Archive | February 2015

Why Government Lawyers Must Do Better: The Fourth Circuit Blasts the EEOC for “Disappointing Litigation Conduct”

By Derek Stikeleather and Melissa Loureiro

Government lawyers enjoy the tremendous goodwill that flows from the common perception that, because they represent the public rather than self-interested private parties, they are more honest and forthcoming in giving courts not just the truth but the whole truth. Although all attorneys have a duty of candor to the court and a duty to zealously represent their clients, every lawyer strives to be seen as more credible than opposing counsel. When the client in a criminal or civil case is the United States of America, the attorney has already taken the high ground because the public and the judiciary often expect greater candor from government attorneys, even when it could potentially harm their case.

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February 2015 Maryland Certiorari Grants

What will warm you up on this coldest of winter days? Certiorari grants? No, probably not. But since you’re hopefully not venturing into the cold tonight, you’ll have extra time to read through today’s grants of review by Maryland’s highest court. (And no, the grants do not include an own-motion grant of certiorari in Syed v. State, as we recently wildly speculated.) Read More…

The Importance of the New Maryland Daily Record Database of Unreported Court of Special Appeals Opinions

By Michael Wein

Last week, Chief Judge Mary Ellen Barbera delivered the State of the Judiciary address to the Maryland General Assembly, concluding, “The Judiciary is doing well and it is making strides in becoming smarter, more efficient and increasingly accessible to the public. The future presents challenges and opportunities alike, and the time is ripe for reasoned and thoughtful reforms.” (Both the written transcript and webcast links are available on the Judiciary website.) Along those lines, recent changes involving the statewide introduction of electronic filing are taking hold, and may help make Maryland’s intermediate appellate court, the Court of Special Appeals, more accessible and transparent. This corresponds with the recent launch by the Maryland Daily Record, as a benefit for its subscribers, of an online searchable catalog of the Court of Special Appeals’ unreported opinions from Jan. 1, 2014, on.

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How to Speed Up the Serial Appeal

By Steve Klepper (Twitter: @MDAppeal)

[Update: A reader, David Lease, pointed out to me the 4-3 decision in Stachowski v State, 416 Md. 276(2010), which appears to negate the possibility of bypass. Thanks to David and boo to Stachowski.]

Fans of the Serial podcast received some good news and some bad news this weekend. The good news: the Court of Special Appeals granted Adnan Syed’s application for leave to appeal. His ineffective assistance of counsel claim will be heard on the merits during the court’s June 2015 sitting. But there was bad news for those who had trouble waiting between Serial installments: final resolution is going to take a while. As Sarah Koenig explained on her blog: Read More…

Event: Recent Impact Decisions of the Maryland Appellate Courts

From the Maryland Appellate Blog’s inbox:



 Recent Impact Decisions of the Maryland Appellate Courts

Thursday, March 19, 2015

5:00 – 8:00 p.m.

Court of Appeals of Maryland

Robert C. Murphy Courts of Appeal Building

Fourth Floor 361 Rowe Boulevard Annapolis, MD 21401

 5:00 – 6:00 p.m. Social Hour Reception – Foyer to the Courtroom

(front doors to the Courthouse close at 6:00 p.m.)

Cash Bar (Beer & Wine) & Heavy Hors D’oeuvres

6:00 p.m. – 8:00 p.m. – Court of Appeals Courtroom

Speaker Presentations and Audience Questions


$10.00 for MSBA Litigation Section

$25.00 for others


HON. ALAN M. WILNER, Judge (retired), Court of Appeals of Maryland

RENÉE HUTCHINS, Professor of Law, University of Maryland Frances King Carey School of Law



 Please register on-line at

January 2015 Link Round-Up

By Chris Mincher,

We here at the Maryland Appellate Blog know this isn’t the only place on the Web practitioners in the state are talking about appellate cases and issues. In addition to other sites of like-minded commentators, many law firms maintain blogs where appellate matters make frequent appearance. To bring these voices and topics into the larger discussion, we’ve begun a monthly roundup of posts by Maryland bar members that are relevant to appellate practice in the state.

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“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture

By Steve Klepper (Twitter: @MDAppeal)

Getting argument before the Fourth Circuit is hard. Oral argument is a precondition for a published decision under its local rules. Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.

From 2007 through 2014, the Fourth Circuit issued 259 opinions in which a judge dissented in full from the majority opinion. Seventy-four (28.6 percent) of those opinions were unpublished. In turn, 21 of those majority opinions were per curiam. During that same period, the Fourth Circuit issued 46 majority opinions that drew a partial dissent. Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished. Read More…

In Maryland, interpreting cell phone records now requires expert testimony

By Brad McCullough

With apologies to Bob Dylan, you may not need a weatherman to know which way the wind blows[1], but you need an expert witness to know which way a cell phone call goes. In State v. Payne & Bond, No. 85, Sept. Term, 2013 (Md. Ct. App. Dec. 11, 2014), the Court of Appeals – in a majority opinion written by Judge Lynne Battaglia and joined by three other judges[2] – built on its earlier decisions in Ragland v. State, 385 Md. 706 (2005), and State v. Blackwell, 408 Md. 677 (2009), and held that a detective “needed to be qualified as an expert under Maryland Rule 5-702 before being allowed to testify as to his process for determining the communication path of [the defendants’] cell phones,” as well as his conclusion that two specific cell towers “were the most pertinent to the case.” Slip Op. at 3. Under the Court’s holding and rationale, testimony interpreting technical data that is unfamiliar to a lay person and based on specialized knowledge or experience – and conclusions based on that data – must come from a witness who is proffered and qualified as an expert.

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