By: Derek Stikeleather

Attorneys love rules. And our adversarial legal system functions best when both sides understand and follow common rules. So one Maryland appellate rule has always confounded me because it is routinely construed as meaning the opposite of what it apparently says. Rule 8-501(c) plainly states that the “record extract shall not include . . . any part of a memorandum of law in the trial court, unless it has independent relevance.” Most lawyers would reasonably construe this as telling practitioners to exclude their trial-court briefing from the record extract unless the brief itself had factual relevance—e.g., including a brief to show that an argument was not waived or that a party made inconsistent arguments.

But this is not how the Rule is read in Maryland. Former Maryland appellate clerks and even some Maryland appellate judges have repeatedly told me that if, for example, a party prevails on summary judgment or a motion to dismiss, the court and its clerks appreciate having the related briefing in the record extract. The Rule would indicate that the record extract should contain the exhibits to the relevant briefing without the briefs themselves. Apparently not.