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.

"Amy" was victimized by an uncle who used her as the star of child pornography. She has hired an attorney, James L. Marsh, who has had her evaluated, and has obtained expert reports showing the effects of the abuse on her, and documenting how much it has cost her in counseling, diminished wages, and lawyer fees. The total is about 3.4 million dollars.

Mr. Marsh has taken the position that every person convicted of posessing one of the images of Amy is jointly and severally liable for her damages. He has made hundreds of court filings seeking restitution on this basis. Many judges have agreed, although some have criticized this approach, arguing that the link between posessing a single image and the damages claimed is too tenuous.

Although many of these perverts are incarcerated and have little or no assets, others are comparatively well off. In the first year of this strategy, Mr. Marsh has collected over $170,000 for Amy. He is pledging 10% of his attorney's fees to the Children's Law Center.

Mr. Marsh's website states that he is a member of the American Trial Lawyers Association (now the American Association for Justice), a group I am proud to be a member of. We are the greedy trial lawyers everyone is telling you are ruining America. What this lawyer is doing is in the best tradition of advocating for justice on behalf of an innocent victim.

Mr. Marsh, I salute you.

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

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

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

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

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.

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.

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

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.

John Nagle is a partner in Bodie/Nagle, which is one of the largest law firms in Baltimore County. He has the reputation of being a smart guy with a great deal of litigation experience. He has worked mostly on the defense side of the "v." A layperson might think that I would prefer judicial appointees who come from a more plaintiff-oriented background. They would be wrong. I want judges who are fair, smart, openminded, and who will allow me to educate them on the law if they don't know it already. From all accounts, Mr. Nagle will be that type of judge. He is set to be sworn in on January 5.

The other appointee, Judge Brobst (who was sworn in yesterday) is a long-time Baltimore County prosecutor. According to a profile published in the Sun, she has prosecuted several high-profile cases, including Kirk Bloodsworth. Bloodsworth was sentenced to death, only to be freed nearly a decade later when DNA evidence not available at the time of his trial exonerated him. I imagine the experience of securing a death sentence as a prosecutor and later finding out that an innocent man was convicted (thankfully before his execution) has made Judge Brobst keenly aware of the magnitude of the decisions made by Maryland courts. Maryland circuit court judges hear all kinds of cases, so it is likely that Judge Brobst will hear civil cases as well as criminal. I don't see this as a big deal- I have tried many civil cases before judges who are former prosecutors. Generally they have tried a ton of cases before going on the bench, and excel at letting the lawyers do their thing. I would almost always prefer to try my case in front of a judge who has significant trial experience because they know what it is like to be the person standing in front of the jury, and run the case accordingly. To they extent they lack substantive knowledge of the particular law that applies to the case, being prepared to educate the Court is part of an advocate's job.

I do not know Judge Brobst personally, but two of the commentators in the Sun article are lawyers I respect greatly: Baltimore County State's Attorney Scott Shellenberger and Maryland State Bar Association President-Elect Henry Dugan. Scott and I worked together many years ago with Peter Angelos's firm, and Henry is involved in the Maryland Association for Justice, where I am a board member. Both of these gentlemen are fine trial lawyers, and I take their praise of Judge Brobst as a significant endorsement.

Both of these new judicial appointments are welcomed in Baltimore County, where the caseloads have been growing, and being down a few judges has impacted the court's ability to move the docket. Initally, my opinion is that these are two solid appointments that will beneift the Court, the parties who appear before it, and the citizens of Baltimore County.

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.

If this woman had come to me for legal representation, the first thing I would have done would be to find the most expert family lawyer I could to handle the custody and protective order case. I have handled protective order hearings before, but there are people who do that for a living, more expertly than I could. I wonder if the family lawyer representing her will associate with experienced co-counsel for the tort case? I’m curious to see how this turns out, but based on what I have seen so far, I hope Ms. Williams has some pretty compelling evidence or she could have a tough fight on her hands. Too bad there's no grounds to transfer venue to Pittsburgh.

WhiteCoat advocates a loser-pays system in medical malpractice cases. Sure. I’ll go along with that, if it comes with automatic liability for the physician if the patient is not cured. After all, it’s fair for he who does not succeed to pay, right? Why don’t we all agree that doctors know more about medicine than lawyers, and lawyers know more about the law than doctors?

Paul Luvera has some tips for cross-examining Defense Medical Exam doctors. Paul calls this a basic outline, which it is. Miller & Zois lawyers use a much more detailed approach, but Paul provides an outstanding basic foundation for the cross.

I had never heard of Moe Levine until I got an ad for a book about him from the American Association for Justice. Then I found a closing he gave in a case about a young woman who broke her arm in a car accident. This is an outstanding effort in a case all of us have tried at least once. He truly does a wonderful job of personalizing his client’s non-economic damages in a case where there is a real, but not catastrophic, injury. Thanks to Howard Nations for providing this wonderful resource.

Often, people speak in a very non-literal way about time. A minute is seen as a very short period of time by most people. A minute is about 1/1400th of a day. When a witness says something took “about a minute” they very rarely mean that it took 60 seconds. More frequently, they mean “not very long.”

This can be extremely important in intersection cases. It may arise in the context of how long the plaintiff or defendant had to see and react to oncoming traffic. Or where a vehicle was when a light changed, or how long it took for a vehicle to travel from point A to point B.

Witnesses never realize that when they are asked to estimate time, it is rarely simply because the questioner wants to know about how long something took. You see, time/speed/distance is really just a three-sided math problem. If you know any two elements, finding the third is a simple calculation.