MACK & MACK, LLP
Mack & Mack, LLP
309 N. Charles St., Suite 300
Baltimore, MD 21201
ph: (443) 423-0464
fax: (410) 779-9071
info
Maryland Appeals Process
1. Overview of Court Structure
In Maryland state courts, trials are conducted either in the District Court or the Circuit Court. Each county has at least one District Court judge and its own Circuit Court. Appeals from District Court decisions go to the Circuit Court in the same county. Appeals from Circuit Court generally go to the Maryland Court of Special Appeals. Despite its name, the Maryland Court of Special Appeals is not actually the highest Maryland Court – it is what is called an "intermediate appellate court" and it hears the vast majority of appeals, many of which do not involve novel legal issues. There are 13 sitting judges on the Maryland Court of Special Appeals. Appeals in the Maryland Court of Special Appeals are heard by a panel of three of the sitting judges or retired appellate judges who are specially appointed, although some appeals can be heard “en banc,” meaning all 13 of the sitting judges hear the appeal. The Court of Appeals of Maryland is the state’s highest court, hearing far fewer appeals and only those involving important issues. There are seven judges on the Court of Appeals of Maryland and all seven judges hear each appeal. The only court that can overturn the Court of Appeals of Maryland is the Supreme Court of the United States, and that is only in certain circumstances. Joseph Mack worked as a law clerk for a year and a half for one of the seven judges on the Court of Appeals of Maryland.
2.What Decisions Of A Trial Court Can Be Appealed? (The Final Judgment Rule)
An important threshold question before initiating an appeal is whether the ruling being challenged is sufficiently “final” to be appealed, or whether the aggrieved party has to wait until all claims are fully resolved to pursue an appeal. The Final Judgment Rule, with some limited exceptions, requires that the parties wait until the entire case is terminated in the trial court before filing appeals. Thus, most pretrial rulings (called “interlocutory rulings” by lawyers) are not appealable unless they fully resolve the case, such as a dismissal of the case or a grant of summary judgment. The Final Judgment Rule is designed to prevent piecemeal appeals and allow the trail court to proceed efficiently. If there were no Final Judgment Rule then the trial court proceedings would be constantly held up by parties filing appeals every time the judge rendered a ruling that a party did not like. There are a few exceptions to the Final Judgment Rule, listed in Md. Code, Courts and Judicial Proceedings §§ 12-303 and 12-304, Md. Rule 2-602(b) and developed by case law called the “collateral order doctrine.” A consultation with Joseph Mack can be helpful in determining whether your issue falls under one of these exceptions.
3. What Types Of Issues Are Best To Present On Appeal?
A skilled appellate attorney such as Joseph Mack is crucial to identifying issues that may be successful on appeal and crafting arguments focused on those points. Just because an outcome was flawed, either based on an objective weighing of the evidence or on legal grounds, does not mean that there can be a successful appeal. This is due to the issues discussed below: the standard of review, preservation of the issue, and harmless error.
A. The Standard Of Review
Some appeals, such as appeals to the Circuit Court from District Court matters involving less than $5,000, are heard de novo, meaning that the Circuit Court conducts an entirely new trial. This means that the parties can call new witnesses or present new evidence. However, most appeals are “on the record” appeals, meaning that no new testimony can be received and no new evidence can be introduced; the parties are stuck with the record created in the trial court, even if new information becomes available after the judgment being appealed. Because the appellate court does not receive any new evidence and is not able to hear live witness testimony, great deference is given to the factual determinations made by the trier of facts below (either the judge in a bench trial or a jury in a jury trial). Thus, if a party wishes to challenge a factual determination on appeal, the party has to show that the factual determination was clearly erroneous. This means that even if the judges on the appellate court, when reviewing the evidence, would have probably come to a different conclusion than the trial court or the jury, they cannot overrule the decision unless no reasonable fact finder could have concluded the way the trail judge or jury did. In contrast, questions of law are not afforded any deference. If the trial judge makes a ruling on an issue of law, including motions to dismiss, motions for summary judgment, and many evidentiary rulings, the appellate court decides the issue de novo (not to be confused with a de novo appeal, where the entire case is reheard), meaning that the appellate court decides the issue fresh without regard to how the trial court resolved the issue. As a result, legal errors, rather than factual errors, are typically much stronger arguments to present on appeal.
B. Preservation Of The Issue
It is not enough that there was some error in the trial of a case; if the party complaining of the error on appeal did not preserve the issue by arguing it to the trail court, then the issue is generally deemed waived and cannot be argued on appeal. This rule is intended to prevent the unfairness that would result if parties were able to raise new issues for the first time on appeal without giving the trial judge the chance to rule on the issue or the opposing party the chance to introduce evidence on the issue (because appellate courts do not accept new evidence). This is why lawyers often make objections that, based on prior rulings of the trial judge, everyone in the courtroom knows will not be sustained; the lawyer is preserving the issue for a subsequent appeal (if necessary). Thus, the appeal must almost always raise only those issues that were argued to the trial court.
C. Harmless Error
Finally, when considering the issues to argue on appeal, the parties must remember that if a ruling was not important to the result of the case, it may not be grounds for reversal even if it was incorrect. For example, even if a judge makes an incorrect ruling excluding certain evidence, if that evidence is only tangentially relevant to the issues decided in the case, an appellate court will not overturn the judgment because of that error. A skilled appellate advocate such as Joseph Mack is very important in identifying those issues that are sufficiently central to a case to avoid the harmless error doctrine.
