Silence is your true friend, it will never betray you, especially in a deposition.

You will be deposed. Whether you are plaintiff, defendant, or witness, another participant in the lawsuit will demand that you be questioned, under oath, before a court reporter. Your answers will be typed and presented as a transcript.

A transcript presents as a bound volume of pages, each consisting of 21 double-spaced lines of text. And here is the most important thing-- the spaces between lines of text are uniform. More specifically, the spaces between each line of text do not expand or contract depending on how quickly the deponent responds, or how long the deponent pauses to consider a response.

Happy Holidays to all our clients, friends, and opposing counsel!

 

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."

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.

COVID court, in 2021.

“All Rise! The Circuit Court for Baltimore City is now in session….”

After 32 years of trial practice, my adrenal glands still inject the equivalent of 5 shots of espresso into my system with that announcement. Courtroom awareness requires focus on everything and nothing, all at once.  The call to “All Rise” is enough to throw the switch.

This courtroom is familiar to me. Hundreds of my trials have resonated against its dark burnished mahogany walls, including terse exchanges with a hot bench, the rising drama of a cross-examination, and the edge-of-the-seat attentiveness of jurors sitting shoulder-to-shoulder in the jury box as I walk them through the evidence.

The opening moments of past trials were noisy. The judge swept in, the door to chambers slammed shut, the jury, and spectators rose as one while rushing hushed conversations to abrupt conclusion. The lawyers pushed out their chairs, stood and gulped down one last paper cup of water before the room was called to order.

Today, I rise to heed the Bailiff’s call to order and hear only a series of clicks, the hum of electrical current and the buzz of lights. 

In front of me, the bench shimmers as a hologram of Judge Jackson suddenly appears, projected from a box secured to the ceiling. Her black robe appears bluish in hue, surrounded by the white halo of projected light. To my right, a half-dozen Dell monitors stutter on and flash brightly to form the faces of eight jurors, disembodied images transmitted from the individual juror rooms located in the courthouse basement, each no bigger than a Target dressing room. Each juror is isolated from the others, but physically seated within yards of each other in separate booths.

I am alone at the trial table. I am alone at both trial tables, in fact, because only one lawyer at a time is permitted in the well of the court. As Plaintiff’s counsel, I will present first, and so my learned opponent, someone I have battled here in close proximity for several decades, is sequestered in the next door war room with his client and papers. My client sits in a corresponding war room, across the hall. 

I move to my left, toward the podium. The overhead constellation of cameras hum and buzz, rotating in precise unison to follow my movement. I am alone, but I  am closely observed by Judge Jackson, opposing counsel, the clients and the jury.

“Good morning, Judge.” 

My voice reverberates within the empty room, projected to fill the space, exactly as I learned to do in the early 1980's.

“No need to shout, counsel, the microphones are sensitive and working just fine. Now, we will pick up with our next witness. What do you have for us, today?”

The familiar begins, my heart rate slows:

“Yes, my first witness will appear live, from the in-court projection booth. I ask that the court permit simultaneous display of her portrait on the monitors so they, the jury, may identify the witness behind the N95 mask….”

Judge: “I agree, what next?”

The light on top defense counsel’s monitor flashes red, and his buzzer sounds sharply.

Judge: “You have an objection, counsel?”

Opposing counsel: “The defense invokes the rule on witnesses, and asks that all persons who may testify be sequestered.”

Judge: “I expected that request. The Bailiff is instructed to cut the external video and audio feed to the witness rooms.”

I thank the judge, and call my first witness. The glass doors at the rear of the room slide open, and my witness walks out of the air lock toward the witness stand. The buzz and whir of the overhead cameras are audible above the rub and rustle of the yellow paper hazmat suit encasing the witness.

Judge:  “The Bailiff will swear the witness….”

Another day in COVID Court begins.

Justice can be yours.

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A duty of candor applies in tax sale cases foreclosing rights of redemption.

Our real estate litigation practice touches some of the saddest moments of client life, such as where a family home is lost to tax sale. When real estate taxes and other municipal charges are unpaid, the municipality will auction the property to the highest bidder.  The winning bidder must pay the tax due to the municipality. The winning bidder is then given the privilege to later file a new lawsuit to permanently take the real property from the defaulted taxpayer/owner.

The lawsuit to take ownership of the property asks a judge to extinguish the title owner's "right of redemption."  This is a right to refund to the successful auction bidder the taxes paid to the municipality, plus various fees, interest and expense allowed by statute. The defaulted taxpayer/owner can make this payment, or "redemption," right up to the moment a judge's gavel falls in the lawsuit.

If that redemption is made, all is well and the taxpayer/owner is fully restored to her property.

