Articles Posted in Appeals

One of the many hats I wear at Miller & Zois is that of our in-office appellate specialist. What that really means is that I handle all of our law firm’s personal injury cases that wind up being appealed, and that I accept referrals (from other lawyers only) to handle civil appeals of all types.

One thing I see over and over is briefs from the other side that make the ill-advised choice to attack the trial judge or trial counsel. And I don’t mean with reasoned legal arguments, I mean things that are over-the-top, like allegations that the judge was biased, or ad hominem attacks on the opposing party or their counsel. There are a lot of things wrong with doing that, but the two main ones are 1) it’s unprofessional and 2) making yourself look like a jackass isn’t very persuasive.

If you handle appeals on a regular basis, you should take a look at “Professionalism On Appeal: The Good, The Bad and the Ugly”, an article by Howard J. Bashman, a Philadelphia-area appellate specialist. I think he sums it up nicely by saying: “Indeed, expressing animosity toward opposing counsel on appeal, or toward the trial judge, usually proves to be counterproductive rather than an effective strategy for victory.”

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=””> 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.

One thing I always try to do when I am writing an appellate brief to use the Table of Contents as an outline of the argument. If you can read the TOC and you don’t know my basic argument by the time you’re finished, I’ve failed. I use each section heading as a summary of the argument and each sub-heading as a summary of the main points in support. My thinking has always been that appellate courts are busy, and that making your argument concise, accessible and easy to understand is a great way to make it easy for the court to rule in your favor. It’s just good advocacy.

Jay O’Keefe’s Virginia appellate blog De Novo has a summary of a talk at The Greenbrier Resort given by Justice LeRoy F. Millette, Jr. of the Supreme Court of Virginia. Maryland and New York are the only states I know of where the highest court is called the Court of Appeals, and where its members are judges, not justices. Maybe there are others, I’ve never really checked.

But anyway, Justice Millette says that a brief should be organized in “clear, outline format.” Jay agrees, adding that “it is helpful to include descriptive subject headings that reflect the outline organization of the brief.” Not only is this approach helpful from an advocacy standpoint, but it also allows nearly instant reference to any point made in the brief or oral argument.

I don’t write much in this space about Supreme Court, since this blog is usually dedicated to topics of interest in personal injury litigation. Even though I have an appellate practice, I don’t expect to find myself preparing an argument in the SCOTUS anytime soon. I imagine I will end my legal career in the 99.995% of all attorneys who never make it to the Supreme Court.

Even so, I usually pay at least cursory attention to the goings-on down on First Street, because I find it interesting as an appellate lawyer and because I try to be a well-informed citizen. So I am aware of Clarence Thomas’ well-established reputation as the Court’s silent man, and that people draw varying inferences from his silence. Some think that it is a sign of closed-mindedness, an unwillingness to be persuaded, or an ideological entrenchedness. Others see it as a sign of indifference. Still others see it as a mask for intellectual weakness (an inference I find ridiculous). Even though I think it is safe to say that Justice Thomas and I are at opposite ends of the ideological spectrum, I find him to be one of the most interesting justices.

Here is a great article from The Huffington Post about one of the few times Justice Thomas has engaged with counsel at argument. In 2002, he jumped in on the side of the State of Virginia in a case testing the constitutionality of a state law making cross-burning a criminal offense. As the Court’s only African-American and a man who grew up in segregated Savannah, Georgia, he made the point that cross-burning isn’t expression protected by the 1st Amendment, but instead a hateful act of terror and intimidation.

In my 13 years as a lawyer, I have tried hundreds of cases ranging from District Court small claims to million-dollar jury verdicts, and including appeals to Maryland’s highest court.

I am well acquainted with the idea that suprise is a trial lawyer’s constant companion. The only guarantee is that you never know what will happen. Even after all that experience, if the Chief Justice of the Supreme Court of the United States walked out unannounced to hear my argument, I think I might forget my toilet training.

So when that happened to this student in a law school mock argument, I am impressed that she was able to say anything at all. This will be a nice story for this student to tell in interviews to illustrate her ability to advocate effectively under pressure.

Is an opinion that says this:

“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.”

The really crazy thing is that this is another opinion from the United States Court of Appeals for the Seventh Circuit, the same court I wrote about here. This one was written by Chief Judge Frank Easterbrook, for a panel that also included Judge Posner.

A benchslap is when a judicial opinion makes it clear, in no uncertain terms, that a party has done something that was not appreciated.

Via How Appealing, here is a great example of a benchslap that also makes an imortant point about appellate practice. This comes courtesy of the Hon. Richard A. Posner of the United States Court of Appeals for the Seventh Circuit:

“We’ll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants’ briefs present the evidence they’d like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court.”

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.