Seven Maryland Justices, Seven Non-Maryland Law Schools
Pop quiz!
Question 1: Which court has more justices who received their law degrees from Maryland law schools?
(a) Supreme Court of Maryland
(b) Supreme Court of Montana
Question 2: Which of these courts has the fewest justices who received their undergraduate degrees from Maryland colleges or universities?
(a) Supreme Court of Maryland
(b) Supreme Court of Michigan
(c) Supreme Court of Montana
Appellate Court Undermines Rochkind by Conflating Rule 5-702 and Rule 2-501
[DISCLOSURE: Although I do not represent the defendant hospital in Jabbi v. Adventist Healthcare, Inc. No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported), I often represent Maryland hospitals seeking to exclude causation experts favored by the Plaintiffs’ Bar. That said, I have devoted more of my professional life to the admissibility of causation-expert testimony under Rule 5-702 and the impact of Maryland’s adoption of the Daubert standard in 2020 than to any other subject. The Appellate Court’s reported Jabbi opinion merits not only commentary but also certiorari.]
Maryland cannot simultaneously adopt Daubert, as the Supreme Court of Maryland expressly did in its 2020 Rochkind v. Stevenson decision, but subsequently reject General Electric Co. v. Joiner’s bright-lineabuse-of-discretion standard—as the Appellate Court apparently did in the recent reported decision Jabbi v. Adventist Healthcare, Inc., No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported).Because the defendant would have been entitled to summary judgment if the expert was excluded, the Jabbi court viewed the challenged expert testimony in the “light most favorable” to the expert. Allowing Jabbi to stand as a precedential opinion would destroy the clarity that adopting Daubert provided and open a second era of “jurisprudential drift” for Maryland’s expert-testimony case law.
Read More…When Is an Appellate Rule Not a Rule?
Attorneys love rules. And our adversarial legal system functions best when both sides understand and follow common rules. So one Maryland appellate rule has always confounded me because it is routinely construed as meaning the opposite of what it apparently says. Rule 8-501(c) plainly states that the “record extract shall not include . . . any part of a memorandum of law in the trial court, unless it has independent relevance.” Most lawyers would reasonably construe this as telling practitioners to exclude their trial-court briefing from the record extract unless the brief itself had factual relevance—e.g., including a brief to show that an argument was not waived or that a party made inconsistent arguments.
But this is not how the Rule is read in Maryland. Former Maryland appellate clerks and even some Maryland appellate judges have repeatedly told me that if, for example, a party prevails on summary judgment or a motion to dismiss, the court and its clerks appreciate having the related briefing in the record extract. The Rule would indicate that the record extract should contain the exhibits to the relevant briefing without the briefs themselves. Apparently not.
Read More…Panel Splits on Stops for “Security Checks”
By: Chris Mincher
Police officers on the lookout for crime know that people with illegal things usually try to conceal them. If the object is big and bulky enough, sometimes that isn’t so easy. People who carry illicit items under their clothes might have to take some extra measures to make sure they stay there.
On the other hand, while concealing a firearm is typically a crime, generally shoving things into one’s pants is not. As such, Maryland courts have decided that mere adjustments and manipulations of the waistline don’t create a reasonable suspicion of illegal activity without some other indication that a gun is involved. But what if the police officer describes those adjustments and manipulations as specific “security checks” consistent with a potential concealed firearm? Does that pass muster for Fourth Amendment purposes?
Read More…ACM Panel Divides on “Irregularity” Under Rule 2-535
When more than 30 days have passed since the entry of a judgment, it’s tough to challenge. To revisit the judgment that late, there needs to be one of three things set forth in Md. Rule 2-535: “fraud, mistake, or irregularity.” The vaguest of those terms, “irregularity,” covers failures by the court and its employees and agents (but not attorneys) to follow proper practices and procedures.
The grounds for an “irregularity” are more clear when it is a judge or the clerk’s office making a mistake (say, by not sending a required notice), but for other personnel involved in the judicial system it can be murky — as was evident earlier this year in the split Appellate Court decision in Howes v. Howes. The case demonstrates that, while new policies and methods for dispute resolution evolve to become part of the “regular” court system, they may create pitfalls for unwary litigations that are impermissibly “irregular.”
