opinions are issued quickly, sometimes not. In Maryland’s state appellate courts, the fastest I have gotten an opinion was about 90 days after oral argument. The longest it has taken was nearly 14 months after oral argument. As far as I know, there aren’t any Maryland rules or statutes governing how quickly our appellate courts must resolve cases.

There are two things that have me thinking about this.The first is that I argued an appeal in the Court of Special Appeals on March 9, and I am eagerly awaiting the opinion. Every morning when I come into the office, I check the Maryland Judiciary website to see if the opinion has been released. Not having the opinion by now doesn’t really surprise me, since the Court of Special Appeals is a very busy court. In 2010 (the most recent year statistics are available) <ahref=”http://www.courts.state.md.us/publications/annualreport/reports/2010/annualreport.pdf”> it received 1,980 new case filings and resolved 2,140 cases. Considering that the court had 13 judges, including the Chief Judge, that’s a staggering amount of work- 164 cases per judge! I think part of the reason our intermediate appellate court is so busy is that there is a right to an appeal in just about every criminal case, and most people who are convicted tend to exercise that right regardless of the likelihood of success.

No one wants to be on the receiving end of an opinion that says:

“The events recounted in this opinion show that [lawyer] is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how [lawyer] has treated Lee, Washington, and Moore. [Lawyer] has not asked for a hearing on the disciplinary order to show cause, and we now conclude that he has comported himself unprofessionally. We reprimand [lawyer] for this unprofessional behavior and fine him $5,000.00, payable to the Clerk within 14 days. [Lawyer] must send Lee, Washington and Moore copies of this opinion so that they may consider whether to file malpractice suits against him.”

What did the lawyers do?  They did not file (1) a timely appeal, (2) a timely brief, or (3) filed a timely docketing statement.  But that is not all.  The lawyers refused to call back the court clerk.  They failed to respond to multiple show cause orders.  This is all just at the appellate level.

The Hon. Michele Hotten was sworn in yesterday as a judge on the Court of Special Appeals of Maryland. According to news accounts, this makes her the first black female appellate judge in Maryland. Officially, anyway. I know for a fact that women of color have sat on appellate panels in Maryland by special assignment, because I have argued in front of them.

I wonder how long these kinds of firsts will continue to be relevant. I have appeared before Judge Hotten many times during her time as a circuit court judge, and I can’t say that I have ever really noticed her ethnicity. Maybe to the general public, this is significant, but for me it’s not an issue. There are lots of black judges in Maryland. Unsurprisingly, they tend to be a lot like the white ones. Some are great, others not so much.

I guess every time a “first” like this is crossed off the list, we as a society take one more step toward race becoming irrelevant. That is probably a good thing.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Here is an article about a recent opinion of the Georgia Supreme Court (that state’s equivalent to the Court of Appeals of Maryland) that uphold “tort reform” laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of “tort reform” laws.

The court upheld a Draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove “gross negligence” by “clear and convincing” evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

Many young lawyers are lucky enough to secure a position as a judicial law clerk between law school and beginning to practice. Appellate clerkships are generally considered the most desirable. The main reason that young lawyers want these positions is because they gain valuable experience by working with a sitting judge every day, learning the best ways to persuade a court. Perhaps even more importantly, they also learn what not to do by observing the mistakes made by the lawyers before the court.

Related Information

As promised, here is the second part of my thoughts on preparing and presenting an appellate argument:

SHOW SOME COJONES. You are never arguing to one judge on appeal. Let’s say it immediately becomes apparent that a member of the panel hates your argument. They come right after you with hard questions. Don’t back down. You are an advocate. You aren’t getting paid for your ability to show up and agree with the court. Your job is to forcefully and passionately advocate for the result your client needs, in a respectful, logical way. Plus, you do not always know what is going on. Maybe the judge grilling you is the only one on the panel who thinks you are wrong. If they back you down, you may well hurt your case with the silent majority of judges who are watching. Maybe your questioner agrees with you, but the questions are designed to show unsure members of the panel why your argument stands up under duress. You are there to make an argument. Make it. BE PREPARED TO ADDRESS ADVERSE LAW. Learning and applying the cases that support your argument is easy- especially if you wrote the brief. It is more difficult and equally important (perhaps more) to be able to distinguish the cases your opponent relies on and explain to the court why they should not control the result in your case. There are a few ways to do this. Are the facts substantially different? Are there policy reasons they should not apply? Do they rely upon different substantive law, or was the procedural posture radically different? What I do is I sit down with a yellow pad. I read and highlight the opinion without taking notes.

Then I write a detailed summary of the case and its holding. In the margin I make notes on all the possible ways to distinguish the case. Generally, you will only be concerned with ten or so cases, unless you are arguing something truly complicated. After summarizing all the cases, I prepare an outline with only my bullet points on how to distinguish each. Now I have an easy cheat sheet that goes in the folder I take to the podium. Even if I draw a blank mentally, a quick glance down has me right back on track.