The subject of this post is a local variation on a question posed by Professor Eugene Volokh in a recent post titled, District Court Opinions Precedential Within the Same District? His post cited Kerr v. Hurd, (S.D. Ohio Mar. 15, 2010), in which a federal magistrate judge recently held as follows:

In the absence of supervening case authority from the Supreme Court or the Court of Appeals, this Court is bound, under the doctrine of stare decisis, to follow decisions of its own judges.

Interestingly, the magistrate’s decision was based on United States v. Hirschhorn, 21 F.2d 758 (S.D.N.Y. 1927), a case in which the judge cited “the general rule that a matter which is decided by any District Judge in this district should be, as a matter of comity, without re-examination by another judge…,” but then declined to follow the decision of his District colleague.

Because the majority of my practice occurs in state courts, the question that came to mind was whether circuit court judges in Maryland view previous opinions and decisions of their colleagues as precedential, persuasive, or none of the above, in the absence of appellate authority?

I suspect the question depends on a number of factors, chief among them, which judge made the previous ruling.  My experience has been that lawyers who are aware that another judge in the same court has previously decided an issue will at least bring the previous decision to the Court’s attention. It is now customary in medical malpractice cases, for example, for lawyers filing or opposing Motions for HIPAA-Compliant Qualified Protective Orders to attach orders previously signed by other judges in the same county as exhibits.

If my personal experience in this regard is representative of most litigators, it is probably just a recognition of the psychological likelihood that judges are more inclined to follow the decisions of the judges with whom they work, as suggested by Volokh. In Maryland, I think the same is probably even true of the inclinations of circuit court judges hearing appeals from cases decided by their district court colleagues.

In practice, it is more difficult for precedential value to be applied to previous circuit court decisions –  as opposed to federal district court decisions — because of the lack of availability of trial court opinions and decisions. It would be difficult for lawyers and judges to analogize or distinguish their case without knowing the specific facts or circumstances of the previous case. Nevertheless, state trial court opinions and memoranda are being made available more frequently on electronic databases, meaning this issue is likely to become more prevalent.

This issue is also relevant to the question of candor.  Maryland Rule of Professional Conduct 3.3(a)(3) prohibits lawyers from “fail[ing] to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Is a lawyer in the circuit court obligated to disclose the existence of an adverse decision on a similar issue made by another judge on the same bench?

I have never seen anyone argue that a trial court is bound by the principles of stare decisis to follow the decisions of other trial court judges, but I would be interested to hear anyone else’s experience with this issue.

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