March 14, 2014

Attention those who have cases in appellate courts: "Appellate Practice for the Maryland Lawyer, State and Federal, Fourth Edition," just released.

It was November 1, 1977 when the Maryland State Bar Association published the first edition of The Maryland Appellate Practice Handbook conceived and edited by yours truly. There are stories to tell about those days and how the book was then launched. But those stories are for another day. The book was a two-volume text featuring the nuts and bolts of appellate practice. The contributors, including the editor, shared ideas on every phase of the appellate process, from preserving the record to motions for reconsideration after appellate-court mandates.

Over the years numerous modifications helped keep the book current. Two significant and welcome changes were the advent of my friend and colleague at the Bar, Andrew D. Levy, as co-editor, and the emergence of the first volume edition of the book under its current title.

Recently Andy and I released the fourth edition of the book: Appellate Practice for the Maryland Lawyer, State and Federal (Sandler and Levy, Editors, MSBA, 2014). The first part of the book penetrates the inner workings of the Court of Appeals of Maryland, the Court of Special Appeals of Maryland, and the United States Court of Appeals for the Fourth Circuit. The inside scoops are revealed not by counsel but by prominent judges on the courts, including two chief judges. The chapters are then followed by chapters contributed by the clerks of the courts and by court mediators.

The second part of the book examines brief-writing and oral argument with chapter contributions from expert appellate counsel and the judges. The reader can brush up the current law and techniques in filing motions and petitions for certiorari. Unique issues in administrative appeals and criminal appeals are also featured, as are sample briefs and cert petitions.

Over 37 judges and lawyers wrote chapters in the new edition, including the editors. The editors hope to have contributed to the improvement of appellate practice and to the dialogue of what makes an outstanding appellate brief and oral argument.

The editors take no royalties for the book, but we do take your suggestions for improvements, which we can include in future supplements and the next edition.

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December 30, 2013

Immigration Status in Personal Injury Cases: Ayala v. Lee

Should evidence concerning a plaintiff's immigration status be admissible in a personal injury trial? Maryland's Court of Special Appeals says yes -- if the evidence is relevant and not prejudicial with respect to damages. Yesterday The Daily Record published a helpful story dissecting the Court's decision in Rigoberto E. Domingos Ayala, et al, v. Robert Frederick Lee, a case resulting from an automobile accident in which two undocumented workers were severely injured.

The decision, written by Judge Robert A. Zarnoch, overturns a jury verdict for the defense and states that the plaintiffs are entitled to a new trial on the question of damages. According to the unanimous three-judge panel, the evidence shows that the trial court should have granted the plaintiffs' motion for judgment as to liability.

"Reviewing cases from around the country," The Daily Record reports, "the Court of Special Appeals said neither federal law nor a Supreme Court case from 2002 precludes an award of lost wages and damages to undocumented immigrants."

But immigration status may factor into how damages are calculated, according to the Court, and the decision offers guidelines as to what evidence the jury could consider.

Read the full story here (subscription required).

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August 7, 2013

Email Signatures Can Be Binding: Forcelli v. Gelco

A New York appellate court has confirmed what many people may already presume: that an email can sometimes carry the same clout as a formal, signed document. The decision reinforces the point that email correspondence in the context of negotiations must be undertaken with care.

As reported last week in the New York Law Journal, the appellate judges in Forcelli v. Gelco Corporation unanimously ruled that a signed email attesting to a negotiated agreement – and signed by email signature -- is just as binding as a signature on the agreement itself.

New York statues, like Maryland’s, instruct that an agreement must be “signed” by the parties or their attorneys in order to be valid. However, in the decision handled down by New York’s Appellate Division, Second Department, Justice Sandra Sgroi wrote, “Given the widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria…simply because they cannot be physically signed in a traditional fashion.”

In Forcelli, the dispute focused on the enforceability of an email that summed up the terms of a settlement over a car accident. Plaintiff John Forcelli had sued Gelco Corporation for injuries sustained when another vehicle collided with his. Gelco owned the vehicle that hit Mr. Forcelli’s car.

The email in question was sent to all parties involved and was “e-signed” by the claims adjuster representing Gelco’s insurer, reflecting that all parties had agreed orally that Mr. Forcelli would be paid a settlement of $230,000. The email attached a Medicare document for signature; at the bottom of the email the adjuster typed, “Thanks Brenda Greene” (her name).

Mr. Forcelli signed his copy agreeing to the terms, had it notarized and then his attorney filed a motion to release the other parties from all further court action. He did so under the presumption that the documents would actually be signed and returned per the agreement and that he would receive his settlement money.

Once the court accepted Mr. Forcelli’s motion to release the other parties and vacated the matter, Gelco’s attorney faxed a letter to Mr. Forcelli’s counsel telling him that the settlement was “not consummated” under New York law and that the motion to vacate now relieved Gelco of the $230,000 settlement terms. The court disagreed.

