Thursday, June 18, 2020

Maryland's Court of Appeals adopts tech changes to make justice more accessible.

This week, Maryland's highest court, which makes the rules dictating how litigation is conducted in all of our courts, adopted rules making access to justice a bit easier.

Spurred by the inconvenience visited by COVID-19, where mandatory closures prevent many court room activities, the Court approved the following;

  • Video conferencing in the District Courts- A visit to the District Court is often akin to a visit to the MVA. The waits are long, the rooms crowded, and you are often told to return, again, on a later day. Soon, many conferences and hearings will be held by video participation.  What remains to be worked out is whether persons without internet or a computer may still participate in person, or whether this innovation has created another practical impediment to court access for some.
  • Electronic filing for appeals- Three of Maryland's largest jurisdictions are Baltimore City, Prince George's and Montgomery Counties. They are not yet set up for electronic filing. Appeals to the courts in Annapolis are thus not done electronically. That has been changed.  While filings in the Circuit Courts must still be mailed or hand-delivered, appellate filings to the courts in Annapolis will be via the on-line portal.  This is a modest improvement, but a step toward uniform efficiency.
  • Remote video depositions- The current rules of procedure do not contemplate remote participation via video. Taping is routine, but it still requires gathering in one location. The conduct of remote discovery can add efficiencies to litigation, while also adding complexities that drive up costs for litigants. It also creates opportunity for shenanigans, where remote deponents may be secretly coached or manipulated by off-camera persons or devices. 
We will help you manage these innovations, and move your cases to the swiftest conclusion our system will allow. Changes must be made, and they will breed additional modifications in how we conduct your cases. We will adapt and grow with them. As the CEO of Uber reminds us, "ultimately, progress and innovation win."

Friday, May 29, 2020

Litigating in Overtime - How to "undo" a final judgment and reported decision.

The law exists to give us finality. Litigants seek final dispositions of their business disputes, whether by mediation, arbitration, trial or appeal. Future conduct is often guided by a final decision by a court. As a law firm, we work hard to achieve litigated outcomes that benefit our clients. Recently, our work lead to a reported decision from the Maryland Court of Special Appeals. We both won for our specific client, and obtained broad statements of law that would guide similar cases involving others. The case was done, except that we were not done with the case.

My client was sued in the Circuit Court for breach of an alleged contract. The Plaintiff demanded significant money damages. Our client prevailed in the trial court, persuading the judge that a trial was not necessary. Our client received a summary judgment.  On appeal, the Court of Special Appeals affirmed the trial court-- issuing a reported decision.

Reported decisions are important. They represent a small percentage of cases decided on appeal. A reported case becomes part of Maryland’s permanent body of judge-made law. A reported case goes beyond resolution of the dispute between those particular litigants. A reported decision guides the future conduct of all similarly situated persons in Maryland, until the case is over-ruled or the law is modified by yet another case. This is how Maryland’s common law grows and evolves.

Trial lawyers, like us, really do enjoy winning. And we enjoy it just a bit more when the win also results in a reported decision.

In our recent case, however, our opponent filed a timely motion for reconsideration to the Court of Special Appeals, tolling the issuance of the Court’s mandate.  While the motion was pending, and before an opposition was due, counsel for the losing party made a settlement offer that would greatly benefit our client. But to accept the offer would require that we work with the other side to vacate a reported decision.

How does that work? My client was eager to accept the offer -- who wouldn’t want a check, despite being sued?  But the hangup, I thought, was: how do you vacate a reported decision?

The answer, it turns out, lies in Md. R. 17-404(f), which permits the Court plenary authority to dispose of cases that are resolved through the CoSA ADR division.  And so, with the assistance of the director of the CoSA ADR division, we submitted a consent order which was vetted and approved by the Chief Judge.  Within a matter of days, a consent order was issued by the CoSA vacating the reported decision, withdrawing the decision for reporting, and remanding the case with instructions for the Circuit Court to vacate its order and dismiss the case with prejudice.

Final judgment, then, need not impede a favorable settlement. A winner might do just a little better, and a loser might avert complete catastrophe, by continuing settlement negotiations right through the very end of a case.

Tuesday, May 19, 2020

I am ready to re-embrace arbitration.

For 30+ years arbitration has been the Boston Red Sox of my law practice- a second favorite. I have participated in hundreds of arbitration proceedings, as my clients often make contracts requiring this mode of dispute resolution. Given a choice, though, I have grown to prefer court trials, before judges and juries.

The extra administrative costs imposed on clients to commence arbitration in complex or high value matters is often far greater than the costs of initiating and prosecuting court action. Filing fees in arbitration are often based on a sliding scale tied to the value of a claim. A court filing fee is slight, regardless of the value of the case. Coupled with the ongoing administrative fees charged by some organizations the cost to merely access the arbitration process can be exorbitant. The discovery process in arbitration is not all that much shorter or less expensive then court cases- documents must still be produced, depositions taken, and experts retained in both forums.

Hearings and trials can be crowded affairs. While discovery can be conducted piecemeal, over time and with varied participants in varied locales, hearings and trials are mostly convened in crowded government buildings. Just getting to the courtroom can be an ordeal. Many local jurisdictions are now imposing mandatory temperature monitoring and completion of health screening questions upon entry. The courtroom itself can then be as crowded as any church on Sunday.

But my favored courtrooms are ill-equipped for post-COVID dispute resolution. The buildings we admire for their historical details, and those we tolerate despite their dated or cramped layouts, are simply not conducive to social distancing. It is going to take years, and bundles of tax dollars, to retrofit these facilities for modern and safe dispute resolution.

So that we may serve our clients, now and for the immediate future, all lawyers who rely heavily on litigation must reassess whether the courts remain the best forum for dispute resolution in complex civil matters.

I am ready to re-embrace arbitration because the most readily controlled facet of the process is location. An arbitration can be conducted in any mutually agreed location, of any size, and can be readily mixed with remote broadcasting. The forum can be tailored to the specific needs of any party, witness, lawyer or arbitrator. 
Every case includes persons suffering some manner health issue that compromises their immune systems. During the halcyon days of last December, most personal health issues would have been unworthy of a mention in the context of a case. Today and until we are all vaccinated, however, the relative health of all participants in a legal dispute must be acknowledged, respected and accommodated.

Some items that I might consider for future arbitration cases include:

The participants- Whether any person who will participate or appear has a particular health vulnerability that must be accommodated by particular hygiene protocols, space or distance technology. These issues might pertain to one, some or all participants.

The space- Where the space is located, how it must be accessed, and whether it is sanitary. The public library conference area may be less of a controlled environment than the conference center of a court reporting service or hotel, for example.
The technology- Where remote participation by video is necessary because of health concerns, whether it is secure and truly interactive, and can it be intentionally or inadvertently misused.

The cost- The very issue that often pushed me in the direction of a courthouse remains an important consideration. Extra health protocols, technology and spacing will only add to the costs associated with arbitration. This is simply not avoidable until every person has been inoculated against the disease.

The cost-benefit analyses done pre-COVID for existing cases are no longer reliable. Employed clients may be unemployed, entities may now be financially strapped, and the immediate financial needs and burdens for all have certainly changed. These factors, including the human cost of litigating in court versus a private arbitration, are now interacting in a way that requires a top to bottom review of how cases are valued and conducted to disposition.

I am ready to re-embrace arbitration as part of this practice wide re-evaluation.