4. What Is The Process For An Appeal?
A. Filing Notice Of Appeal
In order to initiate an appeal, a notice of appeal must be filed in the trial court within 30 days of either the entry of judgment or, if post-judgment motions are filed, the decision on those post-judgment motions (this deadline is shorter for some real property actions). The notice of appeal is a simple document that informs all parties of the appeal but does not need to explain the grounds. The Court of Speical Appeals charges a $50 fee for the filing of a notice of appeal (see the Court of Special Appeals' fee schedule here).
B. Staying Enforcement Of The Judgment And Securing A Bond
If a money judgment, an award of possession of property, or an injunction (an order from a court requiring a party to refrain from taking some action) is granted in the judgment being appealed, it may be necessary to post a bond in order to postpone enforcement of the judgment while the appeal is heard. This is called a "stay" pending appeal. Depending on the type of judgment, this can range from a bond for the entire amount of a money judgment entered against the appealing party to a bond that will cover the reasonable rental value of real property while the appeal is pending. Please give us a call at (443) 423-0464 to set up a consultation if you have questions about securing a stay or a bond pending appeal.
C. Filing An Information Report (For Court Of Special Appeals)
In appeals from the Circuit Court to the Maryland Court of Special Appeals, the appellant (the party that filed the appeal) must fill out and file an information report with the Court of Special Appeals within 10 days of the filing of the notice of appeal. The information report (link to form here) is a fairly simple form and does not require much time to complete.
D. Ordering Transcripts
In most appeals (other than those that are heard de novo, meaning a complete retrial of the case), the appellant (the party that filed the appeal) must order a written official transcript of the trial or other court proceedings at issue. In Maryland, the audio is recorded of all trial court hearings and trials. However, appellate courts rely on written records, so a written transcript must be produced. This can be a large part of the expense of an appeal, costing approximately $500 - $900 per day of trial. Although this must be paid upfront by the appellant (the party that filed the appeal), the appellate court frequently orders the appellee (the party against whom the appeal is taken) to reimburse the appellant for this and other costs if the appellant is victorious on appeal. The written transcript must be ordered by the appellant within 10 days of a scheduling order that is issued by the Court of Special Appeals in appeals from the Circuit Court and within 10 days of filing the notice of appeal in appeals from the District Court to the Circuit Court.
E. Filing Briefs
The next step in an on the record appeal is the filing of the appellant’s brief indicating the specific grounds in support of reversal of the decision below. In appeals to the Court of Special Appeals, the appellant (the party that filed the appeal) has 40 days from the filing of the record with the Circuit Court once the written transcript is prepared (so typically about three to five months from the filing of the notice of appeal) to file the brief. The appellee (the party against whom the appeal is taken) then has 30 days after the filing of the appellant’s brief to file its brief. The appellant, if it so chooses, may then file a shorter reply brief responding to the arguments made by the appellee within 20 days of the filing of the appellee’s brief. The briefing schedule is considerably shortened in appeals to the Circuit Court from the District Court (although note that in the rare instance when the appeal is de novo, briefs are not required, as instead the entire case is retried). The briefs are the most important aspect of an appeal, as this is where the issues are identified and the law in support of each side’s position is explained. Representation by a skilled appellate advocate such as Joseph Mack is crucial in the preparation of briefs in order to locate support (be it caselaw, statutory, or constitutional) for the positions advocated on appeal and to persuasivly argue those points.
F. The Record Extract
In order to ease the burden on judges hearing the appeal, the parties to an appeal have to work together to identify those portions of the record that need to be reviewed by the judges in order to decide the issues presented on appeal. This is generally accomplished through a record extract, which must be filed by the appellant at the time of the filing of its initial brief. Preparing the record extract can be a time intensive task, but it is generally required by the Maryland rules.
G. Oral Argument
Unless the parties agree not to have oral arguments, an oral argument is held after all of the briefing is concluded. This is an opportunity for the judges to question the attorneys for each side on issues raised in the brief and the record extract. Questions posed by the judges during oral argument can give the skilled appellate lawyer an indication of what might need clarification for the judge and gives the lawyer a chance to address those concerns. Oral argument is best viewed as a formal conversation between the lawyer and the court about the legal issues on appeal. There is no opportunity to introduce new evidence or hear from witnesses, but a skilled attorney will weave in the facts from the record that show why the result below was unjust (if arguing for the appellant) or just (if arguing for the appellee). A written opinion by the appellate court is issued some time after the oral argument (typically one or two months in the Court of Special Appeals, and possibly much longer in the Court of Appeals of Maryland).
H. Certiorari – Discretionary Appeals To The Court of Appeals Of Maryland Or The Supreme Court Of The United States
Typically an appeal to the Circuit Court or the Court of Special Appeals will be the only chance a party has to challenge a ruling. However, in cases presenting important issues, the Court of Appeals of Maryland or, in extremely rare circumstances, the Supreme Court of the United States, may grant certiorari (meaning the court decides to take the case). This is typically accomplished through a petition for certiorari filed with those courts. Unlike an appellate brief, the petition for certiorari focuses on the significance of the issues raised by the case, attempting to convince the judges on those courts that the issues need to be clarified by the state (or the country’s) high court.
Mack & Mack, LLP
309 N. Charles St., Suite 300
Baltimore, MD 21201
ph: (443) 423-0464
fax: (410) 779-9071
info
