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Adnan Syed and How to Solve the Court of Special Appeals Public-Access Problem

By Michael Wein

The Maryland judiciary website posted last Wednesday about the Syed case guidelines for the public and news media interested in attending oral arguments. As noted in the detailed order by new Chief Judge Patrick Woodward, oral arguments are being held in Courtroom 1 on the second floor of the Courts of Appeal Building in Annapolis (the larger of the two courtrooms regularly used by the Court of Special Appeals). Courthouse security is taking significant protections against recording devices, and limited seating is being provided to the public and media.

This post is not about the Syed case, specifically. But the circumstances of the Syed oral arguments expose a lack of proper public access to any of the intermediate appellate court’s oral arguments, in noted contrast with the Court of Appeals.[1] Syed is quite obviously a highlighted, media-interest case, which poses an opportunity to discuss what procedures Maryland’s intermediate appellate court should consider, in at least the future, to accommodate public interest in specific, important oral arguments.

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Hidden Legal Horcruxes: “The Maryland Court of Appeals and the Amply Sized Certiorari Petition”

By Michael Wein

With the release of the movie “Fantastic Beasts and Where to Find Them,” it’s worth noting that Maryland law embraces Harry Potter, at least tongue-in-cheek. Three appellate decisions, by three separate appellate judges, have cited the popular series of seven books by J.K. Rowling and nine movies — though the citations are only to the first and third books. See People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 107 (2008) (J. Harrell) (discussing  how the “‘Sorting Hat’ is a magical artifact that is used to determine in which house (Gryffindor, Hufflepuff, Ravenclaw or Slytherin) first-year students at Hogwarts School of Wizardry and Witchcraft are to be assigned” in “Harry Potter and the Sorcerer’s Stone”); Bishop v. State, 417 Md. 1, 26 (2010) (J. Battaglia) (in “Harry Potter and the Prisoner of Azkaban,” a “‘boggart’ is a shape-shifting creature … that takes the form of the viewer’s worst fears. Because it instantly changes shape when someone first sees it, no one knows what a boggart looks like when it is alone. One way to combat a boggart is with the charm riddikulus.”); Bethesda Title & Escrow, LLC v. Gochnour, 197 Md. App. 450, 452 (2011) (J. Zarnoch) (during the litigation, “parties moved in and out of the complaint faster than Harry Potter’s broomstick in a Quidditch match.”) Now it’s time to bring out more advanced concepts of lawyer wizardry exhibited in the later books.

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On Love-Making, Regrets, and Footnotes in Appellate Briefs

By Derek Stikeleather

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.

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Rules Committee recommends ending ethics prohibition on “specialist” label

By Michael Wein

In a report released online on Wednesday, the Maryland Rules Committee recommended to the Maryland Court of Appeals that attorneys be no longer prohibited from advertising themselves as “specialists.” This was proposed as an amendment to Rule 19-307.4, Communication of Fields of Practice. (If you’ve never heard of Chapter 19, which now incorporates the Maryland Lawyers’ Rules of Professional Conduct (MLRPC), you’re in good company, as the reorganization only took effect on July 1.) A briefing on why this change has been suggested can be found in my previous extensive write-up two years ago on this Blog.

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2015 Developments in Combating “Link Rot”

By Michael Wein

One of the consequences of the greater availability and ubiquity of legal opinions online is that authors can directly hyperlink to sources, including other online decisions, and thus provide immediate access to the source material. This has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid. As noted in a 2013 New York Times article, at that time, 49 percent of links in online U.S. Supreme Court decisions were inoperative.

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Prepare for Some Changes to the Maryland Appellate Rules

By Karen Federman Henry

Although the Court of Appeals of Maryland’s Standing Committee on Rules of Practice and Procedure meets regularly, and the Court routinely considers proposed changes to the Maryland Rules, their activities impact the appellate rules with less frequency than a blue moon.* In September, however, the Court of Appeals adopted a number of modifications to the appellate rules that will apply to practitioners beginning January 1, 2016.

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Maryland High Court Grants Rapid Review of Underage Drinking Liability

By Steve Klepper (Twitter: @MDAppeal)

Update (9/8/2015): I have since learned that the grant in Davis v. Stapf was not an “own motion” grant. Rather, before the Court of Special Appeals filed its opinion, the plaintiff filed a petition asking the Court of Appeals to consider Davis v. Stapf along with a similar case (Manal Kiriakos v. Brandon Phillips, Case No. 20, September Term, 2015) where certiorari was granted in March. Still, it remains interesting that the Davis v. Stapf opinion prompted the Court of Appeals to grant certiorari outside of its normal conference schedule.


Yesterday saw unusual and fast action by the Court of Appeals of Maryland in a major case on liability for serving alcohol to minors. In an August 26 opinion in Davis v. Stapf, the Court of Special Appeals  ruled against the estate of a 17-year-old passenger killed in an auto accident following a party. The decedent, who riding in the bed of a pickup truck, and the 22-year-old driver were both intoxicated. The panel majority (in an opinion by Judge Graeff and joined by Chief Judge Krauser) found that the party’s host, who served the minor alcohol in violation of Criminal Law § 10-117(b), owed no statutory duty of care to the minor that could result in tort liability. Judge Nazarian concurred, believing that the fact the minor was not the driver cut the chain of causation.

Yesterday, just eight days after the CSA’s opinion, the Court of Appeals of Maryland issued a single grant of certiorari, outside its normal schedule: Read More…

Rules Committee Proposes to Clarify Rule on Clarification of Record

By Chris Mincher

In the past 10 years, Maryland’s appellate courts have labored to get the message to practitioners that Md. Rule 8-414 (“[o]n motion or on its own initiative, the appellate court may order that an error or omission in the record be corrected”) is not a way for a party to get stuff into the appellate record that wasn’t presented to the lower court. This conclusion, firmly articulated in Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 10 n. 9 (2005), has been reiterated in a handful of opinions since — including Li v. Lee, 210 Md. App. 73, 94-96 (2013), which explained that even evidence created after the lower-court proceedings are over can’t be added to the record via Rule 8-414. Basically, if it wasn’t in front of the lower court, it’s not an 8-414 error or omission in the record, because it’s not supposed to be in the record.

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The Judicial Policy Implications of Reckless Driving on Federal Land

By Steve Klepper (Twitter: @MDAppeal)

So you just received a citation for reckless driving on the Baltimore-Washington Parkway. You may think, perhaps, that you’re headed to Prince George’s County traffic court. Nope. The traffic ticket will tell you “U.S. District Court Violation Notice.” You’re headed to see a U.S. Magistrate Judge in Greenbelt.

That’s because the B-W Parkway is a federal enclave – federal land situated within Maryland’s borders. Read More…

“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture

By Steve Klepper (Twitter: @MDAppeal)

Getting argument before the Fourth Circuit is hard. Oral argument is a precondition for a published decision under its local rules. Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.

From 2007 through 2014, the Fourth Circuit issued 259 opinions in which a judge dissented in full from the majority opinion. Seventy-four (28.6 percent) of those opinions were unpublished. In turn, 21 of those majority opinions were per curiam. During that same period, the Fourth Circuit issued 46 majority opinions that drew a partial dissent. Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished. Read More…