People are taking a closer and harder look these days at court systems, thanks in part to the publicized successful work of Innocence Projects, the Adnan Syed case in Maryland (and the Serial and Undisclosed podcasts), and shows like Netflix’s Making a Murderer. The guilt or innocence of the keys players in the Steven Avery, Adnan Syed and Brendan Dassey cases is actually irrelevant in some regards.
The bigger story has become, how likely are you to get a real shot at justice here in American given the catastrophic errors that have been publicized as increasingly commonplace?
How many people would it surprise to learn that there are some legal situations where you WILL have to take your case all the way to the appeals court in order to get the justice sought in the lower court in Maryland? Wouldn’t expect that, would you? A trustworthy attorney who has been around long enough, will tell you this truth.
More and more, people are realizing the areas in which human error (both unintentional and deliberate types) can happen in legal cases. And with the continued increases in transparency and accountability, so will there likely be increases in the reporting of such stories. Many people don’t realize the necessity of doing things correctly the first time in a legal scenario. There is a whole different set of rules that apply to appeal proceedings, and it’s important to make sure that your attorney (or you) does things correctly in the lower courts (District or Circuit). Mistakes made there have the ability to ruin your later chances, or make it extremely difficult to get the justice you seek. You should ABSOLUTELY be paying attention to and noting each and every step that your attorney takes and the judge makes. You should ABSOLUTELY NOT be putting blind trust and faith in either one doing all things correctly or necessary. Attorneys get sanctioned for senseless or blatant mistakes, and judges get their decisions overturned (click HERE). (Translation: they are imperfect, just like the 2 parties in front of them in the courtroom… ONE being YOU!). The whole premise behind an appeal is that someone believes that an attorney, party or judge may have made a mistake.
Not saying this to imply that attorneys who had education that you didn’t shouldn’t be trusted. Rather, I’m saying that unless you know the motivations and life challenges that the female/male attorney or judge has, then you won’t know if they’re doing their best in terms of your case. It is therefore best to get as informed as you possibly can about the process, rules, and laws that apply.
There will be no way possible to write all of the things you should know for doing an appeal. I’m just picking out some of the things that I’ve either encountered directly, witnessed with others I’ve met doing appeals, or have read about in the written opinions that Maryland posts on the judiciary’s website. Since Maryland and most states have been recognizing that the number of pro-se participants keeps increasing every year (with some states doing more than others to address the gap in available knowledge that seems proportional to the financial gap that creates more people NEEDING to proceed pro-se in the first place), I find it necessary to contribute in a meaningful way.
- There’s a lot you can learn by reading what has already been done. I’m referring to two sources of information here. First, the written opinions of both of the appeal courts. Many people will look at those opinions as primarily being a source of learning the decision for a case (who prevailed). There is so much more there! Read it to learn WHY the judges decided the way they did. They will typically give a summary of both side’s positions, and then write why one’s argument was right, wrong, or stronger than the other. They will also cite the state laws and rules they used to make the decision. Second, get the legal briefs that both sides used for their argument. Especially the one that prevailed. No sense writing from scratch on your own! You can see exactly how someone’s paid attorney did what may be similar to what YOU are trying to do. Use it, where appropriate!
- Be clear on which lower court decision/order you are appealing, and make sure it is appealable. I’ve read so many Maryland opinions where this issue is mentioned and causes problems. Some jump the gun and appeal before they were able. Some do it too late. As an example, if the Circuit Court rules on your Motion to Stay Foreclosure Sale on July 2nd, and then rules on your Exceptions to Foreclosure on September 15th, your ability to appeal issues you brought up only in the Motion to Stay Foreclosure are severely limited once October 1st comes around. If you appeal on October3rd, you must make sure you address issues that your timing allows. Understand that so that you never have to read the words “issue is not properly before us” that is found in many opinions. Doing otherwise wastes your time, resources and the court’s (both). That leads well into the next one…
- “Filed” date does not mean “entered” date. You MUST know and learn the difference, because it makes a huge difference. The Maryland Case Search on-line system is great for basic information for what MIGHT be transpiring with a case in a court, but should absolutely NOT be relied upon to be the gospel-truth regarding what has happened with a case. In fact, before you can even access it, you must click the box to acknowledge that you understand this before you can proceed. There are several reasons for this that won’t be addressed in this post, but what’s most important is knowing that you must seek the information you need from a different source. THE most accurate place to find it is on the actual order that the judge signed. Most court clerks put a stamp on the front of the order, and it should indicate the “entered” date. That’s the date you want: and it means it’s the date that it got entered into the system, and that the judicial system uses to count the days you have until your appeal right expires. BE CLEAR on what it is.
- You must learn and know the rules of the playground you are playing on. This is another area that gets mentioned frequently in the appeals opinions. You must learn what the rule is that lets you be able to do whatever it is that you are trying to do. Let’s take the Motion to Stay discussed in point #2 above. You’ve missed the appeals deadline to mention the issues you brought up in that motion, but you want to discuss them in your appeal. There is a specific rule that lets do it when it’s beyond the appeal date, and you need to know what it is so that you can properly use it. You must mention the rule, discuss why it applies to your case, and support it with citations to other Maryland cases where the same thing has happened (if you can). Again, the opinions and briefs filed for cases similar to yours can be a wealth of assistance in this area. Not knowing the rules that apply to the appeals court, can get your appeal dismissed. Not knowing them, will not be a valid reason for the court.
