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Court of Special Appeals tips straight from the chief judge.

Byline: Special to The Daily Record

The following is an excerpt of a conversation with Court of Special Appeals Chief Judge Patrick L. Woodward from "Appellate Practice for the Maryland Lawyer: State and Federal, Fifth Edition," edited by Paul Mark Sandler, Andrew D. Levy and Steven M. Klepper and published by the Maryland State Bar Association. It has been edited for space.

What are some of the challenges you confront as chief judge?

Initially, I was confronted with the challenge of learning the responsibilities of the chief Judge. There is no training manual. Fortunately, I received the wise counsel of my predecessor, former Chief Judge Peter Krauser and the able assistance of an excellent court staff. Ongoing challenges include ensuring (1) timely, well-written, and legally sound opinions; (2) continued development of a high quality body of jurisprudence; and (3) effective response to the concerns of the bar and the public.

How many appeals does the Court of Special Appeals of Maryland receive every year?

The Court of Special Appeals receives, on average, 2,000 direct appeals per year. In addition, the court receives another 700 applications for leave to appeal and other miscellaneous filings per year. Approximately 1,500 appellate opinions (both reported and unreported) are filed each year.

Of the cases that reach a written opinion, how many of those cases are affirmed?

Typically, 80 percent of cases are affirmed.

What percentage of appeals involve self-represented parties?

Historically, 26 percent to 29 percent of all cases have had at least one self-represented party.

Has the court taken any steps to accommodate self-represented parties?

Yes. In addition to providing specialized training for the staff in assisting self-represented parties, the court has published a Guide for Self-Representation, which is also available online. The Guide is in its second edition, and the court will be updating the online version soon. The court also has two staff attorneys who process motions filed with the Court. They are given special instructions to carefully read motions filed by self-represented parties to ensure that what the self-represented party is seeking is communicated to the Court.

How important is the (written) brief compared to oral argument?

Briefs are the most important component of appellate practice. For example, in a close case of first impression, a well-written brief can make the difference between winning and losing.

How important is the reply brief that an appellant is permitted to file in the Court of Special Appeals of Maryland?

The purpose of a reply brief is to respond to the arguments raised in the appellee's brief, where such response has not been articulated in the appellant's opening brief. When the reply brief achieves this purpose, it can be very helpful to the panel. Too often, however, a reply brief simply restates the arguments set forth in the appellant's opening brief and thus is of little value to the panel.

What percentage of cases have a reply brief filed by a party?

We typically do not keep track of how many reply briefs are filed with the Court, but a three-month survey of civil cases revealed that reply briefs were filed in around 59 percent of civil cases.

Would you share with us five tips on writing a persuasive appellate brief in the Court of Special Appeals of Maryland?

(1) Clarity Be clear in your writing by assuming that the panel members know nothing about your case. An appellate judge did not rule on any pre-trial motions, nor did he or she preside over your trial.

(2) Organization Be organized in the presentation of both the facts and arguments. For example, you should use headings and sub-headings to guide the reader through each step of your argument.

(3) Conciseness Be concise by presenting only the relevant facts and law necessary to support your argument. A judge does not need to read the same statement or argument several times to understand it.

(4) Accuracy Be accurate in your stating of and citing to the facts in the record and the law applicable to the issue presented.

(5) Honesty Be willing to acknowledge unfavorable case law or legal principles, but then distinguish those cases or cite to countervailing principles.

What tips do you have for our readers on avoiding some of the common mistakes you observe in the briefs filed in the Court of Special Appeals of Maryland?

(1) Familiarize yourself with the appellate rules of procedure and follow them strictly; (2) do not cite to unreported opinions of the Court of Special Appeals or any other unreported opinion (Md. Rule 1-104(a)); (3) do not write the brief to please your client (judges hate ad hominem attacks on the trial judge, opposing counsel, or party); and (4) do not mislead or misstate the facts, or misrepresent or ignore relevant law if you lose your credibility, you have lost all effectiveness as an advocate.

Would you share with us five tips on presenting a persuasive oral argument in the Court of Special Appeals of Maryland?

(1) Be the best prepared person in the courtroom; you should know the record, the law, and the arguments of both sides cold.

(2) Answer the judge's questiondirectly, promptly, and accurately. Judges know instinctively when you are not responding to a question.

(3) Remember the standard of review governing the issue that you are arguing. Appellate judges are not trial judges, and you are not making a closing argument.

(4) Learn the authors of the key cases in your argumentone of those authors may be sitting on your panel.

(5) Above all, be honest about the law, the facts, and the record. Losing credibility with the Court will destroy your effectiveness as an advocate.

What are some of the common mistakes lawyers make in oral argument?

Common mistakes include: (1) reading your oral argument from a prepared text rather than using a "bullet point" outline; (2) speaking too softly or too fast; (3) making ad hominem attacks on your opposing party, his or her counsel, or the trial judge; (4) misrepresenting the record; and (5) failing to answer the question posed by a member of the panel.

What is the process for deciding what cases are to be per curiam opinions?

A case may be decided by the way of a per curiam opinion when the issue is readily resolved by settled law, the facts are not complicated, and the disposition does not require a lengthy discussion of the issue or issues on appeal. A three-judge panel of the Court considers the case, and traditionally, the Chief Judge is a member of that panel.

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Publication:Daily Record (Baltimore, MD)
Article Type:Excerpt
Date:Oct 5, 2018
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