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Maryland’s second-highest court will soon begin announcing at least one week before oral arguments the names of the three judges who will hear a particular day’s appeals, a break from the court’s long-held practice of withholding the announcement of names until the morning of a hearing.
The Court of Special Appeals’ advance listing will begin with its May argument schedule and comes with the caveat that “panel assignments are always preliminary and subject to change.” The court will also require attorneys who believe they have a basis to seek a judge’s recusal to move for recusal at least three business days before the scheduled argument.
Citing the recusal provision, Court of Special Appeals Chief Judge Matthew J. Fader said the notification policy was made to enable attorneys, who are intimately familiar with their cases, to alert judges to any conflicts of interest they might have in considering and deciding a case.
“The primary reason is to ensure attorneys and parties have an adequate opportunity to identify, consider and raise any particular conflict or appearance issues of which the judges themselves may be unaware,” Fader said Friday.
At the 15-member Court of Special Appeals, arguments are generally heard by a panel of three judges. Losers at this stage may request that the panel’s decision be reviewed by all 15 members or may seek review by Maryland’s top court, the Court of Appeals.
Appellate attorneys have praised the intermediate court’s new policy, saying identification of the panel’s judges a week – rather than mere moments – before a hearing will enable lawyers to prepare and focus their arguments more effectively.
“Knowing who your panel is makes it more possible to have effective moot courts,” said Steven M. Klepper, referring to the practice arguments lawyers make before colleagues who pretend to be judges.
“Each judge has his or her own questioning style,” said Klepper, of Kramon & Graham P.A. in Baltimore.
For example, he said, “some judges are more interested in public policy justifications for legal rules even when the law seems settled.”
In addition, knowing the composition of the scheduled three-judge panel – and researching how the judges have ruled in similar cases – could spur parties in civil litigation to settle their cases rather than continue to press appeals.
“I am curious whether this information will lead to more settlements of civil cases in the lead-up to argument,” Klepper said.
Appellate attorney Bruce L. Marcus called the week’s notice “a great thing” for himself and other appellate attorneys as they prepare to press their clients’ appeals.
“The ability to focus on particular decisions and particular judges will ultimately improve the quality of argument,” said Marcus, of MarcusBonsib LLC in Greenbelt.
But Fader, the chief judge, said only time will tell.
“It can potentially improve the quality of the argument, but we’ll see how that comes out in practice,” he said.
The three-judge panels will be listed on the Court of Special Appeals website under “Court Schedule” seven to 10 days before argument.
At the federal level, the 4th U.S. Circuit Court of Appeals reviews decisions by the U.S. District Court for Maryland. The 15-member 4th Circuit maintains the practice – now abandoned by the Court of Special Appeals — of announcing its three-judge panels on the morning of arguments, to the chagrin of appellate attorneys.
