Prepare for Some Changes to the Maryland Appellate Rules

By Karen Federman Henry

Although the Court of Appeals of Maryland’s Standing Committee on Rules of Practice and Procedure meets regularly, and the Court routinely considers proposed changes to the Maryland Rules, their activities impact the appellate rules with less frequency than a blue moon.* In September, however, the Court of Appeals adopted a number of modifications to the appellate rules that will apply to practitioners beginning January 1, 2016.

• General—Rule 8-112, Form of Court Papers, continues to require footnotes of at least an 11-point font, and the text of documents must use at least 13-point font, but the option of using 1.5 spacing between lines has been removed; double-spacing is required except for headings, indented quotations, and footnotes.

• Length of documents is unchanged, but described differently — consistent with the key established in Rule 8-112 for typewritten documents (rather than computer-generated documents), the rest of the Rules that mention document length (Rules 8-207, 8-303, 8-503, 8-603, 8-605) replace the prior page-length requirements with word counts:
  • 13,000 words — no more than 50 pages
  • 9,100 words — no more than 35 pages
  • 6,500 words — no more than 25 pages
  • 3,900 words — no more than 15 pages
  • 2,600 words — no more than 10 pages
• Certification—a certification of word count and compliance with the font, spacing, and type size required by Rule 8-503(g) is provided in sample language and requires a signature:

Certification of Word Count and Compliance With Rule 8-112

1. This brief contains ______ words, excluding the parts of the brief exempted from the word count by Rule 8-503.
2. This brief complies with the font, spacing, and type size requirements stated in Rule 8-112.

___________________________________

Signature

Note: The previous version of the Rule did not require a signature.

• Correction of the record—Rule 8-414 clarifies the authority of the appellate court to order that a material error or omission in the record be corrected, and emphasizes that:
  • The court ordinarily may not order an addition to the record of new facts, documents, information, or evidence that had not been submitted to the lower court.
  • The court ordinarily may not order an addition to the record of new facts, documents, information, or evidence that had not been submitted to the lower court.

A Committee note acknowledges the Court’s ability to consider facts through judicial notice or for purposes of determining mootness. In addition, the Rule specifies the documents that should accompany a motion to correct the record and the information required when the parties disagree regarding the correction.

• Briefing schedule—Rule 8-412 clarifies that the appellant’s brief will be due no sooner than 40 days after the date the Clerk of the Court sends notice to the parties; the prior Rule permitted the Clerk to issue a schedule that counted the 40 days from the date the record was received by the appellate court. The new rule could expand the available time for the appellant to file its brief. For example, if the notice from the Clerk is sent two weeks after the record is received, the appellant could have 54 days after the record is filed to prepare the opening brief.

• Oral argument—Rule 8-522 establishes a 20-minute time limit for all arguments in the Court of Special Appeals, and retains the 30-minute allotment for arguments in the Court of Appeals; this reflects the practice of the intermediate appellate court for several years, so there is not really a practical change. Additional time can be requested within 10 days of filing the appellee’s brief.

• Reconsideration—Rule 8-605 provides specific criteria to include in a motion for reconsideration:
  • Whether the Court’s opinion did not address a material factual or legal matter;
  • Whether a material change in the law relevant to the appeal occurred after the case was submitted, but was not addressed in the opinion;
  • Whether a significant consequence of the decision was not addressed in the opinion;
  • In the Court of Appeals—whether the opinion conflicts with a decision of the U.S. Supreme Court or another opinion of the Court of Appeals; or
  • In the Court of Special Appeals—whether the Court’s opinion conflicts with a decision of the U.S. Supreme Court, the Court of Appeals, or a reported decision of the Court of Special Appeals.

Many of the changes conform to the appellate rules for the U.S. Court of Appeals for the Fourth Circuit. Overall, the modifications reflect many practical changes that have been implemented in recent years and will facilitate smoother operations in the appellate courts. For the frequent appellate practitioner, adjustment should come easy, but new or infrequent practitioners must heed these developments to ensure that their work complies with the Rules and establish good habits for appellate practice.

*In modern parlance, a “blue moon” can refer to either a second full moon within a month or a third full moon in a three-month season that has four full moons. Basically, it’s unusual. See Sinnott, Roger W.; Olson, Donald W. & Feinberg, Richard Tresch, “What’s a Blue Moon?” Sky & Telescope (July 27, 2006).