Recap of September 14 Appellate Practice Event

By Lauri Cleary
Guest Contributor

On September 14, the Prince George’s County Bar Association and MSBA Appellate Practice Committee hosted, and Appellate Committee member Michael Wein moderated, a program that featured tips and strategies from accomplished appellate jurists and practitioners.

The Hon. Douglas R.M. Nazarian walked attendees through the new initiatives underway in the Court of Special Appeals to increase efficiency, including electronic filing for the three remaining non-MDEC jurisdictions (Baltimore City and Montgomery and Prince George’s Counties), enhancements to the Court’s informal briefing procedures to more closely resemble the Fourth Circuit, and the overhaul of its internal scheduling methodology. These scheduling changes could greatly diminish the time lag between final judgment and oral argument by allowing an automatic 30-day extension of time for briefing (upon request), and, rather than keying extensions to preset oral argument dates, waiting to schedule oral argument once cases are fully briefed.

The Hon. Joseph F. Murphy, Jr. (ret.) offered his insights (and some amusing Moylan quotes) into selecting issues for appeal, contrasting the need to cull down the number of issues in the majority of cases, with to the need to pursue all potential errors in the rare case in which their cumulative effect might provide the best basis for reversal. He also warned against exalting insignificant errors.

Tim Maloney gave an entertaining review of some of the most effective approaches to framing questions presented, featuring examples from actual cases and tips from master writers from Justice Scalia to Bryan Garner to Stephen King. He added King’s take (shared by many top writers) on issue selection to Judge Murphy’s comments, noting that it can be painful to “kill your darlings,” but it must be done.

Hon. Erek L. Barron described his approach to each new appeal he handles, sharing his views on selecting issues, as well. He reminded attendees to pay attention to errors in voir dire and instructions, cautioning “you only have but so much time and so much real estate,” so go with “rare, meaty issues” that may be more likely to lead to a reversal or acceptance of certiorari—in other words, kill your darlings.

Finally (pun intended), Diane Feuerherd gave an overview of principles of finality of judgments in Maryland, and a discussion of the trap for the unwary found at the intersection of the “separate document rule,” the “entry of judgment rule,” and the “30 day rule” as addressed by the Court of Appeals’ opinion in Lee v. Lee, 466 Md. 601(2020). If you missed this very informative and entertaining program, fear not—the program was recorded, and that video soon will be available for viewing.

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