Baltimore Injury Lawyer Blog

I am slowly getting back into my daily routine after concluding a long trial in the Circuit Court for Baltimore City.

Regular readers (assuming there are some) know that I usually provide a summary of my cases that go to trial, but I have to sit this one out. In lieu of my usual post-game wrapup, I offer the following: "The matter resolved in a manner mutually agreeable to the parties, beyond which I have no comment."

Sorry, curious readers. Maybe next time.

But that's OK. On to the next case. And I have some interesting things cooking: a trucking accident that caused a brain injury, a retained foreign body medical negligence case, and an appeal involving the scope of a trial court's authority to confirm an arbitration award, among others. So I won't run out of cool stuff to do.

As a bonus, here is a step into Bizzarro-world. In Shady Grove Orthopedic Assoc. v. Allstate, Justice Scalia writes an opinion in favor of a class of plaintiffs, allowing a class action to proceed in federal court despite a state law that arguably would bar the action. Scalia? Plaintiffs? Wierd, huh? Really, I think this has more to do with the scope of Congress' rules enabling statute and respecting precedent than anything else. But nonetheless, Scalia gives one to the good guys. HT to SCOTUSblog.

Even more bizarre is the makeup of the majority: Scalia, Roberts, Stevens, Thomas and Sotomayor(?) Strange bedfellows indeed.

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

I would like to see a much broader range of experience. I think the Court is becoming too homogenous. It is full of former appeals judges, government lawyers, and academics. By way of example, once John Paul Stevens (I just love his keyboard work on Houses of the Holy) retires, there will not be a single member of the Court who has ever served in the military. I would bet that more than half of the current Justices have never tried a jury trial, and that no more than one of nine has ever represented an ordinary person in court outside of a pro bono program in some huge law firm. On this issue, the only "maybe's" I can find are Anthony Kennedy and Sonia Sotomayor. Kennedy at one point took over his late father's private practice, and at some point Sotomayor worked on her own, but I couldn't find exactly what kind of work each did. But that's only two possibles of nine. I think that is a real problem.

The thing about the law is that it does not exist in the abstract. Certainly there are broad policy components to nearly everything the Court does. But having the brute mental horsepower to wrap your mind around those sort of weighty issues is not the whole ballgame. At some point, ALL law is ultimately applied to a specific situation. That is where the rubber meets the road. And we have a Court full of people who have never been there when that happens. We do not have one single Justice who made a career representing individual human beings.

And we never will. Never. The word you are looking for is "unconfirmable." The day a real trial lawyer sits on the Supreme Court I will probably die from shock. We live in a world where Rep. Bruce Braley is shouted down on the House floor to cries of "trial lawyer."

I did a minimal (and when I say minimal, I mean minimal) amount of research, and I found only two Justices who made representing real people a focus. Abe Fortas, who argued Gideon v. Wainright (the case establishing a right to counsel free of charge for defendants in criminal cases) and Thurgood Marshall who argued a case you probably have heard of, Brown v. Board of Education (school desegregation). Interestingly, Marshall also argued Murray v. Pearson in the Court of Appeals of Maryland, which resulted in the desegregation of the University of Maryland's law school. That school's law library is now named after Marshall.

Would the Senate confirm Thurgood Marshall today? I wonder. Just look at the recent controversy over some of his comments in the context of Elena Kagan's nomination. In a speech in 1987 Marshall described the Constitution as originally drafted as a "defective" document. You know, because of that whole thing about it basically leaving out any rights for people who were not white males.

Kagan was a clerk for Marshall. She was attacked by Republican National Committee Chair Michael Steele as having shown "support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective.’” First, what an insane system we have where a nominee is scrutinized over what she thought of a speech her former boss made in 1987! Second, Michael Steele should thank God every day that Thurgood Marshall held those views, since if he had not, there is a good chance Steele would never had the chance to go to Georgetown or to be Maryland's Lieutenant Governor, what with him being African-American and all.