Read More…Five for Five: Five Justices Conclude the five-year Limit to Modify a Sentence is Jurisdictional in a 3-1-2-1 Decision
By: Isabelle Raquin
On August 29, 2024, a three-justice plurality and a two-justice concurrence of the Supreme Court of Maryland (SCM) agreed in State v. Thomas, No. 15 (Sept. Term 2023), that the five-year deadline under Maryland Rule 4-345(e)(1) for a circuit court to hear a motion to modify a sentence was a self-imposed jurisdictional deadline per the court’s rule-making authority. Previously, the SCM had held, in the context of the 30-day time to file a notice of appeal, that a deadline established by the SCM’s rule-making authority is a mandatory claims processing rule; which, of course, the parties may waive or forfeit without divesting the court of the power to act. In reliance on the logical application of the mandatory claims processing rule to the court-imposed five-year time for a circuit court to hold a hearing under Rule 4-345(e)(1), Mr. Thomas appealed the circuit court’s failure to timely schedule a hearing as requested, and its subsequent denial of the motion to modify once the deadline passed.
Read More…ACM Holding: Omitting “Against You” Won’t Be Held Against You
By: Chris Mincher
When it comes to the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), words matter. Although the law is clear that there is no specific mandatory Miranda language, straying from the traditional mantra raises questions. For example, is the notice that “everything that you say can be used on the court day” the same as “anything you say can be used against you in a court of law”? While the former ultimately passed muster in Alvarez-Garcia v. State, the Appellate Court panel split on the significance of omitting the phrase “against you.”
Read More…Coyle v. State: Ineffective Certiorari Counsel is Inconsequential
By: Chris Mincher
The murder of William Porter has been a bit of a wellspring for appellate criminal-law questions (many of which have been covered here already) and they’re still popping up 14 years later. Porter v. State produced judicial ink on self-defense, battered-spouse syndrome, the standard for jury instructions, and other wide-ranging topics. Now, earlier this year, Coyle v. State split the Appellate Court as to whether a defendant can, on the basis of ineffective assistance of counsel, file an untimely petition for writ of certiorari after his attorney — who was appointed by the Office of the Public Defender — botched the initial deadline. (Practice note: If you leave Bethesda at 3 p.m. in standstill beltway rush-hour traffic you may face difficulty getting to the Clerk’s Office in Annapolis by 4:30 close. Just a heads-up.)
Read More…Maryland Courts Ponder Preemption with Puzzling Results
By: Chris Mincher
Bonnie Campbell and her husband, Michael Campbell, got a divorce. As part of that, they executed an agreement in which Mr. Campbell expressly waived any right that he had to the proceeds of a “Federal Thrift Savings” retirement plan that was held by Ms. Campbell. The agreement further provided that if, for any reason, Ms. Campbell failed to change the plan’s beneficiary from Mr. Campbell to someone else, Mr. Campbell would either “disclaim … any entitlement to any benefits” from the Plan, “assign all rights” to receive Plan benefits to the Ms. Campbell’s estate, or directly pay the benefits to Ms. Campbell’s estate.
Ms. Campbell ultimately failed to change the beneficiary from Mr. Campbell to someone else. When she died, Mr. Campbell — rather than disclaiming entitlement to the proceeds, or assigning the rights to or directly paying the proceeds to the estate — applied for and received, without disclosing his previous agreement to the contrary, approximately $717,000 in proceeds from the plan.
Does that sound right? Might it be the correct result anyway?
Read More…Why Maryland Should Allow 28 Days for Post-Trial Motions
What attracts many lawyers to appellate practice—besides an unusual appetite for legal writing and a general distaste for contentious discovery—is the confidence that fire drills and surprises rarely occur. Appellate briefing deadlines and oral arguments are normally set months in advance, and extensions are liberally granted. Appellate lawyers often seem to be nicer (albeit nerdier) people. And everyone on appeal is bound by the trial-court record. No juries and no witnesses. Just the lawyers and a panel of judges applying the law to the settled facts on record.
This dynamic of unharried research and rules-driven deliberation often yields superior legal analysis, not because appellate lawyers are smarter than other litigators but because they usually have the time to reflect on an issue and get it right. They also know that opposing counsel and reviewing judges will have time to carefully consider whatever they write and say. Any missteps or misrepresentations will most likely be noticed and exposed.
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