June 9, 2021  

In-Person Appellate Oral Arguments Ended Suddenly with a Bang, and are Restarting Slowly with Anticipated Full Strength in the Fall.

By: Michael Wein

What happened in March 2020 was an abrupt departure for everyone, and a surprisingly long segue from normal.  This post provides an update.   As outlined in detail in previous posts for this Blog,  the Maryland and Federal Appellate Courts (which include Maryland), suddenly postponed Oral arguments in March 2020.  They also had the unenviable task transitioning to Remote Oral Arguments for the first time.  It’s been that way for about a year.

Assuming T.S. Eliot is a legal authority (he’s not, but fun to quote) and as a matter of transitive logic, a “bang” wouldn’t signify the end of the world…only a whimper.   Thus, there will be a resumption of normal. [1]

Jury trials have resumed slowly with the progressive introduction of “Phase 5” and significant improvement in metrics throughout Maryland.  This overlaps with vaccinations over 70% of adults in Maryland, and new Administrative Orders dated May 25, 2021, which allow additional discretion in Courts, particularly for those fully vaccinated.   Left unsaid is how the appellate courts will reintroduce in-court oral arguments.  That’s a bit slower, but is primarily due to it approaching the effective end of the Appellate Terms, reducing the immediate time-sensitive concerns, of re-starting.  However, there has been strong indications that in-person oral arguments will be in force by Fall of 2021. 

Another interesting issue, is now that the Maryland Court of Special Appeals has begun having web-casted versions put online, if this means Maryland’s intermediate Appellate Court, will begin formulating some procedures, that as discussed in a previous post, would allow web-casting oral arguments on specific cases with security or significant public interest or public access concerns.  This would accommodate as well, the Maryland Court of Special Appeals, re-starting the Court’s en banc appeal procedure, after over a decade without an en banc appeal being granted.   

  1.  The Maryland Court of Special Appeals will begin in-person arguments in Annapolis in July 2021, noting that “all arguments being held in June 2021 will be remote arguments.  The Court will [hold] in-person arguments for its July 2021 and later sessions.” 
  • The Maryland Court of Appeals, had one day of in-person oral arguments last week on June 4, 2021.  This was the last day of orals for the September 2020 Term, and may have also been because due, as it was Chief Judge Mary Ellen Barbera’s last oral argument as an active Appellate Judge. It appears that the attendees to the orals were requested by the Clerk, to attend in person, as a professional courtesy, and they happily accommodated the Court’s request.   All the appellate judges, seemed to appreciate the re-introduction of in person arguments, which allows for greater interactions between the judges themselves, not to mention the at least 2 centuries of oral argument tradition in the United States.  
  • There does not appear to (yet) be confirmatory news from the United States Supreme Court.  However, as the last oral arguments of the Term were held in April 2021, it is not surprising that none were done this year.  Expect news from the Supreme Court, to happen by July 2021, on if the October 2021 oral arguments will be held in person, and the level of public admission, since that is complicated, because the Supreme Court does not have televised or web-casted proceedings.

Michael Wein is an attorney in Greenbelt, Maryland, whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com. 

[1] Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow
Life is very long.

[…]

This is the way the world ends
Not with a bang but a whimper. 

T.S. Eliot, The Hollow Men, 1925

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