Appeals

Professionalism on Appeal


One of the many hats I wear at Miller & Zois is that of our in-office appellate specialist. What that really means is that I handle all of our law firm’s personal injury cases that wind up being appealed, and that I accept referrals (from other lawyers only) to handle civil appeals of all types.

One thing I see over and over is briefs from the other side that make the ill-advised choice to attack the trial judge or trial counsel. And I don’t mean with reasoned legal arguments, I mean things that are over-the-top, like allegations that the judge was biased, or ad hominem attacks on the opposing party or their counsel. There are a lot of things wrong with doing that, but the two main ones are 1) it’s unprofessional and 2) making yourself look like a jackass isn’t very persuasive.

If you handle appeals on a regular basis, you should take a look at “Professionalism On Appeal: The Good, The Bad and the Ugly”, an article by Howard J. Bashman, a Philadelphia-area appellate specialist. I think he sums it up nicely by saying: “Indeed, expressing animosity toward opposing counsel on appeal, or toward the trial judge, usually proves to be counterproductive rather than an effective strategy for victory.”

Take a look at his article. I think it’s a refreshing take on the way appellate litigation should be practiced.

Some ways I use Apple’s iPad in my personal injury practice

Several months ago, Miller & Zois issued iPads to all of our attorneys. By now mine has become indispensable for a wide variety of my litigation tasks. There are some things that I will never do the “old fashioned way” again. So I thought I would share a few of the ways this new technology has made my life easier.

Motions hearings/Pre-trial conferences: I rarely take a paper file to simple motions hearings or Pre-trial conferences. I will usually bring a courtesy copy of the Pre-trial statement or the motion at issue for the Court, just in case it hasn’t made it into the file. Otherwise, the only paper I bring is a legal pad. For a motions hearing, I use Dropbox to send .pdf copies of the motions, responses and replies, the cited case law, and my argument outline directly to my iPad. I have everything I could need available to me in an instant, without fumbling through a file jacket or flipping through a long opinion to find a particular passage. This makes my argument quicker and more organized, and gives me an advantage when the Court has a question about something that I may not know off the top of my head- I can generally find whatever it is and be able to respond more quickly than if I were using a traditional file.

Depositions: I do these in a very similar fashion to a motions hearing. When I do my deposition prep, I load any pleadings, deposition transcripts, medical records or produced documents onto the iPad (again, using Dropbox). My deposition outline goes on there too. It’s really a great way to carry 1500 pages of Bates-stamped medical records without lugging a long a 20 pound trial case. The only other thing I take is a leather presentation folder with a legal pad in it. Also in the folder are pre-printed copies of any photos or documents that I plan to use as exhibits.

Really, the only drawback I have found is when shortly before or during the deposition I realize that there is a document that I will need as an exhibit that wasn’t prepared in advance. On those few occasions, it has been easy to have my paralegal fax over a copy, or to email a copy myself to whichever attorney is hosting the deposition and ask them to print a copy. So far it this has happened less than a handful of times and hasn’t caused any issues.

Legal research and writing: iPads are great for viewing and working with documents. However, I do not find mine terribly useful for creating documents, like when I have to write a motion, motion response, or an appellate brief. For drafting those, I still use my trusty old desktop PC and laptop.

But that doesn’t mean that I don’t find my iPad invaluable to my writing process. For example, I no longer use paper copies of cases, statutes or treatises while I write. It used to be that when I did my legal research I would print paper copies of the relevant cases, read, highlight and annotate them, and keep them in a pile next to me, referring, citing and quoting them as needed. Then they would all be binder-clipped to a copy of the motion or brief they were in and stowed away in the file, ready to be used if the need arose at argument time.

Now, I skip all of that. I do just about all of my research electronically on Lexis. One of the Lexis features that I like best allows you to email yourself a .pdf copy of the case, instead of printing it out. Then the electronic copy is saved to my Dropbox and synced to my iPad. Once that’s done, I use a program called GoodReader to highlight and annotate them. I even have an iPad stand that sits on my desk (it kind of looks like an old fashioned typing stand) so that I can page through the case law directly on the device as I write. This saves me time several different ways, since I don’t have to wait for printing, don’t have to keep track of a pile of paper, and I automatically have all of the cases saved electronically, so it’s easy to save them along with whatever motion or brief they go with. Then, as I wrote above, when I get to the hearing or argument, I have all of the pleadings filed by both sides, and the cases cited in those pleadings literally at my fingertips for use in a moment’s notice.

Client intake/prep/meetings: I have found the iPad to be a tool that really impresses clients. Part of that is the “hey, neat gadget” factor, but sometimes it proves to be really useful.

