Appellate Practice Tips and Anecdotes from a Civil Practitioner s Standpoint

Transcription

1 Appellate Practice Tips and Anecdotes from a Civil Practitioner s Standpoint Booth, Booth, Cropper & Marriner, PC Nuts and Bolts of Maryland Appellate Practice The following outline is intended to present some specific appellate tips that I have found to be helpful over the years in a general civil litigation practice. It is not intended to be allinclusive or exhaustive. 1. A successful appeal starts at the trial level Maryland Rule Scope of Review. (a) Generally..Ordinarily, the appellate court will not decide any other issues unless it plainly appears by the record to have been raised or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. In order to win your case on appeal, you need to have a solid record at the trial level. In every case, assume that there will be an appeal and that you will need a clear and complete record of what transpired. At the risk of stating the obvious Make sure that your marked exhibits were actually admitted into evidence. Make the necessary objections to preserve the issues. Preserve all legal arguments that you may wish to make on appeal. Example. In an administrative proceeding before the local board of zoning appeals, if you believe that the effect of the board s decision will constitute a regulatory taking of your client s property, you need to make the argument to the local board to preserve the issue. It may feel like overkill to be arguing constitutional issues to a local board of lay people, but if you don t, you may lose the ability to argue it on appeal. Think about the quality and types of evidence that may be useful not only at trial, but also on appeal. A picture is worth 1,000 words

2 Example. If the case involves a property boundary line dispute or a claim for adverse possession and the jury or the trial judge will be conducting a view of the property, make sure to include photographs as exhibits in the record at the trial court so that the appellate court will have the context of the condition of the property and get a sense of what the trier of fact was asked to view. Photographs can be an effective tool in many types of cases. 2. Once a Judgment is Entered, Carefully Analyze Whether any Post-Trial Motions are Necessary, and Consider the Timing for Filing the Motions Prior to filing an appeal, make sure there is (1) a final judgment; and (2) that there are no issues that you want the trial court to revisit. If there are post-judgment motions, they should be filed within 10 days. A. 10 Day Motions It is important to understand the legal distinctions between filing a 10 day motion under Maryland Rules 2-532, or and filing a 30 day motion under Maryland Rule requesting that the trial court exercise its revisory power. Motions filed pursuant to Maryland Rules (motion for judgment notwithstanding the verdict), (motion for new trial) and (Motion to amend a court decision) must all be filed within 10 days of the entry of judgment: Maryland Rule Motion for judgment notwithstanding the verdict. (a) Time for Filing. Any party may file a motion for new trial within ten days after entry of judgment. Maryland Rule Motion for new trial. (a) Time for Filing. Any party may file a motion for a new trial within ten days after the entry of judgment. Maryland Rule Motion to alter or amend a judgment Court decision. In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment or may enter a new judgment. For court trials, the trial court has very broad revisory power under Maryland Rule Take advantage of this rule if it s warranted in your case before heading to Annapolis. Page 2

3 Pursuant to Maryland Rule 8-202(c), the filing of any of the above 10 day motions will stay the 30 day appeal period: Maryland Rule Notice of appeal Times for filing. (a) Generally. Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after the entry of judgment or order from which the appeal is taken..... (c) Civil Action Post judgment motions. In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule or disposing of a motion pursuant to Rule or A notice of appeal filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion. If a notice of appeal is filed and thereafter a party files a timely motion pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it. B. The Trial Court s 30 Day Revisory Power and the Election Dilemma The trial court also has extensive revisory power for 30 days after the entry of judgment pursuant to Maryland Rule 2-535: Maryland Rule Revisory power. (a) Generally. On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was trial before the court, may take any action that it could have taken under Rule While the trial court has the same broad revisory power under Maryland Rule 2-535(a) that it does under Rule 2-534, if the motion is filed outside of the 10 day window but within the 30 day window, the 30 day appeal period is not stayed. See Pickett v. Noba, Inc., 114 Md. App. 552, 557 (1997) (holding that the timely filing of a motion under Rule 2-535(a) does not automatically stay an appeal if it is filed more than 10 days after the judgment, and noting that commentators have recognized that, in these situations, the Rule motion acts as a substitute for an appeal ). If a litigant files a motion under Maryland Rule 2-535(a) asking the Court to exercise its revisory power to alter or amend the judgment after the 10 day window but within the 30 day period, and also files a notice of appeal, prior to the hearing on the motion, the movant will need Page 3

