Monthly Archives: March 2011

Every Appellate Lawyer’s Worst Nightmare

Is an opinion that says this:
“The events recounted in this opinion show that [lawyer] is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how [lawyer] has treated Lee, Washington and Moore. [Lawyer] has not asked for a hearing on the disciplinary order to show cause, and we now conclude that he has comported himself unprofessionally. We reprimand [lawyer] for this unprofessional behavior and fine him $5,000.00, payable to the Clerk within 14 days. [Lawyer] must send Lee, Washington and Moore copies of this opinion so that they may consider whether to file malpractice suits against him.”

The really crazy thing is that this is another opinion from the United States Court of Appeals for the Seventh Circuit, the same court I wrote about here. This one was written by Chief Judge Frank Easterbrook, for a panel that also included Judge Posner.

I wouldn’t even call this a benchslap. They hit this guy with a baseball bat. Seriously, don’t screw around with the Seventh Circuit. HT to the ABA Journal.

You Got Benchslapped!*

A benchslap is when a judicial opinion makes it clear, in no uncertain terms, that a party has done something that was not appreciated.

Via How Appealing, here is a great example of a benchslap that also makes an imortant point about appellate practice. This comes courtesy of the Hon. Richard A. Posner of the United States Court of Appeals for the Seventh Circuit:

“We’ll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants’ briefs present the evidence they’d like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court.”

This was an appeal of the entry of summary judgment against the plaintiffs. On summary judgment, the trial court can only consider undisputed material facts and is obliged to view those facts in the light most favorable to the non-moving party. The defendant’s statement of facts on appeal should have recited only those undisputed material facts that would have permitted the entry of summary judgment. Instead the defendant included disputed facts that no doubt would have been more favorable.

This is a bad call for a few reasons.
First, it makes the appellate court’s job tougher, because it has to sift through the facts recounted by each side and those relied upon by the trial court to determine: 1) what undisputed material facts the trial court relied on; and 2) whether those facts were legally sufficient to permit the entry of summary judgment.

Second, this approach really hurts your credibility with the appellate court. When you pull disputed facts into a case in this procedural posture, you can’t be surprised if the court takes that as a tacit admission that you know that you don’t win on the undisputed facts.

Third, as Howard Bashman points out, not considering the standard of review in reciting the facts can really hurt your chances of success on appeal. Essentially (this is me, not Howard), it’s bad lawyering. The standard of review decides many, many cases on appeal. If you are handling that appeal, you have to know that and tailor the brief to the applicable standard.

The standard of review is a prime strategic consideration in an appellate practice. As an appellant, it affects whether to file the appeal in the first place. You won’t see me filing many appeals that will be reviewed under an abuse of discretion standard. And no matter what side you are on, the standard of review is a consideration in settlement negotiations while the appeal is pending, because it affects the chances of prevailing.

Good lessons if appeals are part of your practice.
* To get the full effect of the title of this post, you have to read it aloud using the voice of Chris Tucker’s character Smokey in the 1995 movie Friday (“You got knocked the **** out!”).
** It is as yet undetermined whether Judge Posner “got mind control on Deebo,” but I wouldn’t put it past him.

Baltimore DePuy Hip Replacement Lawsuits

If you have sustained injuries from a DePuy hip replacement and want to hear from others suffering with the same problems, there is a really good dialogue between victims who may have potential lawsuits on the Maryland Injury Lawyer Blog.

Maryland Civil Appeals- Another win!

We are personal injury trial lawyers here at Miller & Zois. Let there be no doubt about that. But even our referring lawyers often do not know that M&Z has one practice area that is not solely focused on representing injury victims.

That is my Maryland civil appellate practice. Although I have a record of success in appeals involving personal injury, I handle civil appeals of all types.

Last week, I was able to achieve a successful result on appeal for a client in a non-injury case. This resulted in a reported opinion in the Court of Special Appeals of Maryland. The name of the case is Capital Select Realtors, LLC v. NRT Mid-Atlantic, LLC. You can read the opinion here.

The case involved a real estate commission dispute that was submitted to arbitration. A party to the arbitration went to the circuit court to attempt to confirm the arbitration award (which basically means to turn it into a judgment that can be collected in court). Instead of just turning the arbitrators’ award into a judgment, the trial judge modified the award to add two judgment debtors. I was able to persuade the appellate court that the trial judge should be reversed because the other side had failed to follow the Maryland statutes governing the situations where a circuit court is allowed to modify arbitration awards.

The significance of this being a reported opinion is that reported opinions are published in the Maryland law reporters (here Md.App.) and can be relied upon as precedents by litigants in later cases. In contrast, unpublished opinions only govern the case at hand and are not considered legal precedents. The idea behind arbitration is that it is supposed to cut down on litigation. So there are not really that many published Maryland opinions on the topic. I think that is one reason this case resulted in a published opinion. Hopefully, this good result for my client will also be helpful to other litigants down the road.

I am currently accepting referrals (from attorneys only) for civil appeals of all types. If the case is important to you and your client, you should consider consulting with a skilled appellate lawyer with a record of good results.