For example, at initial client meetings I often pull up the scene of the auto accident or other occurrence in real time on Google Earth. That way the client can directly and accurately explain the layout of the road, where they were when they first saw the other car, the point of impact, etc. It has also been useful on a few occasions to prevent me from taking a case that I shouldn’t have. For example, by showing me the stop sign my prospective client had that they “forgot” to tell me about.

Since the iPad also has a pretty good built-in camera, I also use it to take photos of injuries and/or scars, as well as head shots of potential witnesses for me use to identify them to the jury in my opening statement.

Anything out of the office: All of my email from my Miller & Zois account also goes wirelessly to my iPad. This is invaluable when emergencies arise, since I can quickly respond by email when I am doing something like sitting defending a deposition. It’s also great for emailing my paralegal “to do’s” as I think of them, rather than having the chance to wait and forget.

Now, don’t get me wrong- there are some litigation tasks that I still do the same way I did in the dark ages of the 1990’s. Maybe I will try to fit them into another post in the near future. Also, there will most likely be another post coming up about the various ways an iPad can be useful at trial. So keep coming back to the blog!

Another appellate win for M&Z!

Yesterday the Court of Special Appeals of Maryland released this opinion reversing the Circuit Court for Baltimore County’s entry of summary judgment against one of our clients. The case involves the application of Insurance Article §19-511 in settling an underinsured motorist claim.

Ron Miller offers some preliminary analysis here. I’m not going to steal Ron’s thunder by getting into the specifics myself. I will say that this opinion doesn’t mean that the case is over, there’s still a long way to go. There may be a petition for a writ of certiorari asking the Court of Appeals of Maryland to hear the case, and even if there is no petition or a petition is denied, there are issues to be addressed on remand by the trial court.

But for the moment at least, this is a huge win for our badly injured client. Rod Gaston did a great job setting up the issue in the trial court, and I handled the case on appeal. Our law firm is best known for our trial practice, but we also take a lot of pride in the results we get for our clients on appeal. It matters to us that we are on the front lines of developing the body of law that applies to Maryland personal injury cases because that helps not just our clients, but injury victims all over the state.

Waiting for an Appellate Opinion?

If you read this blog regularly, you know that appellate litigation is part of my practice here at Miller & Zois. I handle all of the appeals that arise out of our firm’s trial practice, and I also accept appellate referrals from other attorneys.

One of the things that I get asked a lot by our injury clients and by lawyers who don’t regularly handle appeals is “How long will it take before an opinion is issued?” Any appellate lawyers who are reading this know that the only answer to that question is “I don’t know.”

Sometimes opinions are issued quickly, sometimes not. In Maryland’s state appellate courts, the fastest I have gotten an opinion was about 90 days after oral argument. The longest it has taken was nearly 14 months after oral argument. As far as I know, there aren’t any Maryland rules or statutes governing how quickly our appellate courts must resolve cases.

There are two things that have me thinking about this.The first is that I argued an appeal in the Court of Special Appeals on March 9, and I am eagerly awaiting the opinion. Every morning when I come in to the office, I check the Maryland Judiciary website to see if the opinion has been released. Not having the opinion by now doesn’t really surprise me, since the Court of Special Appeals is a very busy court. In 2010 (the most recent year statistics are available) <ahref=”http://www.courts.state.md.us/publications/annualreport/reports/2010/annualreport.pdf”> it received 1,980 new case filings, and resolved 2,140 cases. Considering that the court had 13 judges, including the Chief Judge, that’s a staggering amount of work- 164 cases per judge! I think part of the reason our intermediate appellate court is so busy is that there is a right to an appeal in just about every criminal case, and most people who are convicted tend to exercise that right regardless of the likelihood of success.

The second thing was an article in the Daily Record about a Court of Appeals opinion that came out in the last few days indefinitely suspending a Maryland attorney. The article pointed out that the Court of Appeals’ opinion was released more than four years after the court heard argument in the case. Oral argument took place on June 9, 2008. The opinion was released June 22, 2012. The reason for the delay wasn’t addressed in the opinion. The Court of Appeals is a busy court too, but I can’t imagine a four-year delay is just because of a busy caseload. I have to think that somebody must have messed up somehow.

I still don’t know how long an appeal is supposed to take- I’m just happy that none of mine have taken four years! From now on when I get asked how long it will take to get an opinion on appeal, I will answer that I expect it to take somewhere between 90 days and four years. Surely that will be an acceptable answer. Right?

Waiting for an Appellate Opinion?

If you read this blog regularly, you know that appellate litigation is part of my practice here at Miller & Zois. I handle all of the appeals that arise out of our firm’s trial practice, and I also accept appellate referrals from other attorneys.

