Supplemental Authority Letters and Other Unwritten Maryland Appellate Rules
By Steve Klepper (Twitter: @MDAppeal)
Ever since this blog launched in 2013, I’ve received fairly regular calls and emails asking about arcana of Title 8 of the Maryland Rules, governing procedure in the appellate courts. Perhaps the most frequent question is how to notify a Maryland appellate court of new on-point authorities.
In the federal appellate courts, the answer is simple. You file a Rule 28(j) letter:
Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
Maryland Rule 8-504, our equivalent of the federal Rule 28, lacks any provision for supplemental authorities. Does that mean supplemental authorities are forbidden? Or must you move for leave? Do the supplemental authorities take the form of a letter or a supplemental brief?
Read More…Mercer v. Thomas B. Finan Center: Cuckoo’s Nest Redux?
The Court of Special Appeals reported decision in Mercer v. Thomas B. Finan Center, September Term, 2019, No. 1398 (Md. App. decided Jan. 28, 2021) (“Mercer”), addressed procedural requirements applicable in the context of the administration of antipsychotic drugs against a patient’s will. More particularly, the issue was whether an institutionalized mental health patient was denied procedural due process, when, at the start of an administrative hearing regarding the involuntary administration of antipsychotic drugs, the administrative law judge (“ALJ”) declined to conduct an on-the-record colloquy to confirm that the patient had knowingly and voluntarily waived his statutory right to counsel.
Read More…March 2021 Maryland Certiorari Grants
On Friday, the Court of Appeals granted review in four cases, all civil. It has assigned two cases to the current Term, meaning they will be argued this spring, and two for the next Term, meaning they will be argued this fall.
Read More…An expert witness fails to bridge the “analytical gap.”
The Court of Special Appeals recently decided Matthews v. State, No. 3280, Sept. Term, 2018 (Feb. 25, 2021), a case where two homicide victims were killed by shotgun blasts delivered at close range. The sole issue at trial was the identity of the shooter. Writing for a panel that included Senior Judge Paul Alpert and Judge Kathryn Graeff, Judge Douglas Nazarian observed: “The story of this case is complicated and hard to follow.” Those complications were due largely to the cast of characters who served as trial witnesses.
The case is the first reported opinion dealing with the reliability of expert testimony issued after the Court of Appeals’ decision in Rochkind v. Stevenson, 471 Md. 1 (2020). But the panel’s application of Md. Rule 5-702(3)—with its requirement that an expert witness not fall into an “analytical gap”—did not depart from pre-Rochkind jurisprudence, confirming that even before Rochkind’s adoption of the Daubert standard, Maryland courts strictly applied Rule 5-702’s mandate that expert testimony be based on a sufficient factual basis. Unlike the case as a whole, the facts regarding the “analytical gap” issue luckily are not complicated.
Read More…Congress Considers Creating New Federal Appellate Seats, and the Usual Political Arguments Emerge.
By John Grimm
The House Judiciary Committee recently held a hearing to consider creating additional federal judgeships, including the addition of new appellate-court seats.[1] The hearing revealed bipartisan concern that rising caseloads—and the growing backlogs they produce—threaten litigants’ access to the courthouse. At the appellate level, courts have grappled with increasing workloads by giving more power to staff attorneys to manage low-profile cases. Witnesses also cited curtailed oral arguments and a proliferation of unpublished decisions as casualties of appellate court overload.
Read More…The Singular “They” Reaches the White House, But Not the Appellate Courts
By Steve Klepper (Twitter: @MDAppeal)
Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:
Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.
Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.
The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.
I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”
Read More…February 2021 Maryland Certiorari Grants
Yesterday, the Maryland Court of Appeals granted certiorari in four criminal appeals and three civil appeals. The cases, with the questions presented and links to the Court of Special Appeals opinions under review, are below.
Read More…Issues That May Be Raised For The First Time On Appeal
Every appellate attorney is familiar with the rule that the appellate courts will not consider arguments raised for the first time on appeal. My experience doing criminal appeals informs me that I better make sure my issues were raised below, otherwise I can expect the Office of the Attorney General to begin their response brief with an argument that the issue was not preserved and therefore should not be considered on appeal.
Where an issue was not raised below, normally the only recourse is to ask the appellate court to exercise plain error review pursuant to Maryland Rule 8-131(a). That is an uphill battle that usually results in the appellant rolling backwards a long way down.
However, there are certain issues that may properly be raised for the first time on appeal. Appellate attorneys reviewing the trial record should keep a lookout for these issues as they may be dispositive to the appeal.
Read More…Problems with Modern Electronic Legal Research—“Googlization” versus “Boolean Logic”
By Michael Wein
About every two to three years, Westlaw and Lexis representatives contact my office about renewing my existing (and not inexpensive) legal database subscription or switching to the other company. I have used legal databases since college, though which one I prefer is not the subject here. What’s comparably new is both companies for about the past decade, have boasted their new legal database systems now have a sophisticated algorithm search comparable to Google, for every appellate (and most Federal District Court cases), to quickly and correctly locate the best cases on the topic. This conceivably makes Boolean logic or just regular “keyword” searching, unnecessary or obsolete. As explained below, though there are some advantages, depending on the market audience, it is not necessarily these algorithms are superior, particularly when it comes to locating more obscure appellate caselaw, to help win a case.
Read More…The importance of non-pattern jury instructions
Maryland’s appellate courts strongly encourage lawyers and trial judges to rely on pattern jury instructions, observing that pattern instructions “have been put together by a group of distinguished judges and lawyers who almost amount to a ‘Who’s Who of the Maryland Bench and Bar.” Green v. State, 127 Md. App. 758, 771 (1999). Thus, “generally the pattern jury instructions suffice and trial judges usually may rely on them.” Bayne v. State, 98 Md. App. 149, 160 (1993). But lawyers should not be complacent and simply rely on pattern instructions without thinking whether other non-pattern instructions could buttress their cause. In an opinion by Judge Stuart Berger, writing for a panel that included Judge Kevin Arthur and Senior Judge Robert Zarnoch, the Court of Special Appeals reversed a judgment where the trial judge refused to give requested non-pattern jury instructions that correctly stated the law, were supported by the evidence, and were not fairly covered by instructions the court actually gave. Six Flags America, L.P. v. Gonzalez-Perdomo, Case No. 1620, Sept. Term 2019 (Dec. 16, 2020).
Read More…
Maryland Appellate Blog 