Commentary: Preliminary considerations for appeals

Perhaps no aspect of advocacy captures the imagination or distinguishes the lawyer more than the appellate form. Justice William O. Douglas wrote in his autobiography, Go East, Young Man, that the true contests of law are on the intellectual rather than on the emotional level. Nowhere is this truer than in the forum of the appellate tribunal.

The Courts of Appeal sit at the pinnacle of our adversary system. It is there that the rulings of the nisi prius courts become illuminated to serve as beacons of precedent for the emergence of legal precepts that govern our lives.

This article and others to follow discuss some of the key, basic points to consider if you seek to become involved in the appellate process.

The first step is not the initiation of the appeal, but rather preserving the record at trial. It is axiomatic that the appellate courts exist to consider errors of law committed by the trial judge only when such errors relate to issues raised or decided below. If, in hindsight, you think the judge erred but you did not raise an objection or properly preserve an issue, do not bother raising the matter on appeal. In most instances, you have waived your rights.

Other important considerations in the initiation of the appeal include:

*Assuring that you are appealing from a final appealable order (e.g., CJ Section 12-301);

*Filing or noting the appeal within the prescribed time (MRP 8- 201);

*Completing the pre-hearing information report when appealing to the Court of Special Appeals of Maryland (MRP 8-205); and

*Remembering to order the preparation of the trial transcript from the court reporter (8-411(b)).

Generally, an appeal is not ripe if the judgment is not final. This simple statement belies the complexity of defining when a judgment or order is final. For example, if your client is one of three defendants in a case, and the court ruled against your client on summary judgment, can you appeal immediately from this adverse ruling? No, not until the court resolves all the claims with regard to all the parties to the case.

Naturally, there are a few instances when immediate appeals are permitted; e.g., the collateral order doctrine allows certain interlocutory appeals if the order appealed from is separate from the merits of the case. You can also ask the trial court to certify its ruling as a judgment to permit the appeal if it has disposed of a least one entire claim; adjudicated the rights of at least one party in a multi-party case; or granted summary judgment on a portion of a claim for money relief.

When deciding to file an appeal, review the rules with regard to the time period within which the appeal must be noted. While the appeal should be filed within 30 days from the entry of judgment, certain post trial motions stay the time; e.g. motion for a new trial (MRP 2-533); motion for judgment notwithstanding the verdict (MRP 2- 532); and motion to alter or amend judgment (MRP 2-535). The timing for noting an appeal from the U.S. District Court for Maryland in civil cases is also 30 days from entry of final judgment.

In civil cases in Maryland, after the appeal is noted to the Court of Special Appeals you must complete the pre-hearing information report provided by the clerk. This form will educate the Court about the issues in the case. The Court will determine whether conducting a pre-hearing conference would be helpful in either resolving the case or narrowing the issues. The appeal is not docketed until after this conference or until the Court decides not to conduct the conference and the record is transmitted.

Once you learn that the court will not conduct a pre-hearing conference or receive notice confirming that your conference did not resolve the case, you have 10 days to order the transcript from the court reporter. See MRP 8-411; FRAP 10(b). Failure to do so can result in dire consequences. For example, if you forget to order the transcript in a timely fashion and it is not included in the record, your case can be dismissed. If you order beyond the 10 days and the court reporter needs additional time to prepare the transcript, your failure to request it in time may cause the court to deny the court reporter's request for additional time to prepare the transcript.

As appellate counsel, one of your most important tasks is to inspect the record before the trial court sends the record to the Court of Special Appeals. Many problems can be avoided it you carefully check the record. For example, you might find that all the transcripts are not included. Get on the phone and call the court reporter. You might find that an exhibit is missing. Find it. Once the record is transmitted, you are at the mercy of the court if you seek to amend it to include omitted transcripts or exhibits.

The record is due in the Court of Special Appeals 60 days after the court advises that it will conduct a pre-hearing. There are instances when the court will grant an extension of the 60-day period to file the record. The court will be understanding, provided you complied with the rules in ordering the transcript in a timely fashion. Once the record is received, the appellate court will establish a briefing schedule.

These requirements are not what make the appellate process stimulating to the trial lawyer, but they must be respected. Laying the groundwork for the appeal at trial and observing protocol will aid you as you identify the issues to raise in your brief and anticipate the court's standard of review, the subjects of next week's column.

Trial lawyer and author Paul Mark Sandler is a partner with Shapiro Sher Guinot & Sandler in Baltimore. His column appears Fridays in The Daily Record.

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