Imagine the controversy if Marshall himself was the nominee in 2010. Staff counsel for the NAACP? These kind of things are why we have the blandest Court possible. Lawyers who hold strong beliefs and who will go to court and fight for them on behalf of average Americans will never sit on a court where having no record to critique is actually an advantage in the confirmation process. So there you go. Don't look for me or Bruce Braley on the Supreme Court anytime soon. But, you never know. Ruth Bader Ginsburg was counsel to the ACLU.

The Baltimore Sun reports that the Senate Judiciary Committee has approved President Obama's two most recent judicial appointments for Maryland. The nominees are Ellen L. Hollander, and James K. Bredar. This means that the next step in the confirmation process is for the nominations to proceed to the Senate floor for a confirmation vote by the full U.S. Senate.

Hollander has been a judge on the Court of Special Appeals of Maryland since 1994. For out-of-state readers, this is Maryland's intermediate appellate court where appeals of right are heard by three-judge panels. It is a court of record, where opinions may published if they touch upon issues of broad significance. I have argued appeals before Judge Hollander. She was bright and well-prepared, and has a good reputation among the bar generally.

Bredar has been a United States Magistrate Judge since 1998. A magistrate is basically "judge light." Typically they rule over pre-trial motions, settlement conferences, and discovery disputes and issue opinions that are then adopted or approved by Article III (confirmed by the Senate) judges. Magistrates may also preside over trials by the consent of the parties. Judge Bredar has the reputation of being a good trial judge and of having skill in mediating disputes between the parties to litigation.

Neither of these nominees are particularly controversial, but that does not mean they will be quickly confirmed. According to the Baltimore Sun's Paul West, there are 23 other judicial nominees in line for a vote before Hollander and Bredar, and the recent nomination of Elena Kagan to the U.S. Supreme Court is expected to delay the process further. There may not be a vote until late fall.

I think that sucks. I understand, but do not really approve of, the intensely political nature of appointments and confirmations for federal appellate courts. Those courts make broad rules that will affect many cases, and may alter the development of our rule of law. But these delays and investigations into nominees for federal trial courts are just stupid. U.S. District Court judges simply direct traffic at the intersection of facts and law. I don't mean to minimize the great responsibility they have, but they do not have a far-reaching effect on the development of law and public policy. The Senate should immediately develop a streamlined process for the confirmation of trial court judges. If they are qualified, they go on the bench. This will minimize delays, lessen crowded dockets, and promote the administration of justice.

A few of the legal assistants in our office are taking college classes in paralegal studies. The other day at an office lunch they were telling me about the coursework in their legal research and writing class. The students are taught to do legal research the old-fashioned way, with (gasp!) books. That is also how I learned to do legal research back in the dark ages (late 90's).

It's funny. I do the overhwelming bulk of my research online now. I can't imagine Shepardizing a case using a book. I don't even remember how.

But some things I think are a lot quicker and easier with a book, like looking up a Maryland statute. If I know what I am looking for I can flip right to it more quickly than I can open Explorer and search. Plus, it helps to be able to browse the sections immediately before and after for related material. There are also a few reference books that I use regularly, like Pleading Causes of Action (Sandler & Archibald) and Maryland Rules Commentary (Neimayer & Schuett). Nearly everything else I do online.

Back in the day, online research was pay-per-minute or pay-by-search, and conducted over slow dial-up connections. Now flat-rate pricing and super-fast broadband have made online research much more accessible. I can do more research more quickly this way. I can do better research too, because I can access materials that would not be found in most law libraries.

I guess knowing how to do research the old way is a good foundation for learning, but I can't say that I would like to go back. I guess it was possible to practice law in the days before cell phones too, but I can't say that I would want to give it a try.

I often wonder what (or if) other lawyers are thinking. Here is an opinion from the Court of Appeals of Maryland reviewing the rules aplicable to holding a lawyer in direct criminal contempt of court.

This arises out of a criminal case for driving without a license. We don't handle criminal cases at Miller & Zois, but the lesson to be learned here doesn't have much to do with the facts of the underlying case. It is enough to observe that the defense attorney got into a disagreement wit the the trial judge about a procedural aspect of the case's disposition. He protected his record about the disagreement, and was overruled. Then, the defense lawyer just walked out before the judge had even finished ruling. The court issued an order holding the lawyer in contempt.

