A Theatre Kid’s Lessons for Appellate Practice
There’s a “theatre kid”-to-law-school pipeline.[*] Back in 2000, three out of four in my summer associate class, including me, were former theater majors. Although the parallels between theater and trials are more apparent, here are a few theater lessons that translate to appellate practice.
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…Visuals in the Art of Legal Writing
The old adage “a picture is worth a thousand words” can take on a whole new meaning, when you’re subject to a word limit. Including the pertinent visual from the trial court record (such as a photograph, plat, map or other drawing) in an appellate brief is simple[1] and can be more effective that a written description of the image. A visual reproduction allows the writer to magnify, highlight or “call out” an area or detail germane to the appeal, as well as grab the reader’s attention, as images are out of the briefing ordinary. Retired Judge Richard A. Posner wrote in support of this cause:
Read More…“He or She” after HB 1397
Fear: Why on earth are you writing yet another post on the singular “they”? The people who want to hear you have heard you, and you’re annoying everyone else!
Joy: There are lawyers who are trans or have trans loved ones who may not feel comfortable speaking up! It’s Baltimore Pride!
Since I last advocated for the singular “they” in place of “he or she” on this blog in 2021, there have been 547 Maryland appellate opinions with the phrase “he or she.”
“He or she” phrase reflects the best of intentions, to include everyone, not just men, when legal opinions discuss the hypothetical person.
The unintentional effect, however, is to exclude people whose gender identity does not fit the “he or she” binary. If you or a loved one’s gender identity is nonbinary, “he or she” says “you don’t belong” or “your family doesn’t belong”
Perhaps it feels like “‘wokeness’ of the day,” to quote a Michigan Supreme Court Justice. Here in Maryland, however, “he or she” is legally inaccurate across the board as of October 1, 2024.
Read More…Whren, Whren, Go Away…: Could the Days of the “Pretextual Traffic Stop” Be Numbered?
By Tia L. Holmes[*]
The “pretextual traffic stop”[1] issue appears to be on the minds of more and more lawyers and judges these days. The issue stems from a policing practice that was approved by the United States Supreme Court in Whren v. United States, 517 U.S. 806 (1996).[2] For decades, critics have expressed concern that Whren distorted or largely ignored the Fourth Amendment jurisprudence that preceded it, gutted Fourth Amendment protections for drivers and passengers, and authorized racial profiling[3] on America’s roadways.[4] These days, it is common to find briefs, scholarly works, and dissenting opinions decrying the policing practice. Even during an oral argument, it is difficult to avoid a discussion about pretextual traffic stops when the circumstances of a traffic stop are at issue.
Last year, I authored a post discussing Judge Dan Friedman’s concurrence in Snyder v. State, 2023 WL 1497289 (Feb. 3, 2023), in which he expressed his view that “Whren was wrong when it was decided in 1996 and remains both wrong and dangerous today.” My dedication to this issue has revealed that Judge Friedman is not alone. He joins dissenting judges throughout the country who also are concerned about Whren’s ongoing effects.[5] But judges have not only dissented. At least two states have declared pretextual traffic stops unconstitutional and departed from Whren on state constitutional grounds.[6] So, what does this mean for Maryland?
Read More…Who was Maryland’s First Female Appellate Attorney?
In 2006 and upon the realization that “the State’s history of female lawyers was lost” on members of the Bar and the general public,[1] Judge Lynne A. Battaglia founded The Finding Justice Project, which resulted in extensive historical research and the publication of Finding Justice: A History of Women Lawyers in Maryland Since 1642 (“Finding Justice”).[2]
In the spirit of Finding Justice, I ask – Who was Maryland’s first female appellate attorney?[3]
Read More…Introduction to Co-Managers of the Maryland Appellate Blog.
As the Maryland appellate courts have made historic changes with their official name changes, the Maryland Appellate Blog is excited to introduce its own updates with three new Co-Managers! Read more to learn more about each co-manager, their introduction to appellate law, and vision for the Blog.
Read More…Talking About Maryland’s Appellate Courts in the Past Tense
By Steve Klepper (Twitter: @MDAppeal)
Last month, Maryland voters approved a constitutional amendment renaming our appellate courts—with the Court of Appeals becoming the Supreme Court of Maryland, and the Court of Special Appeals becoming the Appellate Court of Maryland. Judges of the Supreme Court of Maryland will now be “Justices.”
Since then, lawyers have kept asking me the same question: “If I’m discussing a pre-name-change decision, do I use the new names and titles?”
Read More…Maryland Appellate Courts’ “Highlighted Cases” Pages Offer a Primer on Motions Practice
Motions are seldom the feature of an appellate opinion, but often play a prominent role in moving your case, efficiently and effectively, through the appellate process. Title 8 of the Maryland Rules, in Rules 8-431, 8-603 and others, impose requirements on the motion’s timing, scope, contents and appearance, as well as any response. The court may rule quickly, particularly when the motion is filed before the brief, and even dismiss an appeal on the court’s own initiative (see Rule 8-602(a)). While you may be looking forward to the next edition of the Appellate Practice for the Maryland Lawyer: State and Federal, for updates on the Motions Practice in State Appellate Courts chapter (as the author of that chapter, I certainly am!), consider in the meantime the “Highlighted Cases” pages of the Court of Appeals and Court of Special Appeals, each providing in real time examples of motions, responses and rulings. These websites are a helpful primer to appellate practitioners, whether you are seasoned or green.
In other news, the Maryland Appellate Blog wishes to congratulate one of our own, Brad McCullough, on his appointment to the Circuit Court for Montgomery County. He has been a Blog editor and colleague since we started in 2013. We will miss him, but our loss is Maryland’s gain.
MSBA Appellate Practice Skills Program: July 18, 20 & 21
The MSBA, joined by the editors of the Appellate Practice for the Maryland Lawyer: State and Federal (Paul Mark Sandler, Andrew D. Levy, and Steven M. Klepper), judges of the Court of Appeals and Court of Special Appeals, practitioners, and representatives from the Office of the Public Defender and Office of the Attorney General, are introducing a comprehensive appellate practice skills workshop. The three-day virtual event will run on Monday July 18, Wednesday, July 20 and Thursday July 21. For a full agenda, list of presenters and registration information, click here.
Maryland Appellate Blog 