As the attorney for Mr. Forcelli said following the verdict, “This confirms what all reasonable minds would have expected, that mutually agreed to settlements -- where confirmed via email or fax, and followed up by transmittal of settlement documents -- constitutes a binding settlement.”

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July 9, 2011

Protect your right to appeal as you try your case

There will be cases in which victory will not be yours. In some of those cases, your client may want to appeal the court’s ruling. It is your job as her lawyer to protect this option to the best of your ability.

Bear in mind that appellate courts exist solely to review errors of law committed by the trial judge. In other words, your client cannot appeal simply because she wasn’t happy with the verdict.

Still, good trial lawyers try every case with a third eye – two eyes on the trial and the third on the record that an appellate court may ultimately review. They protect the appeal by making timely objections when appropriate and following up by a proffer when prevented from introducing evidence. Good trial lawyers get deeply familiar with the rules of procedure and evidence.

At all times during the trial, when good trial lawyers spot errors of any significance, they obtain a ruling from the judge. Without a ruling from the court, the trial lawyer has not preserved the right to appeal on that matter. Such was the fate of a lawyer who discovered what he considered to be jury misconduct. He never brought the matter to the attention to the judge. Ultimately, he found himself in court defending his omission.

This doesn’t mean that, as an alert trial lawyer, you must object to every infraction you see. Persistent objections will agitate judges and jurors alike, especially if many of these objections are overruled. A barrage of objections by you may cause jurors to think that you are trying to hide certain facts. Before you object, ask yourself: Will this objection help the case? Will it help in appeal? If not, it may be better left unspoken.

That said, certain objections are important in preserving an appeal: Be ready to object to summaries or charts coming into evidence that are not based on genuine data you have had the opportunity to inspect – or if that data is being misstated or mischaracterized by the opposing party.

Compound and leading questions, calls for a narrative, and “asked and answered” questions are often worthy of an objection, as are opposing counsel’s assumptions or misstatements of facts that are not in evidence, or that are argumentative or ambiguous.

Study the Federal Rules of Evidence, and, in particular, Federal Rule 404. This rule deals broadly with character evidence, providing that evidence of a person’s character is inadmissible to prove action in conformity with that character. It is only when character is an essential issue in a charge, claim or defense that the character evidence in question would be allowable. For example, if an individual is on trial for assault, evidence that underscores his peacefulness would be permitted. Federal Rule 404, and in particular, Rule 404 (b), which involves “prior bad acts,” is one of the most frequently cited rules of evidence. Objections can be made – and often are -- when the requirements of 404(b) are not fulfilled.

Be alert as well for times when your opponent asks a witness a question to which -- rather than answering -- the witness responds with a tangential narrative. At those points, you may need to object and ask that the testimony be stricken on the basis that the answer is not responsive or is otherwise improper. Similarly, it is your job to prevent lay witnesses from rendering opinions. Good trial lawyers will object when adverse witnesses stray from the facts of the case and into the realm of what they “think” or “assume.”

You must also object when a judge excludes your proposed jury instructions or gives a jury instruction to which you object. (Judges should give you an opportunity to make such objections at the bench.) If the judge does not grant your request to give a particular instruction, it is crucial that you include the proposed instruction in the record.

Oftentimes, trial lawyers are quick to object to comments and actions of opposing counsel and adverse witnesses, but less so when it comes to the judge’s questions. Keep in mind that objecting to a question or decision from the bench can be necessary to preserve the appeal. So too can the inclusion in the record of all exhibits. Before you rest your case, review all of the exhibits to confirm that you have not left anything out. It is a sad realization to discover, when preparing for an appeal, that the record is incomplete.

More about preserving and protecting the appeal can be found in chapter 11 of my new book, Anatomy of a Trial: A Handbook for Young Lawyers.

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November 26, 2008

Preserving the Appeal

Imagine presenting your closing argument to Frankenstein and the Wicked Witch. In a bizarre turn of events, jurors for the 2001 malpractice trial of Zabin v. Picciotto were allowed to don Halloween costumes as the trial came to a close at the end of October. (Thanks to the Docket of Mass Lawyers Weekly for this unusual news.) After an unfavorable decision, the defendants appealed, insisting that the costumes turned the trial into a circus and denied them due process. The appeal claimed that plaintiffs counsel even handed out candy to the jurors! I’m all for developing a positive ethos with jurors, but that’s taking it a bit far.

The appeals court seems to have agreed that things got out of hand. The decision chided the lower court for agreeing to the costume request, which “cannot but have detracted from the seriousness and gravity of formal court proceedings.” But the court denied the request of a new trial, pointing out that the trial judge had consulted with counsel for all parties about the decision and that all counsel agreed to let the jurors have their way.

This case caught my eye because it hits upon a couple of themes I have written about in the past, most recently in Anatomy of a Trial, a book published earlier this month. One of the issues here is the importance of preserving the appeal.

Continue reading "Preserving the Appeal " »

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