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Appellate Courts’ “Undying Appreciation” for Useful Record Extracts

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Robert McDonald is known for thorough, scholarly opinions, which earned him the MSBA Section of Litigation’s Harrell Award for Judicial Excellence in 2019. He is not known for hyperbole. As a result, this footnote in one of his recent opinions, MVA v. Geppert, was striking:

In presenting the relevant materials to us, the parties have distributed them over four separate appendices and a copy of the record extract that was filed in the intermediate appellate court. This suggests that there may have been a lack of cooperation between counsel. We will not attempt to assign blame for this situation and, in any event, we have reviewed the original record for purposes of this opinion. We simply note that future litigants will earn the undying appreciation of an appellate court if they can successfully consolidate relevant materials from the record in an agreed-upon record extract, as encouraged by Maryland Rule 8-501.

When Judge McDonald says litigants have an opportunity to earn an appellate court’s undying appreciation, he means it. And if you attend continuing legal education events where Maryland appellate judges speak, you’ll hear strong opinions from the judges regarding the record extract (our state-practice equivalent of the Joint Appendix). When I lectured alongside appellate judges in conjunction with the release of the fifth edition of Appellate Practice for the Maryland Lawyer, the judges often would perk up when I discussed the record extract.

Below I’ll address six key ways that advocates can make record extracts more helpful to appellate judges.

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“This is the Way”— A Practical Roadmap Towards Constitutional Electoral College and Redistricting Reform.

By Michael Wein

Following last week’s election results, with Pennsylvania and Arizona decided and declared by all media outlets, President-Elect Joseph Biden and Vice President-Elect Kamala Harris’ will be Inaugurated on January 20, 2021.  Considering the divisiveness of the 2020 election, it is unsurprising there has been significant online discussion of the present Electoral College system.   This is also unsurprising, as two of the last six Presidential elections have gone to the candidate who did not win the popular vote nationwide. Two pending Federal Circuit Court of Appeals cases are strong Certiorari candidates to the Supreme Court, tackling Electoral College reform not through a transition to popular vote, but rather, a more accurate transition to the traditional Congressional District allocation method approved by Framers such as James Madison, and currently employed only in Maine and Nebraska.

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A Maryland Guide to Judicial Recusal

By Derek M. Stikeleather

Recusal standards for appellate judges rarely trend on social media. But the recent nomination of Seventh Circuit Judge Amy Coney Barrett to the United States Supreme Court has spawned widespread popular debate over whether she should recuse herself from deciding any cases involving the results of the 2020 Presidential election. Regrettably, most media soundbites on the issue offer little more than partisan excerpts of her supporters saying that she should not recuse herself and her critics arguing that she should. Few delve into the controlling rules and standards.

Ultimately, a Justice Barrett recusal seems unlikely for one simple reason: At the Supreme Court, the recusal decision rests exclusively with the Justice herself and is not subject to further review. Thus, absent any unambiguous precedent that requires her recusal or a statement from Judge Barrett that she plans to recuse herself from election cases, she appears unlikely to do so.

While I have nothing special to add to the arguments for or against a potential Justice Barrett recusal, the uproar prompted me to look more closely at Maryland’s standards for recusing appellate judges. Here’s what I found:

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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…