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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…

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Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018

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…

Final Judgments and Harmless Jurisdictional Error in Maryland

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…

September Term 2016 is a wrap!

By Steve Klepper (Twitter: @MDAppeal)

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.

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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