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.
British playwright Noel Coward memorably observed that coming across a footnote is like going downstairs to answer the doorbell while making love. Although this quip has left my mind’s eye with an image it can’t un-see every time I consider dropping a footnote, it has not banished footnotes from my legal writing. But the vivid quote and a recent Maryland federal-court opinion have prompted me to consider more carefully when and when not to use footnotes.
By John Grimm
I recently posted about appeals in District Court of Maryland cases, including lesser-known appellate options. Maryland also allows for an unusual type of appeal from circuit court decisions — the in banc appeal. Article 4, § 22 of the Maryland Constitution allows, with some exceptions, a party who loses “any trial conducted by less than three Circuit Judges,” to request review “in banc” (and yes, for the pedantically inclined, the term of art is “in banc,” not the more common “en banc”) by three circuit court judges, in lieu of an appeal to the Court of Special Appeals.
By John Grimm
One of the challenges of a criminal practice in the Maryland District Court is deciding how best to position your client for appeal. A typical day in the District Court can be a busy, if not hectic, affair, requiring lawyers to wrangle witnesses, work out plea deals, examine discovery, and, not uncommonly, meet and interview their clients for the first time. Although it can be hard to devote attention to preserving appellate issues, or even thinking about appellate strategy, the District Court’s unique jurisdictional status presents both appellate risks and benefits, and, during your trial preparation, it’s worth giving a little thought to what you’d want your criminal appeal to look like.
In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home. Read More…
The NCAA basketball tournament – more commonly referred to as “March Madness” – is upon us. It’s one of the year’s most beloved sporting events, replete with dramatic comebacks, stunning upsets, and marvelous individual performances delivered in the national spotlight and under intense pressure. Teams that achieve success during the tournament, and have a chance at enjoying that “one shining moment,” must be carefully constructed. They must strike the right balance. Those teams need shooters and passers, big players who thrive down low “in the paint,” quick players who attack on the perimeter, and both defensive specialists and offensive whizzes.
Similar care should be given when building a litigation team. A good team obviously needs at least one lawyer who possesses excellent trial skills. Someone who can cross-examine opposing witnesses, can deliver compelling jury arguments, and can develop a persuasive trial strategy.
The First Amendment to the U.S. Constitution protects a tapestry of expression in our society, including speech, association, art, dance, attire, and music. Few exceptions exist, and when they do they are extreme—obscenity and incitement to riot are never protected, although the line does not always appear to be bright and clear. The Court of Special Appeals recently reminded us of a much simpler exception to the protection in Thana v. Board of License Commissioners for Charles County, Ct. Spec. App., Sept. Term 2014, No. 1981 (January 29, 2016): when the First Amendment issue is not preserved for appellate review.
Do you have bad writing habits that detract from your appellate briefs? Perhaps the arrogant, pompous jerks out there don’t think so. Irregardless, to expose a few annoying tendencies of brief writers, we went to their audience. In this feature of first impression, five Court of Special Appeals judges shared their least favorite words, phrases, idioms, and other writing practices that they frequently encounter in appellate briefs. See Kuzmin v. Thermaflo, Inc., 2009 WL 1421173 at *2 n. 6 (E.D. Tex. May 20, 2009) (“By submitting a poorly written brief, the attorney fails the Court as well as the client.”). Read on to see why this paragraph would drive the members of that Honorable Court nuts.
When it comes to typography, attorneys seem to generally pursue two goals: (1) don’t break any court rules; and (2) don’t do anything too different from everybody else. Obviously, staying in compliance with court direction is an imperative, but rigidly conforming to a standardized format never made much sense to me — considering the hundreds of pages of briefings appellate judges and clerks slog through day-in, day-out, why would anyone want theirs to blend into the pack? It would be one thing if the status quo was the unquestioned, consensus pinnacle of composition perfection, but it’s not.
Fairly often, as I prepare an appellate brief, my husband will offer to write it for me. As he is a retired assistant fire chief, this always intrigues me, so I’ll ask him how he would take all the complex issues I have to address and present them to the court. His reply typically tells me the simplest (and shortest) brief would say, “I’m right and they’re wrong.”
Obviously, I have not used this technique, but it helps to keep this concept in mind when writing a brief. At the most basic level, isn’t that what each of us is trying to say in our briefs? Whether we have 35 pages or 50 pages available to us, it all really boils down to an effort to persuade the appellate court to accept and adopt the position we present on behalf of our client.