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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…

E-filing by MDEC becomes mandatory for appeals from all Maryland counties on July 1

By Steve Klepper (Twitter: @MDAppeal)

Yesterday, the Court of Appeals approved changes to the Maryland Rules that, as of July 1, 2020, will require all attorneys to file through the MDEC system in all appeals, including from circuit courts in the remaining non-MDEC counties (Baltimore City, Montgomery County, and Prince George’s County). Read More…

“The Times, They are a-Changin”—New Proposed Rules to Streamline Maryland Appeals, Foretell Major Changes

By Michael Wein

Songwriter Bob Dylan has been cited in at least two (2) appellate cases in Maryland and one United States Supreme Court case.[1] So with that topical reference to the Nobel Prize poet laureate Dylan, it makes sense to spend some time, (even when it’s “a-changin”), on what was proposed and passed as the 203rd Report by the Maryland Rules Committee on February 28, 2020, and presently before the Maryland Court of Appeals. Careful attention by regular appellate practitioners are a given, but even trial practitioners may want to prepare for appeals earlier, as the proposed Rules, are a sea change in Maryland, even if they seem to follow the Fourth Circuit’s model. At the very least, trial counsel should consider contacting qualified Maryland appellate counsel much earlier for assistance. Read More…

Maryland Judiciary Case Search now includes appellate dockets

As of today, the public can search Maryland appellate dockets through Maryland Judiciary Case Search, the site long used for searching trial court filings. Hopefully, this development will lead to Maryland appellate dockets being searchable in Westlaw. Read More…

Update: Maryland Court of Special Appeals, For Now, Appears to Adopt Televised “Zoom” Oral Arguments for Public, and Other Appellate Court Developments

By: Michael Wein

As a previous piece last week noted,  the four (4) appellate courts potentially affecting Maryland practitioners postponed their March and/or April oral arguments, because of the coronavirus health crisis.  We now have more information on what three (3) of the courts have adopted, as at least interim solutions, while retaining some flexibility of a “wait and see” approach depending on the status of the crisis in early May. Read More…

Oral Arguments Postponed Left and Right Due to Coronavirus…At Least in Maryland, How Long Should this Last?

By: Michael Wein

It began with court and jury trials being postponed throughout the State of Maryland.  But the past 10 business days have seen a remarkably swift progression in the postponement of appellate oral arguments in all Maryland and related Federal Courts due to the novel coronavirus. Read More…

Maryland Court of Appeals also offers e-filing option in appeals from non-MDEC jurisdictions

By Steve Klepper (Twitter: @MDAppeal)

Following yesterday’s similar announcement by the Court of Special Appeals, the Maryland Court of Appeals today posted on its home page that MDEC filing will be optional in appeals originating in the three non-MDEC jurisdictions (Baltimore City, Montgomery County,  and Prince George’s County). Read More…

COSA offers optional e-filing in non-MDEC counties during emergency

By Steve Klepper (Twitter: @MDAppeal)

Late Sunday, the Court of Special Appeals updated its home page to announce a significant change to mitigate disruptions to Maryland appellate practice during the COVID-19 emergency. The largest volume of appeals come from the three jurisdictions that have yet to transition to Maryland Electronic Courts (MDEC): Baltimore City, Montgomery County, and Prince George’s County. As a result, appeals from those three circuit courts have been paper-only.

As of March 15, however, the Court will allow filings via MDEC, as an optional alternative to paper filing, in appeals from non-MDEC jurisdictions. Read More…

Emergency Appellate Motions Practice in the Fourth Circuit

By Steve Klepper (Twitter: @MDAppeal)

A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.

As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers. Read More…

20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?

By: Michael Wein

Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions.   Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”

The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.

RULE 1-104. UNREPORTED OPINIONS

(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…