Maryland Business Litigation Lawyer Blog
This article outlines the appellate process in Maryland State court in five parts:
- initiation of the appeal and preliminary procedures;
- briefing deadlines and word count limits;
- the record extract;
- oral argument; and
- the time until an opinion is issued and petitions for review before the Supreme Court of Maryland.
This blog doesn’t cover every scenario, so if you’re litigant thinking about filing an appeal, consult the Silverman Thompson appellate attorneys at 410.385.2225.
Initiation of Appeal and Preliminary Procedures
Maryland has two appellate courts. Most appeals start in the Appellate Court of Maryland (ACM), the State’s first-level appellate court. If a party loses in that court, the party can petition the Supreme Court of Maryland (SCM), the State’s highest court, to review the case. Roughly 85-90% of petitions are denied, so an appeal usually starts and ends in the ACM. In certain types of cases, a party may have right of direct appeal to the SCM, and if the case involves a federal question, a party can petition the Supreme Court of the United States for review, but those situations are uncommon and won’t be covered here.
A party takes an appeal by filing a notice of appeal in the circuit court where the case is pending within 30 days of the entry of the judgment the party is appealing. Md. Rules 8-201(a), 8-202(a). The notice of appeal is a simple one-sentence statement of the party’s desire to appeal to the ACM. Md. Rule 8-201(a). There is no need to identify issues or include argument.
More details about the notice of appeal are covered in a separate blog post here.
In civil cases, the notice of appeal must be accompanied by a Civil Appeal Information Report. Md. Rule 8-205(b). The Information Report includes basic information about the parties and the case, a short non-binding statement of the issues on appeal, and a history of settlement negotiations, if any. See here.
An appellee may file a supplemental Information Report within ten days of service of the appellant’s Information Report. Md. Rule 8-205(c). The purpose of the Information Report is to assist the Appellate Court in determining whether the case would benefit from a scheduling conference or mediation. See Md. Rule 8-206. A scheduling conference, if ordered by the court, is used to “identify and attempt to resolve any special procedural issues and to examine ways to expedite the appeal, if practicable.” Md. Rule 8-206(b)(2).
Following a scheduling conference, or if no scheduling conference is held, the court will issue an order to proceed with the appeal (assuming no problems are identified with the appeal and the case is not referred to mediation). Md. Rule 8-206(c). The circuit court then has 60 days to transmit the record to the Appellate Court. Md. Rule 8-412(a).
The appellant is responsible for ordering any transcripts relevant to the appeal and ensuring their inclusion in the record. See Md. Rule 8-411. If the record omits material necessary for proper consideration of the appeal, a party may move to correct the record with the omitted material. See Md. Rule 8-414. These motions are typically limited to material that was part of the lower court record and may not be used to add new material to the record. See Md. Rule 8-414(a).
Briefing Deadlines and Word Limits
Once the ACM receives and dockets the record, the Clerk will notify the parties in writing and issue a briefing schedule. Md. Rule 8-412(c). Unless the court orders otherwise, the time for filing the appellant’s brief and record extract will be no less than 40 days after the Clerk sends the notice. Id. The appellee’s brief is due within 30 days of the filing of the appellant’s brief. Md. Rule 5-802(a)(2). The appellant may file a reply brief no later than the earlier of 20 days after the filing of the appellee’s brief or 10 days before the oral argument date. Md. Rule 5-802(a)(3). When there are multiple parties on either side of the appeal, they may join in a single brief. Md. Rule 5-802(a)(7).
For principal briefs, the parties may extend the filing deadline up to 30 days by filing a joint stipulation. Md. Rule 5-802(b)(2)(A). For reply briefs, there is no limit on how long the deadline may be extended by joint stipulation, but the brief must be filed at least ten days before the argument date. Md. Rule 5-802(b)(2)(A). Extensions beyond these periods must be obtained by motion. Parties commonly agree to extensions by joint stipulation as a matter of professional curtesy. The ACM is also generally accommodating to motions for extensions, particularly when unopposed, but it is best practice to seek the extension as soon as possible and, absent exceptional circumstances, an extension must be requested at least five days before the due date. See Md. Rule 8-502(b)(2)(B).
In the ACM, principal briefs are limited to 9,100 words, and reply briefs are limited to 3,900 words. Md. Rule 8-503(d). These limits may be enlarged by motion. See id. A party also may adopt by reference a portion of another party’s brief. Md. Rule 8-503(f).
Record Extract
In civil cases in the ACM, and criminal cases in the SCM, the appellant must prepare and file a record extract with the party’s brief, either as an attachment or separate volume. Md. Rule 8-501(a). The record extract must contain “all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal,” including the circuit court docket entries and the judgment being appealed. Md. Rule 8-501(c). The rules specify that the parties should attempt to agree on the contents of the record extract and outline procedures for resolving disputes. See Md. Rule 8-501(c).
The extract contents are usually determined by informal discussions between counsel. If the appellant omits material an appellee believes should have been included, the appellee may append the material to its brief. Md. Rule 5-803(e), (j). The rules state that the record extract should not include “any part of a memorandum of law [filed] in the trial court” unless it has independent relevance (e.g., to show preservation of an issue). Md. Rule 8-501(c).
Amici (interested third parties) may file briefs with the consent of all parties or the permission of the court. The Attorney General of Maryland may also file an amicus brief in a case where the State has an interest. An amicus brief must be filed on or before the due date for the appellee’s principal brief.
Oral Argument
Once the appellee’s brief is filed, the court will set a date for oral argument or submission of the case on the briefs. The ACM routinely grants oral argument when requested by a party, and every case in the SCM is scheduled for argument.
In the ACM, cases are assigned to and argued before a panel of three judges. See Md. Code Ann., Cts. & Jud. Proc. § 1-403(b). The Appellate Court has 15 sitting judges, but panels may include retired appellate judges or specially assigned trial court judges. Panel assignments are released about a week before the argument date. One of the three panel members is assigned to write the opinion. In the SCM, cases are argued before all seven justices. Oral argument is 20 minutes per side in the ACM and 30 minutes per side in the SCM.
Time Until Decision and Certiorari Review
In the ACM, the appeal process can take a year or more. The amount of time the panel takes to issue an opinion varies. Three to six months is typical, though some opinions take more than a year from the argument date. The losing party may seek further review in the SCM by filing a petition for writ of certiorari in that court. The petition must be filed no later than 15 days after the ACM issues its mandate (but this time can be extended by motion). The mandate typically issues 30 days after an opinion, so roughly, a party has 45 days from the date the opinion issues to file a petition.
Though parties typically wait for the ACM to render a decision before filing a certiorari petition, the rules allow parties to file prejudgment petitions. See Md. 8-302(a). The Supreme Court may also “snatch” a case from the Appellate Court by issuing a prejudgment petition on its own motion. Md. Code Ann., Cts. & Jud. Proc. § 12-201.
If you have questions or need help with an appeal in Maryland, reach out to me, Todd Hesel, at thesel@silvermanthompson.com or 410-385-2225.