This October, the Honorable Joseph F. Murphy, Jr., celebrated his tenth anniversary as Chief Judge of the Maryland Court of Special Appeals. Earlier in the fall, I caught up with him to talk about his work, Court policies, and mistakes lawyers should look out for in their appellate representation.
Q: What are your responsibilities as Chief Judge?
A: The Chief Judge of the Court of Special Appeals is essentially the administrative judge of the court. … I put the panels together every month, and then assign the cases in a way that results in an equal amount of work for every judge. I try to make sure that each judge gets an equal variety of cases so one judge doesn’t get stuck with 15 domestic relations cases in the same month or 25 criminal cases in the same two months.
Q: How many appeals does the Court of Special Appeals of Maryland receive every year?
A: I am not sure of the exact amounts, but each judge on the court writes over 100 opinions himself or herself. Many of the cases that are received by the court are dismissed for procedural reasons, but each judge hears over 300 arguments a year.
Q: What is the philosophy behind the idea of not telling the lawyers or the parties who the panel will be until the morning of the argument?
A: Well, in part it is based on tradition. That is always the way the court has done it, but the fact is the panel may change as late as five minutes before the argument and if a lawyer works for two months under the assumption that he or she is pitching to three particular judges, and suddenly there are three different ones out on the bench, it certainly doesn’t help the lawyer’s confidence very much. So, because we have to make last minute changes on occasion, we simply don’t state in advance who the judges are going to be on a particular argument panel.
Reported or unreported?
Q: Do you perceive that a problem exists when the court issues unreported decisions, in terms of the ability of counsel and parties to rely on such decisions in future cases?
A: The Rules Committee has studied the issue, and decided not to recommend a change. We are now signing all of our opinions. Judge Per Curium retired seven or eight years ago.
There are many reasons why opinions go unreported, not the least of which is the tremendous expense that would result from a requirement that every single opinion be reported. But I think we report the decisions that should be reported. The reporting process begins with the individual judge and then extends to the entire court so every case that is reported has been approved by a majority of the judges on the court as to both the correctness of the decision and as to its importance for purposes of publication. So we try to make sure that there are plenty of reported opinions available to counsel for the purposes of their brief writing and argument.
Q: Who decides whether an opinion is reported or not reported?
A: Ultimately, it is the entire court.
Q: Am I correct that many appellate courts in the United States do not have the same policy as the Court of Special Appeals with the regard to the panel’s opinion being the opinion of the majority of the full court?
A: Yes, there are some courts that simply leave it up to the individual panel members to decide whether to file a reported opinion, and there are courts in which one panel will come out one way and another panel will come another way. With respect to the courts that do that, the thinking, as I understand it, is that the state’s Supreme Court can resolve the conflicts in the panel opinions just as the United States Supreme Court resolves the conflicts in the federal circuits.
Q: Some appellate courts and even trial courts will provide draft opinions to counsel prior to argument. This procedure allows counsel to appreciate what the judges are thinking, and enables counsel to tailor their argument to the precise concerns of the judges. Do you think this is a good practice? Have you ever considered this in terms of the Court of Special Appeals?
A: It strikes me that appellate courts that employ that practice have too much time on their hands. We really don’t have the luxury of writing a draft opinion and then asking counsel to essentially edit it and return it to us.
Briefs and oral argument
Q: What is the biggest mistake that lawyers make in brief writing?
A: The biggest mistake is probably the brief that is written not for the court but for the lawyer’s client; and it is so important for the appellant’s brief to contain a fair, accurate, complete and truthful statement of facts.
Q: What role does the reply brief play in the court’s consideration of the case?
A: Well, the judges read the reply briefs, but if the reply brief is nothing more than a recitation of the original brief, it certainly doesn’t play much of a role; and there are occasions when a judge will point out the fact that the reply brief contains the very same language that is found in the initial brief. And the practice of repeating identical language in the reply brief is insulting; one wonders whether the lawyer thinks that by saying the exact same thing twice, the chances somehow increase that the judges are going to read it at least once.
Q: Your Honor, how are opinions assigned to be written and when?
A: Due to the enormous work load that we have, and due to the requirement that every decision on the merits must be accompanied by an opinion, we pre-assign the opinions, but it’s determined at the post-argument conference which judge will write the opinion.
Q: So is it accurate to say that when counsel present oral argument before a panel there has not been an assignment for opinion writing at that time?
A: Not a final assignment.
Q: But there is a tentative assignment?
A: As I said, we pre-assign them.
Q: Who does that?
A: The Chief Judge does that.
Q: When the oral argument concludes does the panel caucus about the case after the argument?
A: Yes.
Q: Is it on the same day?
A: Same day. Before the judges leave the building, they have conferenced each of the cases that was argued.
Q: What is the biggest mistake lawyers make in oral argument before your Court?
A: The biggest mistake is a jury argument. You and I can remember fondly the Honorable Frank Kaufman, of the United States District Court for the District of Maryland, saying, “counsel, there is no jury in the box” when we were making motions arguments or other procedural arguments. And too often the judges on our court find ourselves paraphrasing Chief Judge Kaufman’s admonishment, “counsel, there is no jury box in the courtroom.”
Q: What advice do you have for the Bar on how more effectively to represent clients before the Court of Special Appeals of Maryland?
A: Remember that you are writing the brief for the court, not for your client, and that your oral argument is presented to three judges and no jurors.
Q: Lastly, what role does oral argument play in the appeal? Is oral argument really determinative in cases? Or helpful?
A: Effective oral argument is helpful in almost all of the cases and can be determinative, particularly in cases where the record shows that the trial court made an erroneous ruling and the real issue is whether that error is harmless or reversible. Ineffective oral argument, however, is never helpful.
Thank you, Chief Judge Murphy.