Monthly Archives: January 2010

Today’s Sign Of The Apocalypse

In case “Jersey Shore” doesn’t work out, cast member Vinny plans to go to law school. I do not remember tanning being a big part of law school.

Two Bonus Appellate Tips From The Experts

For those of you who are in suspense, Part Two of my Tips for Appellate Argument is still in the works. In the meantime, I thought I would share some knowledge from two experts in the field.

Last week I attended the Maryland Association for Justice’s Workhorse seminar. Part of the program was a talk on appellate advocacy given by the Hon. Joseph F. Murphy, Jr. of the Court of Appeals of Maryland and by Marc Fiedler, an attorney with Koonz, McKenney, Johnson, DePaolis & Lightfoot in Washington, D.C.

To whet your appetite for the balance of my thoughts, here is one selected tip from each.

From Judge Murphy:
As you prepare for argument, (1) anticipate questions, (2) rank them in “degree of difficulty,” and (3) develop an answer. The Answer may be, “Yes, your Honor, on the facts of that case, but no on the facts of this case.” The answer may be, “We concede on that issue, but are entitled to [a reversal] on [another issue that is more favorable to you].” Do not run the risk of hearing that “you have not answered my question!”

From Mr. Fiedler:
Pay close attention to the applicable standards of review. Standards of review largely determine the power of the lens through which the appellate court may examine a particular issue. An error that may be a ground for reversal under one standard of review may well be insignificant under another. Therefore you must craft your brief and oral argument on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win.

Helpful information. It is incredibly valuable to hear practice suggestions, particularly from the bench, no matter how much experience you have. I suggest that all lawyers take these opportunities when they are presented.

Opening For A New Appellate Judge

The Maryland Judiciary has announced that there is an opening on the Court of Special Appeals of Maryland due to the retirement of the Hon. James P. Salmon. This seat corresponds to the Fourth Appellate Circuit, consisting of Prince George’s County.

The Court of Special Appeals is the state’s intermediate appellate court. Per the state judiciary’s website, there are not yet any applicants for the seat. I will keep an eye on this vacancy. Because I practice in Prince George’s County frequently, there is a good chance I will know something about any prospective applicants.

This Is Just Sad- Lawyer Charged With Carjacking

Today the Baltimore Sun reports that a former Baltimore County prosecutor has been charged with an armed carjacking. He is noted to have had recent legal troubles, apparently stemming from addiction issues. According to the article, efforts to strip him of his law license are underway, with the Court of Appeals of Maryland scheduled to hear the case next month.

I can’t help but feel bad for the guy. Obviously, he is charged with committing a serious crime. By expressing sympathy, I don’t intend to minimize that. But this is a person who seemingly was a productive member of society before getting on the wrong path.

There are always articles in the bar association newsletters talking about how practicing law is a high-risk profession for substance abuse and depression. I would urge anybody who needs help to get it. Stories like this should remind everyone that even though “it can’t happen to me,” sometimes it can.

Tips for Appellate Argument, Part One

The last few months, I have been appearing in appellate courts more often than trial courts. For a lot of trial lawyers, this would be a bad thing. I actually prefer it. Don’t get me wrong, I enjoy trial work- I love the competition and the chance to use my creativity. But I love handling appeals. If I had the choice, I would choose an appellate argument over a jury trial any day of the week.

Here are a few thoughts I have about the right way to handle oral argument before appellate courts. They are not in any particular order. Actually, one of them is, and it’s first.

DO NOT READ THE ARGUMENT. Seriously. If you think this is a good idea, you are not competent to handle appeals. In fact, not only should you not handle appeals, but if I have to sit there while you read it, you should be killed. Every appeals judge in the land will instantly hate your argument if you are reading. Since they sit on an elevated bench, this means that they can only see the top of your head. It means you are not making eye contact. It demeans the process because it inhibits free flowing interaction with the court.

It undermines your ability to quickly analyze and react to the court’s questions. Even though this seems like the most common-sense rule imaginable, I have personally seen two lawyers do this in the last 30 days. I think all of us are a little nervous, even if only for the first few sentences. But if you need to read a prepared argument, you are probably are not cut out to be an appellate lawyer, and you should retain appellate counsel.

ANSWER THE COURT’S QUESTIONS. Appellate judges are usually pretty smart. If you are not expecting to get asked tough questions, you don’t know what you’re doing. The judges expect answers. If you try to duck the question, you will likely get caught, and the court will ask you again. Or, if you are really unlucky, you will get asked if you are conceding you don’t have a good argument because you are avoiding the question. Also, don’t answer a question if you did not fully hear or understand it. This happened to me in my last argument. I got a long convoluted question from a judge who talks fast. I didn’t catch the last sentence. The right way to handle this is to say “I’m sorry your honor, could you repeat that?” In my case, I ended up with seven laughing judges, because I don’t think I was the only person who didn’t catch it. But it did get rephrased, and I was then able to give an appropriate answer. It’s better to ask than it is to give a bad answer to a question you didn’t hear or understand.

MEET HYPOTHETICALS HEAD-ON. Appellate courts love hypotheticals. Remember, if you are in a court of record, there is a good chance a reported opinion will ultimately get applied to lots of factual situations that differ from the specific facts before the court in your case. Judges are conscious of this, and you can expect hypotheticals designed to test how the result you are trying for would affect different facts. Sometimes these questions are designed to present intentionally absurd facts to test the logical reasoning of your argument. Don’t be afraid to pick these hypotheticals apart. If the facts differ so greatly from your case that a different result would happen, tell the court that and tell them why.

Check back later in the week for a few more of my thoughts on this topic.

Court of Appeals Considers Expert Witness Bias Discovery

I have been away from the blog for a few days because I have been preparing for oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.
Yesterday I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought out by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do, is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

What I see is the same group of doctors being used repeatedly by certain defense attorneys, law firms, and insurance companies. Many of these doctors are very well compensated for giving testimony. I have encountered doctors who have billed as much as a million dollars in one year for doing this type of work.

We want to put this information before the jury to show that the witness is biased in favor of those who are writing his very large paycheck. Often, the witness will not tell us how much they are paid for working as a professional witness, or will greatly under-report their earnings. So we subpoena financial documentation to see if we are being given a straight answer.

The Court of Appeals is expected to address the scope of the documentation we are able to obtain, and the means for obtaining it. The opinion could have broad implications for all Maryland lawyers handling injury cases. I think the oral argument went pretty well. If you are interested and have the free time, you can see the argument here. They are cases No. 60 and 90.

I am not sure how long it will take the court to issue an opinion, but I expect to wait at least a few months. I will post the opinion when it comes out. I am hoping the court will come down on the side of our juries having accurate information about the self-interest of the witnesses presented to them.

Check Out This Interview With Hon. John Nagle

You usually do not see sitting judges doing a lot of press. Part of the job is the appearance of being above the fray. So this interview the Baltimore Sun did with newly sworn Baltimore County Circuit Court Judge John Nagle is kind of a rare opportunity to see a judge speak publicly about how they feel about the responsibility of the position and the way they intend to run a courtroom.

Judge Nagle is clear that he disapproves of attorneys who appear flip or glib. I am now making a mental note to tone it down when appearing before Judge Nagle.