Articles Posted in Appeals

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’m not going to 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 of the things 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 in to 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.

Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.

This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.

The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

Related Information

  • Link to a portrait of Elena Kagan

I often wonder what (or if) other lawyers are thinking. Here is an opinion from the Court of Appeals of Maryland reviewing the rules aplicable to holding a lawyer in direct criminal contempt of court.

This arises out of a criminal case for driving without a license. We don’t handle criminal cases at Miller & Zois, but the lesson to be learned here doesn’t have much to do with the facts of the underlying case. It is enough to observe that the defense attorney got into a disagreement wit the the trial judge about a procedural aspect of the case’s disposition. He protected his record about the disagreement, and was overruled. Then, the defense lawyer just walked out before the judge had even finished ruling. The court issued an order holding the lawyer in contempt.

The lawyer appealed to the Circuit Court, which remanded the case back to the District Court because the trial judge’s initial order of contempt did not comply with the fairly complicated and little-known procedural rules governing the imposition of sanctions for direct criminal contempt. The District Court judge then entered a revised order clarifying the original one, and still holding the lawyer in contempt. The lawyer appealed again to the Circuit Court, which this time affirmed the contempt order. The lawyer then appealed again, with the case ultimatley winding up in the Court of Appeals.

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.

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

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.