After Six Months of Being Civil

By Carrie J. Williams

In January, after 16 years with the Maryland Attorney General’s Criminal Appeals Division, I joined the appellate practice at Goodell, DeVries. After six months, I am reflecting on the biggest differences between civil and criminal practice.

The biggest shock for me has been the relative dearth of civil case law. In my first month at Goodell, I vainly searched for cases on nuanced points of civil litigation, terrified that my legal research skills had suddenly abandoned me. Eventually, I realized that searching was not the problem. The cases I wanted just don’t exist.

Although civil cases comprise roughly two-thirds of the Appellate Court of Maryland’s reported opinions and a little over half of the Supreme Court of Maryland’s opinions (not counting Attorney Grievance Commission cases), the numbers don’t tell the whole story. Despite the wide variety of criminal appellate issues, they all stem from a criminal investigation and/or prosecution initiated by the State. Compare that to the breadth of possible civil litigation. For example, of the 87 reported civil appellate opinions (49 ACM and 38 SCM) in 2022, 13 involved the propriety of State action, i.e., the constitutionality of a statute or the State’s ability to regulate certain activities, 12 addressed property or zoning issues, 9 were appeals from family law cases, and 6 concerned employment law questions. That’s 40 cases whose holdings are unlikely to have applicability beyond the specific case’s discrete area of law.

And although certain evidentiary issues in criminal cases have civil implications, the admissibility of expert testimony being one of the most obvious, most criminal cases are likewise not broadly applicable. While 87 reported opinions a year may sound like a lot, the reality is that many civil litigation issues never make it to an appellate court, even if they arise fairly frequently in the lower courts.

So what does this mean for me and other lawyers whose first instinct when faced with a legal question is to search published appellate opinions? I see three advantages in civil law’s relatively unsettled terrain. First, it allows creative lawyering in the lower courts. Without appellate guidance on a particular issue, lawyers can argue first principles to trial courts without having to compare or distinguish a body of existing case law.

Second, it favors strong legal writing. Without controlling case law, advocates must explain their legal analysis and reasoning. Trial judges, like the parties, often lack the benefit of appellate court guidance. This makes a clear and concise legal argument all the more persuasive. Particularly when compared with a poorly organized, confusing, and hastily written opposition.

These first two advantages create a third, and it’s one of the things I love most about appellate practice—the ability to shape the law. A well-reasoned, well-written argument in a trial court leads to a well-reasoned, well-written brief in the appellate court. And a litigation team that includes an attorney who can focus on preserving and presenting legal issues increases the likelihood of appellate success when the opportunity arises.

While it can be frustrating to realize that a frequently reoccurring issue has somehow eluded appellate review, I’ve learned to see these moments as golden opportunities. Only by planting the seeds of appellate success at trial can attorneys collect the harvest on appeal.