The lawyer appealed to the Circuit Court, which remanded the case back to the District Court because the trial judge's initial order of contempt did not comply with the fairly complicated and little-known procedural rules governing the imposition of sanctions for direct criminal contempt. The District Court judge then entered a revised order clarifying the original one, and still holding the lawyer in contempt. The lawyer appealed again to the Circuit Court, which this time affirmed the contempt order. The lawyer then appealed again, with the case ultimatley winding up in the Court of Appeals.

The Court of Appeals overruled the trial court because the court was allowed to enter a revised order of contempt on remand from the circuit court. The appellate court said basically, that a trial court only gets one chance to get a direct crimnal contempt right, and that if not, the contempt order must be vacated.

There was a vigorous three-judge dissent from Judges Murphy, Battaglia and Barbera. The basis for the dissent was basically that the courts have a strong enough interest in protecting the orderly administration of justice that they ought not to be prevented from entering and enforcing a contempt order just because of a procedural defect in the order that could be remedied with a revised order. I think the killer factor for the dissenting judges was that this lawyer disrespectfully walked out of the room while the judge was talking.

I agree with the dissent. I don't care what the reason is. You can't just decide you don't like a judge's ruling and walk out. That's disrespectful in any setting, even more so in the context of an officer of the court interfering with the administration of justice. Plus, I don't see what it does for your client in terms of advocacy. The way to handle an adverse ruling, even (or especially) one you vehemently disagree with, is to make your objection, protect your record, and go on to advocate for your client as best you can. If the trial judge was wrong, you can correct it on appeal. Allowing lawyers to do what happened here fosters disrespect for the judicial system and undermines public confidence in the law and the legal profession.

I think the Court of Appeals made the wrong move in not allowing this conduct to be sanctioned as contempt based on a procedural defect in the trial court's original order. This illustrates why I would not be a good choice as a trial judge. Because if it were me, and a lawyer walked out of my courtroom while I was talking to him, he would be appealing to the Court of Appeals from his cell at the detention center.

I wonder if this is going to wind up as an Attorney Grievance matter, regardless of the ruling in the contempt issue. I would think so, because the ethical rules (for example, MLRPC 3.5(a)(1), which prohibits a lawyer engaging in conduct intended to disrupt a tribunal) apply regardless of the availablility of a criminal sanction for contempt. I will be shocked if the Court of Appeals just lets this slide.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases. Rod Gaston was trial counsel in Hornage; I am trial counsel in Holthus, and I was privileged to brief and argue both cases in the appellate court.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.

Continue reading "Appellate Opinion On Expert Witness Financial Bias" »

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

The comments to the Snyder story support him fully, and are appalled that he now has to pay costs. There is no mention of the amount of the verdict, and nobody called him greedy, or his case frivolous, even though he sued essentially because his feelings were hurt at a very emotionally sensitive time.

Why do people think one of these cases is frivolous and not the other? Death case= frivolous. Hurt feelings case= not frivolous. I guess frivolity is in the eye of the beholder.

Don’t misunderstand me. I don’t think either of these cases is frivolous. But there is an incredible amount of hypocrisy in calling one case frivolous but not the other, simply because one case is wrapped in the flag.

Maybe Georgia hates plaintiffs less than I thought.

They have a "tort reform" law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that "the right to a trial by jury shall remain inviolate." The Georgia Supreme Court recently held the cap to be unconstitutional, stating that "[t]he very existence of the caps, in any amount, is violative of the right to trial by jury." It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.

But I don't practice law in Georgia. I am stuck here in Maryland, wishing that the Court of Appeals of Maryland had shown the same courage as the Georgia Supreme Court. But alas, the Court of Appeals of Maryland considered the exact same constitutional argument, and rejected it in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1990). Our court defied logic, and held that as long as the jury determines the plaintiff's damages, the right to a jury trial is not impaired when a statute arbitrarily reduces the jury's award to a predetermined amount having nothing to do with the damages in the case.

