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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has led to the unintended consequence of “link rot” in appellate decisions — that is, the inclusion of links that are no longer valid.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…

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).

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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.

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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…