Baltimore Injury Lawyer Blog

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.

Today's Baltimore Sun reports that Judge Davis has been confirmed to a seat on the U.S. Court of Appeals for the 4th Circuit. Hopefully we will see the Senate act to end the shameful delays in judicial appointments.

He's a good judge. There is no good reason he wasn't immediately confirmed. Hopefully the Senate will move quickly to confirm the remaining three nominees to that court, fully staffing it for the first time in a very long time.

Last week, I argued an appeal in a truck accident case. I was in the Court of Special Appeals of Maryland, which is our state's intermediate appellate court. My case was fourth in line on the day's docket. That meant I got to (was forced to) sit through the argument on the cases ahead of mine.

The other arguments ran the gamut from abominable to excellent, and featured a range of attorneys from young lawyers to experienced appellate advocates.

One thing I saw some of these other lawyers do was to address the questioning judges by name. For example, "Great question, Judge Hollander." Actually, my example violates two rules of appellate argument. Never tell a judge they asked a great question. Presumably, they also thought it was a good question, or they would have remained silent.

But my real beef here is that I think it is never appropriate to call a judge by name in a courtroom. My practice is to refer to all members of the court as "Your Honor" if we are in a setting where I am being a lawyer and they are being a judge. To do otherwise seems disrespectful, and could be taken as implying a personal relationship that does not exist.

When I ran into a member of my appellate panel in the lobby prior to the start to the docket, I found "Good morning, Judge Pierson" totally appropriate. When I am in a courtroom and he is on the bench, that is "Good morning, Your Honor.

I happen to know the most recent past clerk for one on the judges on my panel. Afterwards I emailed her about this issue. She actually said she even called her judge "Your Honor" in chambers.

Maybe I am wrong about this, but I don't think so. At a minimum, sticking with the formal "Your Honor" is never going to get me in trouble. And it is also great if you happen to be bad with names.