I swear, I am not making this up. This is what the Court of Appeals of Maryland said in Edmonds:

"Section 11-108 fully preserves the right of having a jury resolve the factual issues with regard to the amount of noneconomic damages. Neither the $350,000 limit on recovery nor the provision that the jury shall not be informed of the limit, interferes with the jury's proper role and its ability to resolve the factual issues which are pertinent to the cause of action."

Basically, as long as the jury determines the damages, the Court of Appeals says that it is irrelevant that the jury's verdict will be arbitrarily ignored, and it is irrelevant that they will not be told this is going to happen.

It isn't just me thinking the Maryland ruling is illogical and legally unsupported. The Georgia Supreme Court considered the Court of Appeals' holding in Edmonds and called it "unpersuasive reasoning."

But wait! The Court of Appeals of Maryland has a chance to fix its mistake. On April 2, 2010 the court will hear argument in DRD Pool Service, Inc. v. Freed. That case has a constitutional challenge to the non-economic damages cap in non-medical malpractice cases. Hopefully, the court will get it right this time and do away with a law that does a terrible injustice to the most seriously injured Marylanders.

Our system of justice places an immense amount of trust in juries. Juries decide whether people live or die, go to prison or remain free. Why do we no longer trust them to determine damages? Presumably, the right to a jury trial was pretty important since they put it in the very document that provides for our system of government. Hopefully, our courts will restore the will of the jury to its rightful place in our civil justice system.

But I'm not holding my breath.

Here is an article about a recent opinion of the Georgia Supreme Court (that state's equivalent to the Court of Appeals of Maryland) that uphold "tort reform" laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of "tort reform" laws.

The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove "gross negligence" by "clear and convincing" evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

First, it raises the standard of proof from a "more likely than not" standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to "gross negligence", which means a failure to exercise even a slight degree of care.

I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it's all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor's malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.

The Georgia court determined that the legislature's goal of making physicians' malpractice insurance more affordable was a "legitimate legislative purpose." This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.

This rule allows a Georgia ER doctor to to walk up to a family and say something like "I am really sorry. I messed up because I just wasn't paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead." Under Georgia's standard, that doctor is probably not liable for malpractice. If you can't tell what is wrong with that, you have my pity.

I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don't intentionally hurt you.

Many young lawyers are lucky enough to secure a position as a judicial law clerk between law school and beginning to practice. Appellate clerkships are generally considered the most desirable. The main reason that young lawyers want these positions is because they gain valuable experience by working with a sitting judge every day, learning the best ways to persuade a court. Perhaps even more importantly, they also learn what not to do by observing the mistakes made by the lawyers before the court.

Virginia appellate lawyer Jay O’Keefe has been running an occasional feature on his blog with practice tips from a recent judicial clerk from the Supreme Court of Virginia.

Even though I only handle appeals in Maryland state and federal courts, these tips apply to handling appeals in just about every jurisdiction.

For example, there is a tip about the placement and structure of arguments within the brief. Essentially, the advice is to lead with your strongest, most appealing arguments.

I intend to follow this recurring feature in Jay’s blog. I’m sure it will feature lots more helpful tips.

The process of selecting and retaining (or not) judges in Maryland has recently become a bit on the controversial side. Ron Miller recently wrote about how he thinks contested judicial elections are about the dumbest way imaginable to pick judges. This has been news in the leagl community, in part because of an article written by retired Baltimore County Circuit Court Judge Dana Levitz that appeared in the University of Baltimore Law Forum. Judge Levitz was sharply critical of the current process to the extent that it requires judges who are supposed to be unbiased and impartial to run in contested political elections.

The way the judicial selection process works in Maryland is that there are judicial nominating commissions for both appellate and trial courts. These comissions are made up of people selected by the Governor and elected by the state bar.

Individuals who wish to apply for judgeships are vetted and interviewed by the members of the applicable nominating comission. Those determined to be qualified become members of a pool whose names are submitted to the Governor to be considered for appointment to the bench. Once the Governor makes the appointment and the judge is sworn in, the new judge must run for retention in the next general election. This process works basically the same for both trial and appellate judges. Our next general election is in November. So any judges recently appointed by Governor O'Malley need to be ready to hit the ground running on the campaign trail so they are prepared to run in November.