4 to make an election whether to proceed with the motion before the trial court, or to proceed with the appeal. Unless an appeal is dismissed when the Rule motion comes before the trial judge for a hearing, the movant/appellant must elect between his motion and his appeal. Tilller v. Elfenbein, 205 Md. 14 (1954). If the appeal is dismissed before the hearing, the motion stands for a hearing as though no appeal has been entered. Id. If the appeal is not dismissed, the trial court has no jurisdiction to consider the matter. Eisenbeiss v. Jarrell, 52 Md. App. 677 (1982); see also Visnich v. Washington Sub. San. Comm n, 226 Md. 589 (1961). A Rule motion, if filed within 10 days of the entry of judgment of the court, will be treated as a motion under Rule and will have the same effect on the appeal time. Alitalia Linee Aeree Italiane v. Tornillo, 320 Md. 192, 200 (1993). Bottom line: To protect your client s right to appeal in civil cases, make sure that any post-trial motions are filed within 10 days of the date of judgment. Example. Where complaint seeks a declaration of the rights of the parties pursuant to the Declaratory Judgment Act, the trial court is required to declare the rights of the parties. If the complaint contains several counts and the trial judge rules in your favor, but does not enter a declaratory judgment, you should file a motion within 10 days asking that the court enter such a declaration. Otherwise, the appellate court might reverse and remand the case solely for this reason, which may result in another appeal. Example. The election dilemma for the commercial marina pier that was ordered to be demolished. 3. Tips on Preparing the Record Extract and Writing the Brief Whether it s your first appeal or your 100 th appeal, review the Maryland Rules on appeals prior to filing the appeal/brief/motion. Review the record as soon as possible and prior to the record being transmitted to Annapolis to ensure that you have copies of all of the exhibits. Don t include memorandum of law filed in the trial court (one of my pet peeves). See Maryland Rule 8-501(c) ( the record extract shall not include any part of a memorandum of law in the trial court unless it has independent relevance. ) Carefully think about the questions presented. One of the last things I do before sending a brief to the printer is to re-read the question presented and make sure that it clearly and concisely sets up the questions on appeal. Page 4

5 My approach to appellate briefs (1) tell the court what you are going to say; (2) say it; (3) tell the court what you said. This approach can be effective if it s done judiciously and without being overly repetitive. If you are the appellee, don t simply respond to the arguments presented by the appellant. Frame the question presented differently if you don t agree with the way your opponent has framed it. Structure your brief to make your legal argument, and emphasize why your position is correct, not simply why the appellant is incorrect. Think carefully about the organization of your arguments. Make your strongest and most significant arguments/positions first. Footnotes are an effective tool for communicating ancillary information. If you are the appellant, make your reply brief an effective advocacy tool. Respond to the appellee s brief -- don t simply regurgitate your brief. There may be times when, depending on the issues presented in the case and how they are addressed in the brief, no reply brief is necessary at all. 4. Oral Argument While some of the following advice may seem obvious (and in fact, its advice that I often give my middle schoolers for how to succeed in school), we can benefit from being reminded of the basics from time to time -- Leading up to the argument, read and reread the briefs and record extract. You only have 20 minutes be smart about your use of time. You can t possibly cover your entire brief in 20 minutes. Pick out most significant issue(s) and argue them first. Don t simply memorize and regurgitate your brief. Some of my best arguments have been when I simply engage in a dialogue with the court by answering their questions. If you don t understand one of their questions, ask them to repeat it. Don t talk over the judges. Let them finish their question before you try to answer it. Answer the questions actually posed by the court, not the question that you want to answer. You aren t a politician running for office, and they aren t reporters on CNN. They want you to answer their question, and will likely keep asking it until you actually answer it. Save yourself the embarrassment and answer it the first time. Page 5

6 If there is a key exhibit or excerpt in the transcript that you feel is significant, mention it specifically during the argument. Be respectful of opposing counsel. We are civil and professional lawyers from the shore act like it! If the judges have exhausted their questions, and you have nothing more to add, there is nothing wrong with finishing early and sitting down! Page 6