COSA Spotlight: Judge Daniel A. Friedman

By: Derek Stikeleather

In May, Blog Editor Derek Stikeleather sat down with Judge Daniel A. Friedman of the Court of Special Appeals (At-Large), to ask about his background, his chambers and law clerks, and how he prepares for oral arguments and writes his opinions.

 What has best prepared you for your work as a judge on the Court of Special Appeals?

Three sources of my background practice prepared me for judging. I was a “big-firm” private civil litigator at Miles & Stockbridge and at Saul Ewing. I did public/government litigation both at the Baltimore City Solicitor’s Office and for the Maryland Attorney General. These two types of work required different expertise, both of which are helpful now. On the academic side, I focused on teaching and writing about constitutional law at the University of Maryland School of Law. These three branches of my legal experience each developed different parts of my foundation as a judge, but none of the three was more important than the others.

What can you tell readers about how your Chambers functions? How many Law Clerks do you have and how do you divide up the work?

I have three Law Clerks: a senior law clerk and two term clerks. To manage work flow, I take the three days of oral arguments that I am assigned each month and assign one day to each law clerk. My clerks help me prepare cases whether I am going to author the opinion or not. On the day before the oral arguments, I take a long “walk and talk” with the assigned clerk. Yesterday, my clerk and I walked for 90 minutes talking about the cases I heard today.

Really? Where does this happen? In the courthouse or outside?

We walk around the third floor of the courthouse, which serves as a large track. My clerks know to bring their tennis shoes to work and keep a pair in their desk. The reason that we do this is because people learn in different ways. I read the briefs but I find that talking about them improves my understanding. Listening to my clerks talk about what facts they thought were important or how they understood the cases, really makes me sharper.

In preparing the cases, I try not to obsess over whether it’s an affirmance or reversal but instead try to understand how the arguments work. What do the competing lines of cases say? Sometimes, this generates additional assignments for the clerks before oral argument.

How does your hiring process work?

I look at resumes once an applicant has three semesters of law school grades – essentially in January of the 2L year. We have recruitment programs with Maryland and UB as well as American, GW, and Georgetown. My teaching partner, Professor Richard Boldt at Maryland, is important; there’s never been a hiring year when I haven’t touched base with him about students that he thinks would be a good fit.

I’m looking for great writers with diverse backgrounds. I’m especially excited about diverse candidates when they arise in the process. I’m also mindful that Chambers is a small office, and I want someone compatible with my team.

What is your opinion-writing process like?

Cases are assigned to authoring judges seven weeks before oral argument. Of course, if the panelists ultimately differ with the assigned author, assignments are re-shuffled.

At oral argument, I try to focus on what emerge as the pressure points of the case. There’s no sport in it. I’m not trying to grill or toy with an advocate. At the post-argument conference, the panelists vote. And, on the drive back from Annapolis, I call my clerks because I want them to hear as closely to verbatim as possible what the other panelists want. Judge X may want the opinion to present or clarify a certain rule, while Judge Y may rest the opinion on certain grounds but not others. I try to regurgitate that all to my clerks as fast as I can.

Recently, in addition to my oral report from conference, I’ve tried to write a skeleton first draft  to give to the clerks to show them the direction that I want to head.  From there, they draft. Once the clerks start drafting an opinion, I work hard not to micromanage them or take away the writing process from them Once they have a draft, they show it to their co-clerks and then to me. I’ll mark it up and give it back. Sometimes, we will pass drafts back and forth ten or fifteen times before it’s final. The goal is always to make it shorter and simpler. I hope that my opinions are seen as short and readable by lawyers and the lay public. I try to avoid complex terminology, legal Latin, and things of that nature.

What would you tell practitioners to remember as they write appellate briefs?

Attorneys must understand that they are the experts on their case because they have lived with it, often for years. An appellate judge is a stranger to the case. Tell me on page one what the case is about and what I need to decide. Sometimes, I finish the fact section and still do not know what is at issue in the case. My first piece of advice is to make it simple. Tell me a story and what to decide. Then simplify. Think about what things matter and what don’t.  Lawyers frequently include every date, simply because they are in the habit. But unless it’s a limitations case, I don’t usually care about all of the dates. If it is a contract case, write “This is a contract case. The disputed provision states ‘x, y, z.’ Although Plaintiff argues that this language is ambiguous, it is not. It means exactly what it says.”

What about oral argument?

Too often, advocates do not think about the holes in their cases. They spend too much time preparing for their dream question and writing a beautiful answer that will hit the case out of the park. Instead, they should be thinking about the questions that are the most dangerous to their argument. People spend too little time thinking about shoring up the weaknesses in their case.

Are these advocates in denial?

Some of it is denial. Some of it is the lawyer fantasizing about giving the winning speech and not about the answers that prevent a loss. When I was practicing and preparing for an argument, I felt good when I had a strong answer to the five worst questions that I might have been asked. Have a good answer to the five questions that could kill your case, and you’re ready.

 

How important is oral argument to you?

 

For me, the case is definitely not yet decided until oral argument and sometimes later. Some colleagues already have a draft opinion written when oral argument starts, but I think all are open to changing their minds.  Because we are a court of mandatory appeals, we get a percentage of cases that are not particularly close.  But the close cases can always be won or lost at oral argument. The best advice for oral argument remains “write a better brief,” but oral argument still matters.

 

In the end, my goal is to do justice in every case. Good advocacy is not about catering to judges’ whims; it’s recognizing that the goal is to do justice every time.

 

 

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