This process is playing out now for applicants to the Court of Special Appeals of Maryland. The way that court is set up, there are seats dedicated to certain geographically determined appellate circuits, as well as "at large" seats. Right now there is a vacancy on the court for the seat dedicated to the Fourth Appellate Circuit, which covers Prince George's County.

The following have been vetted by the nominating commission and have been presented to the Governor for consideration:

Honorable Toni Evon Clarke
Adrienne Morgan Davis
Honorable Melanie Marva Shaw Geter
Honorable Michele Denise Hotten
Mark Kotlarsky
Honorable Thurman Haywood Rhodes
Clarke, Geter & Hotten are sitting judges on the Prince George's County Circuit Court. Rhodes is a judge on the District Court for Prince George's County. Davis and Kotlarsky are private attorneys.

It remains to be seen which candidate will be selected. Or, the Governor may decide that he doesn't like the list and ask that the vacancy be readvertised. It will be interesting to see how the selection process plays out.

As promised, here is the second part of my thoughts on preparing and presenting appellate argument:

SHOW SOME COJONES. You are never arguing to one judge on appeal. Lets say it immediately becomes apparent that a member of the panel hates your argument. They come right after you with hard questions. Don’t back down. You are an advocate. You aren’t getting paid for your ability to show up and agree with the court. Your job is to forcefully and passionately advocate for the result your client needs, in a respectful, logical way. Plus, you do not always know what is going on. Maybe the judge grilling you is the only one on the panel who thinks you are wrong. If they back you down, you may well hurt your case with the silent majority of judges who are watching. Maybe your questioner agrees with you, but the questions are designed to show unsure members of the panel why your argument stands up under duress. You are there to make an argument. Make it.

BE PREPARED TO ADDRESS ADVERSE LAW. Learning and applying the cases that support your argument is easy- especially if you wrote the brief. It is more difficult and equally important (perhaps more) to be able to distinguish the cases your opponent relies on and explain to the court why they should not control the result in your case. There are a few ways to do this. Are the facts substantially different? Are there policy reasons they should not apply? Do they rely upon different substantive law, or was the procedural posture radically different? What I do is I sit down with a yellow pad. I read and highlight the opinion without taking notes. Then I write a detailed summary of the case and its holding. In the margin I make notes on all of the possible ways to distinguish the case. Generally, you will only be concerned with ten or so cases, unless you are arguing something truly complicated. After summarizing all of the cases, I prepare an outline with only my bullet points on how to distinguish each. Now I have an easy cheat sheet that goes in the folder I take to the podium. Even if I draw a blank mentally, a quick glance down has me right back on track.

NO INTERPRETIVE DANCE. You are not in front of a jury, and you are not Jennifer Beals in Flashdance. Moving around and waving your arms does not impress the court, and it can be pretty distracting. You want them to focus on your argument, not how well you approximate the Electric Slide. I tend to be a fidgeter, so I revert back to all those years in Catholic school. When I don’t know what to do with my hands, I fold them in front of me. For a great way to drive this home, get a video of yourself arguing, if one is available. The Maryland Court of Appeals webcasts all oral arguments. I have found watching myself to be very valuable in terms of self-scouting.

KNOW WHAT YOU WANT THE OPINION TO SAY. One member of the court in my last case asked both sides to tell him what we thought the paragraph of the opinion right before the statement of the holding should say. I think this is the essence of what you are there for. By the time of argument, if you do not know the analysis you want the court to apply, and how that analysis applies to your facts, you have messed up big time. All this means is that you should be able to summarize your argument in about a paragraph. In my briefs, normally, I have something very similar to this in my conclusion. Or, if you have briefed it right, the substance of this may be found by reading the section headings like an outline.

SKIP THE INTRO. I do not begin argument by introducing myself, summarizing the facts, explaining who the parties are, or any other preliminary B.S. like that. The court knows who I am. That is why the panel chair just indicated it was my turn by looking at me and saying “O.K., Mr. Bratt?”

I am sure that there are as many ways to do this as there are attorneys practicing appellate litigation. So if anyone has some other ideas, I would love to hear them.

