By Paul Mark Sandler, Esq.
Since 1803, when Chief Justice John Marshall of the U.S. Supreme Court decided Marbury v. Madison, which established the doctrine of judicial review, the appellate courts in our system of justice have served as the pinnacle of our court system and the vanguard of justice.
Over centuries, appellate lawyers like Thurgood Marshall and John W. Davis have argued appeals, striving for precedent-setting cases to establish final judgments on vast public policy issues. Appellate practice has become a specialty of many lawyers who cultivate the learning and experience to excel as appellate advocates, relying on the learned texts that have been written on the topic.
One such resource, “Appellate Practice for the Maryland Lawyer State and Federal,” is published by the Maryland State Bar Association and is now in its sixth edition. It was first published in 1977 and has since been inducted into the United States Supreme Court Library.
The revised book contains 45 chapters written by almost as many judges, lawyers, court clerks, and mediators combined. They graciously contributed to this current edition devoted to practice and rules in the Maryland Supreme Court, the Maryland Appellate Court, and the U.S. Court of Appeals for the 4th Circuit. No author accepts royalties including the editors: Andrew Levy, Steven Klepper, and yours truly.
From the basics to the more erudite, almost every aspect of appellate practice is included. Among the subjects discussed are preserving the record, the final appealable order (by Judge Kevin F. Arthur of the Maryland Appellate Court and Sean R. Luhks, senior law clerk at Maryland Judiciary), filing the appeal, petitions for certiorari, brief writing, motion practice, oral argument, appellate judicial notice, and more.
Judge Douglas R. M. Nazarian of the Maryland Appellate Court and Justice Angela M. Eaves of the Maryland Supreme Court discuss the appellant’s brief, and Justice Jonathan Biran of the Maryland Supreme Court discusses the appellee’s brief. Judge Andrea M. Leahy of the Maryland Appellate Court writes about dispositions and mandates.
The book also features chapters on the inner workings of the courts. Former Chief Judge Roger L. Gregory and current Chief Judge Albert Diaz write about the decision-making process within the 4th Circuit, stating that “while briefs are the most meaningful input from counsel, oral argument should not lightly be forborne particularly in close, complex or difficult cases.”
Chief Justice Matthew J. Fader and Judge Deborah Eyler provide insight into the Maryland Supreme Court of Maryland and the Appellate Court, respectively. Chief Judge E. Gregory Wells of the Appellate Court offers suggestions —such as clarity, organization, accuracy, conciseness, accuracy, and honesty — when filing a written brief in the Appellate Court, adding that common mistakes in oral argument include not answering the question, personal attacks on opposing party, misstating the record, and treating the appeal as closing argument at trial. These chapters are especially illuminating regarding what the courts desire from counsel.
One special feature of the book is the insight gleaned by interviews with the chief jurists. Chief Justice Fader calls the Appellate Court “the work horse” within the appellate system. He discusses how to obtain the opportunity to present a case in the Supreme Court via a petition for certiorari and offers advice on what to include in the petition.
He suggests identifying questions that are desirable and in the public interest, rather than focusing on issues between the parties that can distract the court. He points out that the court averages about 570 petitions a year, with just under 13% on average granted. Regarding brief writing and oral argument, Fader states he does not consider one more important than the other. Interestingly, former Chief Justice Gregory considers the brief to be far more important.
Also included in the book is a discussion on the inner workings of the clerk’s office within the appellate courts. Gregory Hilton, clerk of the Supreme Court, discusses the life of a case and offers suggestions for filing petitions for certiorari. Annamaria M. Walsh, director of alternative dispute resolution for the Appellate Court, discusses dispute resolution and mediation.
Patricia S. Connor, clerk of the 4th Circuit, and Sarah C. Carr, web administrator and assistant calendar clerk, discuss electronic filing using the court’s case management/electronic case files system, as well as aspects of formatting briefs.
The MSBA will continue to offer CLE programs on appellate practice. We look forward to seeing our distinguished jurists and appellate lawyers teaching seminars and posing questions to them. Regarding our jurists: If fish could talk, who would bother asking anglers how to catch them? But judges can talk, so let’s ask them! See you at the next MSBA appellate practice program.
Paul Mark Sandler, trial attorney and author, can be reached at pms@shapirosher.com.
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*This article was originally published in The Daily Record on December 15, 2023. Reprinted with permission.
