Articles Posted in Appeals

The last few months, I have been appearing in appellate courts more often than trial courts. For a lot of trial lawyers, this would be a bad thing. I actually prefer it. Don’t get me wrong, I enjoy trial work- I love the competition and the chance to use my creativity. But I love handling appeals. If I had the choice, I would choose an appellate argument over a jury trial any day of the week.

Here are a few thoughts I have about the right way to handle oral argument before appellate courts. They are not in any particular order. Actually, one of them is, and it’s first.

DO NOT READ THE ARGUMENT. Seriously. If you think this is a good idea, you are not competent to handle appeals. In fact, not only should you not handle appeals, but if I have to sit there while you read it, you should be killed. Every appeals judge in the land will instantly hate your argument if you are reading. Since they sit on an elevated bench, this means that they can only see the top of your head. It means you are not making eye contact. It demeans the process because it inhibits free flowing interaction with the court.

I have been away from the blog for a few days because I have been preparing for an oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday, I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally, this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

Friday, the Court of Appeals of Maryland issued its opinion in an attorney discipline case. The Court reaffirmed what we all know, which is that commingling personal and client assets in an attorney trust account are likely to get you disbarred. So for my lawyer readers, don’t do that.

The facts are interesting though. It seems that the lawyer was accused of sexually molesting one of his young daughter’s playmates. The opinion doesn’t say so, but it looks like the lawyer was not convicted criminally. So he does something that only a truly innocent or really stupid person would do- he sues the purported victim’s parents for defaming him. In turn, they do something that a really smart person (or a person getting excellent legal advice from Andrew D.

Freeman, Esq.) would do- they counterclaimed for battery on behalf of their daughter. The Baltimore County civil jury agreed with the parents, granting judgment against the lawyer in the amount of $386,350 in compensatory damages and $75,000 in punitive damages.

Yesterday I received an order from the Court of Appeals of Maryland scheduling oral argument in two cases I am handling. Really, it is one argument, but relates to two cases that have been consolidated on appeal.

The first case is a case my colleague Rod Gaston had for trial in the Circuit Court for Anne Arundel County. The defendants named a neurosurgeon as an expert witness. Rod obtained an order compelling him to produce certain financial records in an effort to find out how much he is paid for testifying in general, and for the defense attorneys, defense law firms and insurance companies involved in the case specifically. The doctor has appealed that order.

The second case is a truck accident case I am handling in the Circuit Court for Montgomery County. That case has been stayed in the trial court pending the outcome of the appeal. There, the trial court entered a similar order, only with a strong confidentiality provision protecting the privacy of the records to be produced. The doctor has appealed that order as well.

Today’s Baltimore Sun reports that Judge Davis has been confirmed to a seat on the U.S. Court of Appeals for the 4th Circuit. Hopefully, we will see the Senate act to end the shameful delays in judicial appointments.

He’s a good judge. There is no good reason he wasn’t immediately confirmed. Hopefully, the Senate will move quickly to confirm the remaining three nominees to that court, fully staffing it for the first time in a very long time.

Last week, I argued an appeal in a truck accident case. I was in the Court of Special Appeals of Maryland, which is our state’s intermediate appellate court. My case was fourth in line on the day’s docket. That meant I got to (was forced to) sit through the argument on the cases ahead of mine.

The other arguments ran the gamut from abominable to excellent and featured a range of attorneys from young lawyers to experienced appellate advocates.

One thing I saw some of these other lawyers do was to address the questioning judges by name. For example, “Great question, Judge Hollander.” Actually, my example violates two rules of appellate argument. Never tell a judge they asked a great question. Presumably, they also thought it was a good question, or they would have remained silent.