One of the things that I get asked a lot by our injury clients and by lawyers who don’t regularly handle appeals is “How long will it take before an opinion is issued?” Any appellate lawyers reading this know that the only answer to that question is “I don’t know.” Sometimes opinions are issued quickly, sometimes not. In Maryland’s state appellate courts, the fastest I have gotten an opinion was about 90 days after oral argument. The longest it has taken was nearly 14 months after oral argument. As far as I know, there aren’t any Maryland rules or statutes governing how quickly our appellate courts must resolve cases.

There are two things that have me thinking about this. The first is that I argued an appeal in the Court of Special Appeals on March 9, and I am eagerly awaiting the opinion. Every morning when I come in to the office, I check the Maryland Judiciary website to see if the opinion has been released. Not having the opinion by now doesn’t really surprise me, since the Court of Special Appeals is a very busy court. In 2010 (the most recent year statistics are available) it received 1,980 new case filings, and resolved 2,140 cases. Considering that the court had 13 judges, including the Chief Judge, that’s a staggering amount of work- 164 cases per judge! I think part of the reason our intermediate appellate court is so busy is that there is a right to an appeal in just about every criminal case, and most people who are convicted tend to exercise that right regardless of the chance of success.

The second thing was an article in the Daily Record about a Court of Appeals opinion that came out in the last few days indefinitely suspending a Maryland attorney. The article pointed out that the Court of Appeals’ opinion was released more than four years after the court heard argument in the case. Oral argument took place on June 9, 2008. The opinion was released June 22, 2012. The reason for the delay wasn’t addressed in the opinion. The Court of Appeals is a busy court too, but I can’t imagine a four-year delay is just because of a busy caseload. I have to think that somebody must have messed up somehow.

I still don’t know how long an appeal is supposed to take- I’m just happy that none of mine have taken four years! From now on when I get asked how long it will take to get an opinion on appeal, I will answer that I expect it to take somewhere between 90 days and four years. Surely that will be an acceptable answer. Right?

Is Being A Bad Lawyer An Ethical Violation?

The Legal Profession Blog has a post linking to a lawyer discipline case from New York where an attorney was suspended for two years after being sanctioned by the U.S. Court of Appeals for the Second Circuit. Even after the two years is up, he can only practice again after the entry of a court order allowing it.

This is a pretty serious sanction. What did he do? Steal from a client? Miss a filing deadline? Get a criminal conviction? Was he a tax cheat? Nope. He got suspended for being a terrible lawyer. The court noted that on multiple occasions he had submitted briefs of “shockingly poor quality.” Things like getting the names of his clients wrong, including irrelevant boilerplate, referencing evidence that was never submitted, and filing the work of a paralegal without reviewing it.

I am so happy to see a court take a stand like this. My practice is 100% litigation, and you would not believe the astonishingly poor quality of some of the written material I see submitted to both trial and appellate courts. I’m not talking about proofreading or citation errors. Everybody makes a mistake sometimes. I mean stuff so appalling that it is clear that no attempt was made to edit or even read it before filing.

I have a case now where opposing counsel has filed papers with the court certifying that pleadings and discovery were served on me three weeks before the date they were actually mailed to me. When I got them, they were unsigned and turned out to be mostly gibberish. The best part, and I swear to God I am not making this up, is that they were printed in the Comic Sans typeface. I asked twice, in writing, for the filing to be corrected so the court knew the correct dates I received the material. Nothing. It’s the most astonishing thing I’ve seen in 14 years practicing law. I’m now awaiting a ruling on my second motion for sanctions.

I wish courts were more active in policing this kind of thing. But the reality is that most of the time nothing gets done about it unless the behavior is particularly egregious or it is repeated often enough that eventually a judge ends up getting really mad.

A Few Quick Hits

Here are just a few things from around the web that I thought were interesting:
THR, Esq. comments on Teller, of Penn & Teller fame suing another magician for ripping off one of his tricks. The best part of the whole thing is the illustration Teller provided when he copyrighted the trick. Awesome. I’ve seen Penn & Teller, and they rule. To show how they appreciate the audience, after every show they wait in the lobby and meet everyone, sign autographs and pose for pictures. It’s worth every penny of your entertainment dollar. Anyway, they could make that dollar disappear whether you liked it or not, if they wanted to. Just be glad they let you see the show instead.

Can an undocumented immigrant be admitted to the Florida Bar? Everyone’s knee-jerk reaction is probably to say no, but here’s the thing: there’s no rule against it.

Another vote in favor of cooperation among members of the bar- when opposing counsel asks for an extension, think about saying yes. They might get appointed to the bench engaging discussion of an article on Ten Questions You Must Be Prepared to Answer Before Oral Argument, with a hat tip to the BILB!

