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The Singular “They” in Legal Writing

By Steve Klepper (Twitter: @MDAppeal)

There are few writing conventions as cumbersome as “he or she.” It’s not natural English. If you were to see the silhouette of a backlit person on the street, would you ask, “Who is he or she?” Or, like a normal person, would you ask, “Who are they?”

Nevertheless, teachers and professors drilled into me that the singular “they” was barbarism. The one exception was a common phrase like “to each their own,” because “to each his or her own” was an awkward bridge too far. “He or she” was necessary to be both inclusive and grammatically correct, even as writing otherwise moved in the direction of natural language.

This issue arises frequently in legal writing, which often involves discussions about a hypothetical individual, such as the “reasonable person.” I’ve used tricks to avoid the “he or she” problem. “If a Marylander wishes to apply for a license, he or she must first do X,” easily becomes “If Marylanders wish to apply for licenses, they must first do X.” But that work-around can be awkward, especially when overused.

It’s also a cop out. My family (traditional and chosen) includes non-binary people who use they/them pronouns. It’s important to non-binary people that we use their correct pronouns. It can cause them genuine distress to insist on using binary pronouns.

I’m sure some will read this post and cry “political correctness!” When it comes to legal writing, however, it’s a matter of legal correctness. Read More…

What Kim Kardashian and Prince William Can Teach Us About Remote Oral Arguments

By Derek Stikeleather

The COVID-19 pandemic has given us all innumerable “new normals.” Even appellate practitioners, whom the Daily Record recently described as “relatively unscathed” by the pandemic, have had to change how they conduct business. This is especially so when it comes time to present oral arguments. Read More…

Facing Type: A Tour of the Court of Appeals’ List of Suggested Fonts for Briefs

By John Grimm

The Daily Record recently informed me that the Governor’s stay at home order has left appellate lawyers “generally unscathed.”[1]  “Indeed,” I thought to myself, while downstairs my eleven-month-old patiently waited a full workday as I edited a brief.  Actually, working from home has left at least this appellate lawyer a bit scathed, so I’ve had little time to study the appellate news lately.  And what news there is seems to be all about courts’ new emergency procedures anyway, so in this post, I am going to address a topic that is irrelevant to current events, but which is a preoccupation for many appellate lawyers: typography. Read More…

COSA Spotlight: Judge Daniel A. Friedman

By: Derek Stikeleather

In May, Blog Editor Derek Stikeleather sat down with Judge Daniel A. Friedman of the Court of Special Appeals (At-Large), to ask about his background, his chambers and law clerks, and how he prepares for oral arguments and writes his opinions.

 What has best prepared you for your work as a judge on the Court of Special Appeals?

Three sources of my background practice prepared me for judging. I was a “big-firm” private civil litigator at Miles & Stockbridge and at Saul Ewing. I did public/government litigation both at the Baltimore City Solicitor’s Office and for the Maryland Attorney General. These two types of work required different expertise, both of which are helpful now. On the academic side, I focused on teaching and writing about constitutional law at the University of Maryland School of Law. These three branches of my legal experience each developed different parts of my foundation as a judge, but none of the three was more important than the others.

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Dos and Don’ts When You Learn Who Is on Your Court of Special Appeals Panel

By Steve Klepper (Twitter: @MDAppeal)

Few Maryland lawyers are accustomed to advance notice of which judges will be deciding their appeal. The Fourth Circuit and the Court of Special Appeals have traditionally kept the identities of three-judgment panels secret until the morning of argument. But the Court of Special Appeals will now be announcing panels 7 to 10 days before argument.

That lead time gives counsel an opportunity to make productive or counter-productive use of that information. In this post, I address what you must do, should do, and should not do when you learn who is on your three-judge panel. Read More…

Thank You for Writing Dissents

By Steve Klepper (Twitter: @MDAppeal)

At this year’s bar convention, I took the opportunity to thank Senior Judge Irma Raker for something she did 12 years ago. When I lost the first Court of Appeals case that I argued, Judge Raker wrote a short solo dissent. It meant a lot to me as a young associate, having entered argument feeling like I would win, to know I’d convinced at least one judge.

There are a many different reasons why appellate judges write dissents or refrain from writing them. From a private practitioner’s standpoint, I tell judges that dissents are a powerful way to improve attorney-client relationships. Read More…

Why Maryland Appellate Courts Should Send Focus Letters Before Oral Arguments

By Derek Stikeleather

Appellate practitioners continuously debate the relative value of oral argument. Although most practitioners—and many appellate judges—agree that the quality of appellate briefing matters much more than the quality of oral advocacy, opinions vary considerably on how much oral argument helps. Some contend that oral argument is more trouble than it is worth. Others disagree, believing that oral argument not only often separates winning and losing on appeal but also increases everyone’s faith in the justice system. Both sides of the debate have some good points; I won’t try to declare a winner here.

One fact beyond debate is that federal appellate courts are holding significantly fewer oral arguments. Read More…

#AppellateTwitter’s “cleaned up” craze hits Maryland

By Steve Klepper (Twitter: @MDAppeal)

If you’re on Twitter, you may have come across the campaign by Jack Metzler (@SCOTUSplaces) to convince attorneys and judges to use a new parenthetical. Metzler has found remarkable success in a short time, and that success is now official in Maryland.[*]

Two reported opinions of the Maryland Court of Special Appeals, released on Friday and Monday, included the parenthetical “(cleaned up)” at the end of a citation and dropped a footnote to explain this strange new creature. Read More…

Remembering Judge Howard S. Chasanow

By Brandon Moore

We mourn the loss of Judge Howard S. Chasanow, a former judge on the Court of Appeals of Maryland, who died on April 2.  I had the privilege to hear Judge Chasanow speak in October 2014 at the portrait and chief judge transition ceremony for his wife, Judge Deborah K. Chasanow, a senior judge of the U.S. District Court for the District of Maryland.  Judge Chasanow joked about his wife’s aversion to the spotlight, even at an event held in her honor.  “It’s hard to give speeches about people who won’t let you talk about them,” he quipped.  That night, Judge Chasanow displayed the same charm that many lawyers had come to admire.

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Remembering a Mentor

By Karen Federman Henry

Anyone who has clerked for a judge knows that a special bond develops during that relationship. For a budding attorney, a clerkship provides one of the first opportunities to gain insights into the practice of law. The perspective of a judge can form a strong foundation for a law clerk’s future pursuit of a law practice. I had the good fortune to serve as a law clerk to the Hon. Rosalyn B. Bell when she sat on the Court of Special Appeals of Maryland. With her passing in August, and a memorial service in October, it seemed like a good time to reflect on the impact she had on her clerks, the legal profession, and the practice of law.

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