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Stay-at-home order leaves appellate counsel generally unscathed

Portraits of Cary J. Hansel, Attorney with Joseph Greenwald & Laake, P.A.. Some of which he is holding a photo taken at the scene of the crime where his client, cab driver Dawit Seyoum was beaten by police officers at BWI airport. Maximilian FranzThe Daily Record.

Attorney Cary J. Hansel, of Hansel Law P.C. in Baltimore. (The Daily Record/File photo)

The Maryland governor’s stay-at-home order and court closings that have stunned the general populace and largely stymied trial attorneys have left appellate counsel largely unscathed, as their research, writing and argument preparation are generally accomplished indoors and in private.

“In many ways this is not an uncomfortable situation for someone who does and likes appellate work because I’m sort of stuck with a computer and research and a (trial) record and just happily working away,” attorney J. Bradford McCullough, of Lerch, Early & Brewer Chtd. in Bethesda said of the pandemic-inspired measures.

Cary J. Hansel agreed, saying appellate lawyers spend between 50 and 100 hours doing outside research and writing for every hour they spend arguing a case before an appeals court.

“Teleworking is a natural fit for appellate law because of the research and writing aspect,” said Hansel, of Hansel Law P.C. in Baltimore.

Steven M. Klepper said the new situation fits well with his personality and with those of his fellow attorneys who seek either an affirmance or a reversal of a lower-court decision.

“Appellate practitioners go into that line of work because we thrive with social distancing,” joked Klepper, of Kramon & Graham P.A. in Baltimore.

The attorneys’ comments came amid Gov. Larry Hogan’s order that Marylanders leave their homes only for short walks and to purchase essential items, such as food and medicine. Court of Appeals Chief Judge Mary Ellen Barbera earlier closed trial courts for all but emergency proceedings, which has caused great concern among trial lawyers.

Appellate attorneys, while not experiencing the strain of trial lawyers, expect they will feel a financial pinch because fewer trial court decisions means fewer appeals.

“There will obviously be a lull” created by the lack of verdicts, Hansel said. “The effects have not been felt, but we see them coming.”

Klepper said that a slowdown in trial courts may have “downstream effects” for the appellate workload.

Added McCullough: “It’s like freeze tag. We’re all paused.”

Appellate attorneys will also have to adjust to new ways of presenting their arguments to and fielding questions from appellate judges.

Barbera has postponed the Court of Appeals’ oral arguments scheduled for April and May and invited attorneys to permit the high court to render its decisions in those cases based solely on the submitted briefs. The intermediate Court of Special Appeals plans to hold its April arguments by remote video connection, through the Zoom website, and might also do so in May – a sharp break from the usual practice of judges peppering attorneys with questions in person.

“The real question I think for a lot of us is the effect on oral arguments,” McCullough said. “I’m not sure how that’s going to play out, whether we’re going to be doing that by video (in May) or whether we’ll be doing it the old-fashioned way – in person.”

Klepper said he would be prepared to press his clients’ cases either in person or remotely.

“If they hold Zoom arguments, I’ll be happy to do so,” he said.

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