George Zimmerman’s lawyers have asked the judge to recuse herself. Apparently, her husband is partners with an attorney who was approached to represent Zimmerman, declined, referred him to his current lawyer, and now has been hired by CNN to comment on the case. I don’t know if that creates the quote, unquote “apppearance of impropriety,” but I do know that if I were the judge, I’d be happy to kick that traveling circus down the road. I wonder how Lance Ito’s doing now?

Another Good Tip for Structuring an Apellate Brief

One thing I always try to do when I am writing an appellate brief to to use the Table of Contents as an outline of the argument. If you can read the TOC and you don’t know my basic argument by the time you’re finished, I’ve failed. I use each section heading as a summary of the argument and each sub-heading as a summary of the main points in support. My thinking has always been that appellate courts are busy, and that making your argument concise, accessible and easy to understand is a great way to make it easy for the court to rule in your favor. It’s just good advocacy.

Jay O’Keefe’s Virginia appellate blog De Novo has a summary of a talk at The Greenbrier Resort given by Justice LeRoy F. Millette, Jr. of the Supreme Court of Virginia. Maryland and New York are the only states I know of where the highest court is called the Court of Appeals, and where its members are judges not justices. Maybe there are others, I’ve never really checked.

But anyway, Justice Millette says that a brief should be organized in “clear, outline format.” Jay agrees, adding that “it is helpful to include descriptive subject headings that reflect the outline organization of the brief.” Not only is this approach helpful from an advocacy standpoint, but it also allows nearly instant reference to any point made in the brief or oral argument.

Also, I love Jay’s description of The Greenbrier: “seizure-inducing, Technicolor grandeur.” I’ve stayed there, and it looked like Laura Ashley threw up in my room. It is located in the beautiful West Virginia mountains. Interestingly, in the 1950’s it had a giant bunker underneath where the U.S. Congress would be evacuated in the event of a nuclear attack. Now, they offer tours of the bunker. If I went back there, it would be to go see that.

Appellate Mediation?

In the past, I have written about alternative dispute resolution as a means for resolving personal injury cases before trial. Well, there is a new article out in the Maryland Bar Journal about how mediation is being used to resolve cases on appeal in the Court of Special Appeals.
I never thought that mediation would be useful on appeal, because an appeal by its very nature involves two parties with entrenched positions on opposite sides of a legal issue. I guess I was wrong, because according to the article, 69% of the cases that go through the Court’s appellate mediation program settle.
I have only had one of my appeals go through the mediation program. My case didn’t settle, but I thought it was a useful process. They use two mediators, a retired judge and an attorney mediator from the Court’s mediation office. In my case, they were both well prepared and up-to-speed on the law involved. The process wasn’t the reason my case didn’t settle. But the plus side is that now I et to argue the appeal, which I really enjoy doing!

When Justice Thomas Speaks, He Has Something to Say

I don’t write much in this space about Supreme Court, since this blog is usually dedicated to topics of interest in personal injury litigation. Even though I have an appellate practice, I don’t expect to find myself preparing an argument in the SCOTUS anytime soon. I imagine I will end my legal career in the 99.995% of all attorneys who never make it to the Supreme Court.

Even so, I usually pay at least cursory attention to the goings-on down on First Street, because I find it interesting as an appellate lawyer and because I try to be a well-informed citizen. So I am aware of Clarence Thomas’ well-established reputation as the Court’s silent man, and that people draw varying inferences from his silence. Some think that it is a sign of closed-mindedness, an unwillingness to be persuaded, or an ideological entrenchedness. Others see it as a sign of indifference. Still others see it as a mask for intellectual weakness (an inference I find ridiculous). Even though I think it is safe to say that Justice Thomas and I are at opposite ends of the ideological spectrum, I find him to be one of the most interesting justices.

Here is a great article from The Huffington Post about one of the few times Justice Thomas has engaged with counsel at argument. In 2002, he jumped in on the side of the State of Virginia in a case testing the constitutionality of a state law making cross-burning a criminal offense. As the Court’s only African-American and a man who grew up in segregated Savannah, Georgia, he made the point that cross-burning isn’t expression protected by the 1st Amendment, but instead a hateful act of terror and intimidation.

The Court, of course, struck down the statute. The article quotes Justice Thomas’ dissent, stating: “Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

Although I am sure it wasn’t his intent, this illustrates neatly for me why a diversity of experience and viewpoint is a very good thing for the Court. Clearly Justice Thomas saw this issue in a different, more personal way than another person would. Just one more reminder that it’s nearly always a bad idea to pigeonhole a justice, or anyone else.