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…
Until now, the Maryland Court of Special Appeals (like the Fourth Circuit) has not disclosed the identities of the three judges hearing an appeal until the morning of argument. That is changing, beginning next month.
According to the Court’s May 2019 schedule:
This change comes just four months after Chief Judge Matt Fader took the reins at the Court of Special Appeals.
The timing of panel disclosure means that briefing will have closed by the time the parties learn which judges will be hearing their cases. Without leave of court, replies must be filed at least ten days before argument, under Rule 8-502(b).
By John Grimm
It’s no secret that the names of Maryland’s appellate courts are not to be taken literally: The Court of Special Appeals hears all appeals, while the Court of Appeals hears only special ones. Even lawyers admitted in Maryland who do not practice regularly in state court stumble over this nomenclature, and for non-lawyers or out-of-state lawyers (or even judges), the courts’ names provide little useful information about their roles in the Maryland judiciary.
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…
By a large majority, Americans favor term limits for Supreme Court justices. As Professor Orin Kerr has observed on Twitter: “Reminder: It is incredibly weird that how many Supreme Court picks a President gets depends on who decides to retire or who dies. 18-year terms would make so much more sense than life tenure. Every Prez would get two picks.” I agree with this idea. The devil, however, is in the details.
A constitutional amendment is necessary, and the mere perception of partisan advantage is likely to prevent ratification by the necessary 38 out of 50 states. A delayed effective date could help, even if it may not be enough for an amendment to get traction.
Still, I think it is worth at least starting a conversation on what a term-limits amendment might look like. Read More…
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…
Supreme Court Circuit Split Watch – Fourth Circuit’s Decision in Kumar v. Sudan, on Proper Service of Foreign States in the U.S.
By Michael Wein
The Fourth Circuit Court of Appeals three weeks ago issued a reported opinion in Kumar et al. v. Sudan, addressing how and where a foreign country may be served under 28 U.S.C. § 1608(a)(3), which allows, in pertinent part, service by mail “requiring a signed receipt to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” This case traces to the U.S.S. Cole bombing in 2000, when 17 Navy sailors lost their lives in a terrorism act against the servicemen and women docked in Yemen. While al Qaeda claimed responsibility as the source of the bombing, Sudan’s material support for the terrorist organization, was a focus of civil suits holding the country responsible in the tragedy. As Sudan similarly did in the face of civil suits filed in the District Court for the District of Columbia, (tracing to the 1998 Embassy Bombings in Tanzania and Kenya also by al Qaeda), Sudan felt that the proper response was apparently to not respond at all.[i] Read More…
By Derek Stikeleather
A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues. Read More…
By Michael Wein
Appealable final judgments have been described as a legal quagmire that for “the past forty or fifty years … no one issue has been the subject of more opinions than the question of whether a trial court order is appealable …” Brewster v. Woodhaven Bldg. & Dev. Inc., 360 Md. 602, 623 (2000). Going further, the Court of Appeals noted “[n]either the Code nor the Rules define when an order or ruling is sufficiently final to qualify as a judgment…’[W]hether a ruling is final’ … is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the ‘twilight zone’ of finality”) Circuit City Stores, Inc. v. Rockville Pike Joint Venture Ltd. P’ship, 376 Md. 331, 347 (2003), quoting in part, Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964)). The solution for the “marginal” and/or inadvertent non-final judgment cases being actually decided on the merits by the Maryland appellate courts, with reasonable continuing predictability for the vast majority of appeals that do not have these concerns, may be found in a Federal Rule and legal interpretation, and recent developments support a similar Rules adoption. Read More…
At noon today, the Court of Appeals of Maryland hit a major milestone. For the fourth straight year, the Court of Appeals met its case management standard of deciding every single case in the same term in which it was argued. By August 31 of each year, the Court of Appeals issues its opinion in every case argued since September 1 of the previous year. This standard was the first major reform that Chief Judge Mary Ellen Barbera announced when she took over as Chief Judge in 2013. At the time, the Court had just issued multiple opinions that had taken years to decide. Four years later, Chief Judge Barbera is now four-for-four.