First, check out the Hon. Dennis Sweeney's statement on the Sheila Dixon case. If you take the time to read it, you will find it very enlightening. If I'm wrong, I will refund the purchase price of this blog post.

It is clearly Judge Sweeney's belief that the conviction was not the result of a confused jury, political play, or anything other than the fact that Mayor Dixon did some things that any reasonable person, particularly one with her intelligence and political experience, would know were stupid.

I have seen Judge Sweeney speak (in fact, the topic was professionalism and ethics), know his reputation in the legal community, and have had friends serve as his clerks. He's now retired, because Maryland has an incredibly stupid law requiring judges to step down at age 70, but allowing them to hear cases part-time. In my opinion, all that does is bolster his props as an independent outsider. He's legit. I am accepting his opinion at face value.

Really, this piqued my curiousity because it is an extremely rare insight into the judicial thought process. We rarely get an unvarnished version of what a judge truly thinks about a given case. It is apparent that Judge Sweeney accepted the plea deal because he found that it was in the interest of justice and in the interest of the citizens of Baltimore and the democratic process.

Oh, and he was right to stick up for the jurors. Trial by jury is the essence of democracy. Limiting the right to a jry trial makes sense only if you want to live someplace like China, Cuba, the Soviet Union or Iran. It's not a perfect system, but it beats the alternative handily under any system of measurement you can devise.

Second, if you want to read an appellate opinion that can easily be understood by any layperson, and that also features seamless legal analysis, check out this opinion by the Hon. Charles Moylan. An easy way to spot a Judge Moylan opinion is with a scale. The heavier it is, the more likely it's his. He tends a little to the wordy. But what's great about him is his opinions always have everything you need to fully understand whatever he is discussing. If I am doing research, I love coming across a Moylan opinion because invariably he has collected all of the relevant authority in one place. I'm no criminal lawyer, but I had no trouble understanding the complex Fourth Amendment analysis Judge Moylan is making, and I doubt you will either.

Seriously, tell me it makes sense for this guy to relegated to part time status at age 70. That rule should really be changed.

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.

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.

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.

Today the U.S. Court of Appeals issued its opinion in AES Sparrows Point LNG LLC v. Md. Dept. of the Environment. AES wants to build a liquified natural gas terminal in eastern Baltimore County. To do this, AES needed to get the approval of federal and state regulatory authorities. They obtained the needed federal approval, but were denied by the state. The state's denial was based on the environmental impact of the proposed facility, because it involved deep water dredging, among other reasons. The backstory behind the state's denial is the overwhelming community opposition to the proposed plant. Simply put, the folks who live in eastern Baltimore County did not want this facility because of safety and environmental concerns. They did the smart thing, and complained to their elected officials. It seems that this pressure worked, and the state ultimately concuded the objections were well-founded and denied approval.

AES then went to federal court and sued, trying to force the state to approve their project. The trial court's ruling was appealed to the United States Court of Appeals for the Fourth Circuit.

The appellate court ruled in favor of the state, saying: "For reasons that follow, we uphold Maryland’s denial of AES’s § 401(a)(1) Certification Request on the independent ground that the
dredging required to accommodate the LNG tankers would create additional deep water areas where dissolved oxygen levels would fail to meet Maryland water quality standards." Basically, the court's ruling is that Maryland's reasons for denying approval were not arbitrary or capricious, and therefore the denial should stand.

This is a huge win for the community, which now will not be stuck with a project it didn't want. This also shows how representative democracy works. The community went to their elected representatives, County Executive Jim Smith and Congressman C.A. "Dutch" Ruppersberger, and those officials fought for what their constituents wanted. Agree or disagree, these guys did their jobs- sticking up for the people who elected them.

AES really can't do much about this opinion. Its options are to find a way to comply with the state's environmental requirements, or ask the U.S. Supreme Court to hear the case. It is very unlikely that the Supreme Court would take the case. Last year, the Supreme Court received over 8,200 of these requests; the court agreed to hear less than two percent of those cases. Moreover, the 4th Circuit ruled unanimously and is generally regarded as the most conservative appellate circuit in the country. It is likely that the legal aspect of this dispute ends here, in a victory for the state.