- The “court’s discretion” does not mean violating a rule, so don’t ask for or expect it. Deadlines are deadlines, and rules are rules. Doesn’t mean there won’t be people knowingly trying to ignore or violate them. There are notions out there about judges giving leeway to a person who is proceeding without an attorney, but in no way, shape or form should you take that to mean that they have to or will. It is NOT a rule that they must. It’s a suggestion, but there won’t be anything legally wrong if they don’t do it. The definition of “discretion” involves the FREEDOM to decide what should be done. “Should be” and “has to be”, are two different concepts. An appeals judge can use discretion to decide to not dismiss your appeal for not following a technical rule, or use it to do the dismissal. It’s their freedom, and you’re free not to like it, but aren’t free to not respect it. They sometimes mention what they could have done, but decided not to do, in their opinions. It happens.
- There are things you could do that might piss off the deciding judges. Know what they are, and don’t do them. I know a guy who did a Maryland appeal who used the opportunity to (attempt to) put hundreds of pages of documents in front of the judges that really represented his ENTIRE case in the lower court. He had one very specific issue that was “properly before the court”, but he attempted to kick the door entirely wide open by having them look at everything. In other words, he wanted a new judge to look at everything again in the hopes that he would get what he originally wanted. Judges know of this temptation, but they also know the rules (which are why they are there in the first place and you should thoroughly know them). They didn’t use their discretion to dismiss his appeal, but they did take the opportunity in the written opinion to flag him for having done what he should have (I will write “does”) known not to do. Their language revealed their distaste. It’s this simple: follow the rules, and you will be perceived differently than if you don’t. Incidentally, even attorneys will try to sneak in a thing or two in violation of rules. If you do it, they will likely file a Motion to Strike to ask the court to remove the violations. Do you really want those words to be on the minds of judges reviewing your case/request for justice?
- YOUR definition for words will not apply. Learn the legal ones where necessary. I know another guy doing a Maryland appeal who kept wanting to describe the actions of the other party as being “fraudulent”. He kept writing and using the word “fraud” in the draft of his brief. Problem was, the things he was describing fit HIS definition of “fraud”. Though it did fit it well, his definition wasn’t in line with the legal definition. There are a number of words like that; “mistake” is another one. Make sure you are at least checking the Black’s Law definition for such words. Many legal rules, statutes and laws have a “definitions” section before them where the definition is provided. Be informed, so that you aren’t sorry later.
There’s a reason why appeal attorneys get the big bucks, and why I suspect many people don’t do appeals at all. There are many attorneys who won’t even do appeals because of the work necessary for them. But given the fact that there are mistakes being made in rulings made by lower court judges (along with careless investigations, fabricated testimony, falsified documents etc leading to the increased frequency of the reporting of overturned convictions), more should be done to try to close the gap in knowledge. Until the day comes when decisions of lower court judges are automatically reviewed for accuracy and compliance with state laws (I can hope), it’s up to the states to help their citizens as much as possible to pursue justice. The United States Constitution has the provision called “due process”, which is supposed to ensure that all rights given to you as a citizen ARE given to you. But here’s the thing: It’s completely up to you to make sure you get it. And you won’t be able to unless you know them. Having the rights, and having the mechanisms to be able to act upon them, are interrelated.
The courthouse doors are open to people, but what good does that do for those who can’t do anything but scratch their heads in confusion once they are inside? I am aware that the entire appeals system from the limited number of appellate judges to the promised timelines for “justice” rely upon there being a limit to the number of cases in that system. I just believe that it conflicts with constitutional rights. As an example, a person appealing a Circuit Court decision who needs a transcript but cannot afford to pay for it (it is $3 per page for the original copy, and $.50 per page for the copy YOU MUST provide to the other side), cannot get a waiver of those costs. In District Court cases, you can apply for one. But the Circuit Courts are where serious criminal, major civil, juvenile, divorce, appeals from District Court and reviews of government agency decisions are made.
Justice shouldn’t be FOR SALE, available only for the person with the most financial resources. NOT when it’s clear that mistakes are occurring.
So, choose wisely who you give your power to, if you are using an attorney. My personal suggestion and opinion is that you should take your rightful seat as co-pilot with an attorney, or saddle up PROPERLY AND INTELLIGENTLY if you are going first chair (pro-se).
*The Maryland Judiciary has a guide that it makes available on its website for people who are engaged in an appeal in the Maryland Court of Special Appeals. It’s called A Guide for Self-Representation, and you can find it by clicking HERE. There are a lot of great instructions inside the guide, and it’s specifically designed for people who are NOT attorneys. There are self-help services that the judiciary makes citizens aware of on the law library’s website (https://www.peoples-law.org/self-help-services), and something is certainly better than no help. It’s important to do things in the District and Circuit Courts correctly, but if things don’t go as you hoped and you need to appeal and find yourself needing to participate in one of the appeals courts, help is much harder to come by. Hopefully, this post helps.
** The 2012 Guide mentions the importance of reviewing and knowing the Maryland Rules, and instructs you to find them at libraries or on mdcourts.gov. The problem is, for those very important appellate rules, going to that website DOES NOT reveal a way to access the rules. Using the search box to search “rules” DOES NOT provide you with them on the first page of search results (I tried). Instead, you can find them by going to https://www.peoples-law.org/ and clicking on “MD Code and Rules on Westlaw” in the blue box at the bottom right of that page. Then find “Maryland Rules” that are close to the bottom of the page, and click on the one that has “Title 8”. Not easy to find, and given their importance, should be made more easy to access.