Sorting through the “Nuts and Bolts of Maryland Appellate Practice”

By Derek Stikeleather

On Wednesday night, I had the pleasure of attending the MSBA appellate advocacy program “Nuts and Bolts of Maryland Appellate Practice,” hosted by the Frederick County Bar Association. Headlining the panel were Court of Appeals Judge Lynne Battaglia, Court of Special Appeals Judge Kathryn Graeff, the Clerk of the Court of Special Appeals, Gregory Hilton, and practitioner Thomas Lynch of Miles & Stockbridge. Attached are the handouts from each speaker. Highlights after the jump.

Judge Battaglia playfully referred to her speech as her “swan song,” in light of her pending retirement from the high court in mid-April (opening a spot that, coincidentally, two panelists, Judge Graeff and Mr. Lynch, and at least two audience members, Andy Levy and my co-editor Karen Federman-Henry, have applied for). She focused her remarks on the certiorari petition process, noting some of its lesser-known points. She stressed that it is the judges themselves and not their law clerks who review the petitions. At conference, they vote in order of reverse seniority, and if three of the seven judges vote for granting cert, the petition is granted; when voting on opinions after oral argument, the judges vote in order of seniority. Finally, she noted the Court’s new policy of deciding all cases and issuing opinions before the end of the term (as is the custom in the United States Supreme Court).

Judge Graeff focused her remarks on the oral-argument process and the mistakes practitioners often make when transitioning from trial/jury practice to appellate practice. Although she agreed that the decisional process is normally far along when judges take the bench for oral argument, she also stressed that she has had oral argument change her opinion on cases several times. (This serves as a valuable reminder to those who like to think that oral argument doesn’t really mean anything.) Judge Graeff also explained that, although the Court of Special Appeals does not reveal the identity of its panelists until the morning of the argument (like the federal Fourth Circuit Court of Appeals), the author of the opinion is tentatively decided in advance and normally would only change if the designated author turned out to be a dissent from the other two panelists’ opinion on the merits.

The judges graciously fielded several audience questions, many of which focused on reply briefs. Judge Battaglia candidly noted that she rarely finds them useful. Judge Graeff elaborated, stating that too many simply repeat and affirm the points made in the original brief and that such last-wordism does not really help her decide the case. She urged practitioners to use the reply to specifically address the new points and arguments raised in the appellee’s brief. A brief that is responding and not repeating is much more likely to be useful to an appellate judge.

[Blog editor Karen Federman Henry did not participate in the creation or publishing of this post.]

Handouts

“Tips for Appellate Oral Argument,” the Hon. Kathryn Grill Graeff, March 2016.

“To Certiorari and Beyond,” the Hon. Glenn T. Harrell, Jr. (Ret.) & the Hon. Lynne A. Battaglia.

“Maximizing Your Joy and Return on Investment as an Appellate Advocate,” Thomas Lynch, March 16, 2016.

“Appellate Practice: The Clerk’s Perspective,” Gregory Hilton.

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