Via Tom Goldstein of SCOTUS Blog: because the Supreme Court nearly always allows amicus briefs, when a petition for permission to file an amicus brief is filed, it looks amateurish to object.

Although I do not travel in the rariefied circles Mr. Goldstein does, I think his advice holds true for most appellate courts. I have been involved in several amicus briefs to the Court of Appeals of Maryland, and I do not recall the court rejecting a request to file an amicus brief. Since the court generally accepts interested parties' requests to be heard, there is very little to be gained from objecting.

Friday, the Court of Appeals of Maryland issued its opinion in an attorney discipline case. The Court reaffirmed what we all know, which is that commingling personal and client assets in an attorney trust account is likely to get you disbarred. So for my lawyer readers, don't do that.

The facts are interesting though. It seems that the lawyer was accused of sexually molesting one of his young daughter's playmates. The opinion doesn't say so, but it looks like the lawyer was not convicted criminally. So he does something that only a truly innocent or really stupid person would do- he sues the purported victim's parents for defaming him. In turn, they do something that a really smart person (or a person getting excellent legal advice from Andrew D. Freeman, Esq.) would do- they counterclaimed for battery on behalf of their daughter. The Baltimore County civil jury agreed with the parents, granting judgment against the lawyer in the amount of $386,350 in compensatory damages and $75,000 in punitive damages.

The disbarment proceeding centered upon the lawyer's financial misconduct in trying to conceal assets from the parents' efforts to collect the judgment. Nothing was really said by the Court of Appeals about the jury's finding of liability for improprly touching the girl. The opinion gave me the impression that if the lawyer had simply paid the judgment, he would still be practicing.

I wonder if this is because of the standard of proof? In Maryland, attorney misconduct must be proven by clear and convincing evidence. However, for the civil judgment the parents obtained, the standard of proof is a preponderance of the evidence. So the only way that the abuse could have been before the Court of Appeals would be if there had been a "trial within a trial" to allow the court to rule upon the abuse allegations under a "clear and convincing" standard. To be clear, this is my own analysis; it's not in the opinion.

I bet the Court was glad to have an iron-clad reason to disbar without having to wade into the abuse allegations. I think you can see the court didn't want to go there, since the only mention is about one line explaining where the judgment against the lawyer came from.

Yesterday I received an order from the Court of Appeals of Maryland scheduling oral argument in two cases I am handling. Really, it is one argument, but relates to two cases that have been consolidated on appeal.

The first case is a case my colleague Rod Gaston had for trial in the Circuit Court for Anne Arundel County. The defendants named a neurosurgeon as an expert witness. Rod obtained an order compelling him to produce certain financial records in an effort to find out how much he is paid for testifying in general, and for the defense attorneys, defense law firms and insurance companies involved in the case specifically. The doctor has appealed that order.

The second case is a truck accident case I am handling in the Circuit Court for Montgomery County. That case has been stayed in the trial court pending the outcome of the appeal. There, the trial court entered a similar order, only with a strong confidentiality provision protecting the privacy of the records to be produced. The doctor has appealed that order as well.

It's the same doctor in both cases. The evidence is clear that he is a "professional witness." We also have him as a retained defense medical expert in a few other cases we have in the office. He has been ordered to produce financial information in other cases as well, and I understand more appeals will be forthcoming. It appears to be the doctor's position that all of the judges in various counties across Maryland who have ordered him to produce this material are wrong, and have abused their judicial discretion.

The issue before the Court of Appeals is whether the trial courts' orders were an abuse of discretion under the Maryland Rules and the relevant case law, including Wrobleski v. DeLara.

These cases may have broad implications for how expert witness bias discovery is conducted in Maryland auto and truck accident cases. Miller & Zois believe that juries are entitled to know if the professional witnesses put before them have a financial interest in testifying, or in testifying for any particular lawyers, firms or insurance companies. And what the extent of that financial interest is.

The Court's opinion in these cases is likely to significantly affect plaintiffs' lawyers' ability to find evidence of bias so that juries have the facts they need to determine whether they should believe the witnesses put before them.

So if you are interested, circle 1/12 on your calendar. The argument will be broadcast live on the web from the Maryland Judiciary website.