Dos and Don’ts When You Learn Who Is on Your Court of Special Appeals Panel

By Steve Klepper (Twitter: @MDAppeal)

Few Maryland lawyers are accustomed to advance notice of which judges will be deciding their appeal. The Fourth Circuit and the Court of Special Appeals have traditionally kept the identities of three-judgment panels secret until the morning of argument. But the Court of Special Appeals will now be announcing panels 7 to 10 days before argument.

That lead time gives counsel an opportunity to make productive or counter-productive use of that information. In this post, I address what you must do, should do, and should not do when you learn who is on your three-judge panel.

What You Must Do

The primary purpose of this change is to improve the recusal process. The Court’s website states: “If any party has a basis for seeking recusal of any judge listed as sitting in a courtroom in which that party’s case is pending, a motion should be filed no later than three business days before the argument.”

Three Things You Should Do

First, read the cases, both reported and unreported, the judges have authored on your legal issues. It is a chance to anticipate questions.

Second, knowing your panel should bring more effective moot courts. You should already be mooting your arguments before experienced appellate lawyers. Now your panelists can better simulate questioning if they’re familiar with the judges or if you’ve given them the judges’ on-point opinions.

Third, if you’re a civil litigator, you may wish to make one more attempt to settle a case. Even if you think you couldn’t have drawn a better panel, there is always a risk of losing. One week gives you time to call opposing counsel, explain why you’re all the more confident, and see if the other side is now has more flexibility. On the flip side, if you think the panel is a terrible draw, one week may be time to adjust your client’s expectations and get them what you can in settlement.

To be clear, panel identity is far from a perfect predictor, and panels can reach surprising decisions. But panel identity is useful information when settling cases. Argument can distort parties’ perceptions of their chances on appeal. An advocate can hit the ball out of the park on every question—against an opponent who whiffs like 2019 Chris Davis—and still lose. The time between learning a panel’s identity and argument can present a unique settlement opportunity.

Three Things You Should Not Do

First, do not pander to the judges, which is the traditional justification for keeping panel identities secret. Judges hate it, and it’s counterproductive. If an opinion is reported, it means the Court as a whole voted to adopt the opinion as a precedent that binds the Court as a whole. You therefore add nothing to your argument if you note that the authoring judge is on your panel. There’s an element of presumptuousness, moreover, that invites a judge to note the ways your case differs from the prior case.

Second, do not cite panel members’ unreported opinions. Rule 1-104, which prohibits citation of unreported opinions as precedential or persuasive authority, applies to briefs and oral argument alike. If an opinion is unreported, either the author did not ask the full Court to adopt it as precedent, or the Court voted against such a request.

Third, if you think your panel is bad draw, do not suddenly discover some last-minute ground to move to reschedule argument. I’m sure the blog’s readers know better than to violate the duty of candor. Nor would postponement be likely to get an advocate very far. The Chief Judge tentatively assigns the author for each opinion over a month before argument. Changes in argument dates, for reasons other than recusal, rarely affect who will author the opinion.


One response to “Dos and Don’ts When You Learn Who Is on Your Court of Special Appeals Panel”

  1. Michael Wein says :

    Knowing the panel does make a difference, for orals, in two ways.

    First, I typically will bring a few extra cases with me to orals, on the chance that one of the judges who authored an opinion, which may not be 100% on point, nevertheless is sitting. (If it’s 100% on point, I’ll bring it regardless) So much like overpacking for a trip, I’ll overpack for a COSA oral, because I don’t know whom among the active and inactive judges will be attending, and if my argument is last, I’ve got some spare time.

    Second, there’s a greater understanding of the audience. The COSA panel may not have had a direct case law, but analogous cases authored by a panel judge, may still help at better arguing the case.

    I’m not sure I agree that cases would be “settled” simply based on a panel….after all there’s still Certiorari with the Md. Court of Appeals. It would be interesting if this does lead to more and better moot courting.

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