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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“Soft Precedent”: Unpublished Opinions in Fourth Circuit Culture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 Even in cases where the court hears argument, there remains a strong chance that the opinion will be unpublished – even if there is a dissent.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 Seventy-four (28.6 percent) of those opinions were unpublished.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 Twelve (26.1 percent) of them, including three per curiam majority opinions, were unpublished.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…

Two Court of Appeals Judges Indicate Support for Permitting Attorneys to “Specialize” in Fields

By Michael Wein

Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n  v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).

Read More…

Maryland Court of Appeals Ends Unusual Certiorari Procedure

By Steve Klepper (Twitter: @MDAppeal)

With no fanfare, the Court of Appeals of Maryland has ended an internal practice that was unusual among state high courts. At the May meeting of the MSBA Litigation Section Council, Court of Appeals Judge (and Section Chair) Glenn Harrell informed the council that the Court of Appeals has, effective immediately, disbanded its Bypass Committee.

Read More…

Juror #4 and Me: A Tale of Trial on Remand

By Steve Klepper (Twitter: @MDAppeal)

On Friday, February 28, I finally had a chance to talk with my lovely wife, Meredith, about what had been on her mind for past 1½ weeks. From February 20 through 28, Meredith wasn’t just a mother, an R.N., and a graduate student. She was also Juror #4, in front of Judge M. Brooke Murdock of the Circuit Court for Baltimore City. Read More…

New 2014 Appeal Rules that You May Not Find in Your Hardcopy Rules Book

By Michael Wein

I’m sure there are some Maryland attorneys who, like me, look forward to receiving a hardcopy of the two-volume Maryland Rules from Lexis annually around Christmas. The hardcopy is supposed to catalogue the most updated Rules. Unfortunately, it appears that the new Rules from the late November 2013 Court of Appeals meeting, which took effect on January 1, 2014, were omitted. Therefore as a courtesy, I am reiterating that readers, before filing their certiorari, merits, or amici briefs, should review the actual Rules that took effect on January 1. Read More…

Maryland General Assembly Abrogates Court of Appeals Decision Imposing Strict Liability on Pit Bull Owners and Their Landlords

Yesterday, Governor O’Malley signed SB247, officially abrogating the 4-to-3 decision in Tracey v. Solesky, 427 Md. 627 (2012), which imposed strict tort liability on pit bull owners, and on their landlords, for injuries caused by pit bulls. Read More…

The Most Important Part of an Appellant’s Fourth Circuit Brief (Is Not What You Think It Is)

By Steve Klepper (Twitter: @MDAppeal)

Inconspicuously placed at the conclusion of Fourth Circuit Local Rule 34(a) is a provision that “parties may include in their briefs at the conclusion of the argument a statement setting forth the reasons why, in their opinion, oral argument should be heard.” Forget the word “may.” The Local Rule 34(a) statement is, I submit, the most important part of an appellant’s brief. Read More…

Government Practice—A Different Perspective

By Karen Federman Henry

[Editor’s note: We’re happy to present the first post by the newest member of our editorial board.]

As an attorney representing a local government, I enjoy a unique opportunity to delve into a wide array of legal issues. The work itself can range from litigation to administrative hearings to legislative drafting to advising public officials, agencies, and departments as they seek to achieve goals that enhance the interests of the community. While the individual tasks and topics presented may not differ from those seen in private practice, the nature of the client has an impact on the manner of giving advice and providing representation. Read More…

Supreme Court Abrogates Fourth Circuit Rule on Time to Appeal Contractual Attorney’s Fee Award

By Steve Klepper

Until this morning, the following rule prevailed in the Fourth Circuit:

[A] claim for legal costs based on a contractual provision that is not limited to expenses incurred during the underlying litigation is an element of damages to be proved at trial under the substantive law governing the action, see Fed.R.Civ.P. 54(d)(2), 58(c), and that a judgment that leaves open such a claim is not final and appealable.

Carolina Power & Light Co. v. Dynegy Marketing & Trade, 415 F.3d 354 (2005)

No more. This morning, the Supreme Court cited Carolina Power as standing on one side of a circuit split, and the Court unanimously went the other way: “Whether [a] claim for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Ray Haluch Gravel Co. v. Central Pension Fund, __ U.S. __ (Jan. 15, 2014).

Anyone litigating contract actions in the Fourth Circuit should take note. Decisions from the Third, Eighth, and Eleventh Circuits also were cited on the losing side of the circuit split.