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Murphy: Admissible testimony a moving target

Retired judge says lawyers should watch appellate courts for changes on what is permissible in litigation

Retired Court of Appeals Judge Joseph F. Murphy Jr., who literally wrote the book on Maryland evidence, wants to remind lawyers to pay attention to the appellate courts for changes in what testimony may and may not be admissible in litigation.

Joseph F. Murphy Jr., former Court of Appeals judge, will update attendees on admissible testimony at the MSBA’s meeting in Ocean City on Thursday.

For example, Murphy points to the Court of Appeals’ March 22 decision in Ross v. Housing Authority of Baltimore City that expert testimony is not necessarily needed in lead paint cases if circumstantial evidence can show that the poisoning was caused by household exposure. He also cites Chesson et al. v. Montgomery Mutual Insurance Co., a case the high court heard Tuesday, which could lead to the admissibility of scientific evidence beyond the current Frye-Reed standard requiring that such evidence be generally accepted by the scientific community.

“There’s a lot of moving parts in the appellate courts,” says Murphy, who served on Maryland’s top court from 2007 to 2011. Earlier, he served on the intermediate Court of Special Appeals from 1993 to 2007, including 1996 to 2007 as chief, and as a Baltimore County Circuit Court judge from 1984 to 1993.

Murphy, who wrote the Maryland Evidence Handbook, will provide his update Thursday at the Maryland State Bar Association’s annual meeting in Ocean City with his talk, “Evidence 102: Decisions Hot Off the Press and Decisions on the Horizon.”

Or, as he calls it, “New Releases and Coming Attractions.”

Murphy, however, will not limit his discussion to issues such as relevance, hearsay and expert testimony. The former trial judge, noting a lack of decorum and preparation by attorneys, says he will also discuss “how to behave like an adult” in the courtroom.

Murphy promises this part of his talk will be “a little more comprehensive than just ‘don’t be an idiot.’” He plans to provide a checklist, of sorts, to attorneys young and old.

“Be prepared; know the law; know how to behave with civility and professionalism,” said Murphy, a partner at Silverman |Thompson | Slutkin | White LLC in Baltimore. “Being prepared is as important as being present.”

When asked for a list of lawyer behaviors that annoy judges, Murphy demurred, implying his answer could not be confined to a story in the newspaper.

“You’d have to write the Bible for me to give you the complete answer on that.”