Where the redemption is not made, usually because of the very hardships that prevented payment of the original tax bill, the court will issue a final order "extinguishing rights of redemption," and granting fee simple title to the successful bidder. This is where today's story begins.

Much of the tax sale and foreclosure process runs on the good faith and professionalism of the lawyers prosecuting the cases--- Our judges rely on truthful representations about service, the status of non-payment, and the material facts of each case. Our rules of professional conduct call this a "duty of candor."  It often requires a lawyer to disclose facts, circumstances and  controlling law that might impair or even defeat the relief she seeks from the court.

The duty of candor greases the gears that run our courts. If counsel is not deemed truthful, she will not obtain desired results. Worse, if counsel is not candid and wrongly obtains a result, then the integrity of our court system is damaged. Further to that point, in a society built on a foundation of property rights, any perversion of the court system by which ownership is involuntarily stripped from one person and awarded to another damages our Nation.

Where a lawyer and her client seeks to foreclose rights of redemption, the order issued by the court contains several requirements, all of which must be met before the lawyer's client may evict the current occupants of the foreclosed property:

1. Pay the full bid purchase price to the municipality (this is the amount bid above the amount of the delinquent tax);
2. Receive a deed from the municipality naming the new title owner;
3. Request and receive writ of possession (a court instruction to the Sheriff directing that the new owner be put in actual possession of the real property;
4. Execution of the writ by the Sheriff (after notice of a date certain, the occupants and their possessions are put out).

The redemption statute in Maryland is written so that the auction bidder has 90 days to pay the full bid price and receive a deed. If this is not done to completion, interested parties may move for a court order vacating the order foreclosing rights of redemption. This may or may not occur, as most folks subject to tax sale foreclosure are caught up in the basic need to secure safe and clean housing.

It is at this point of the proceedings that an attorney's duty of candor is most required for the just operation of our court. The statutes do not expressly say that payment must be made to the municipality before a writ of possession is requested. However, it is logical and just to anyone with a real property background that payment must be made before title can be received, and that title must be received before one has rights to actually possess property, and that one must have legal possession before relying on judicial process to evict the former owner and occupants.

This is not always the case, though, in our local court systems. Some high-volume tax sale foreclosure businessmen and their entities seek writs of possession (item #3 on the list, above) before making full payment in exchange for a deed showing their ownership. This creates the injustice of dispossessing the prior owner while depriving them of the money representing equity in the property. In short, they have lost the property, and they are simultaneously deprived of the money paid for the property.

A recent case handled by this Firm illustrates the issue, and how the court handles such lack of candor when it is revealed.

Our client, an elderly individual with dementia, lost his home to tax sale. His legal guardian could not redeem the property, and so the court issued the order extinguishing rights of redemption and directing the four items, listed above, for the transfer of ownership to the successful auction bidder.

The successful bidder, through its lawyer, made immediate request for a writ of possession, before making full payment and before receiving a title deed. The request filed with the court and upon which the judge relied did not candidly disclose that payment had not yet been made. The court issued the writ, and the Sheriff arrived to put the elderly individual out of the house, with the assistance of his care-giver and guardian.

It was only after this Firm filed a request to set aside the order for the lawyers lack of candor that the successful bidder made payment. But this payment was two months after the elderly individual was put out, and after the successful bidder spent over 50,000 renovating the property in preparation for a flip.

The judge hearing the motion found that the successful bidder had, indeed, jumped the gun to request a writ of possession before having paid for the property. This fell under a rule applicable to all lawyers and litigants, in all cases, barring claims made "without substantial justification." In this instance, like many others that go unnoticed, the successful bidder sought to use the equity in the property as a no-interest loan from the former owner to prepare the property for sale. Without court intervention, the property would have been flipped and those proceeds of sale used to fund payment to the municipality of the bid price.  The municipality would have been asked to issue the deed directly to the new third-party owner, or two deeds would have been executed simultaneously.

And throughout that process, our elderly client would have been deprived of both a home and his money. The judge was as appalled as you likely are while reading this story.  It was for the lack of candor that damages were awarded to our elderly client that included emergency hotel costs and our attorney's fees.

The duty of candor applies to all cases, in all courts. A lack of candor by your opponent, if proven, may well permit you to vacate a prior judgment or to obtain money damages, even where  all appears lost.

Let your lawyers be excellent.

Maryland lawsuits can be a whale of a problem

A contract is a collection of promises. When a promise is broken, it may require court action to get the remedies you seek. We can help!

Defense of a Maryland lawsuit requires leadership.

Stop everything, I need a continuance!

Senators Bobby Zirkin and Wayne Norman have introduced a bill before the Maryland General Assembly making it easier to obtain a continuance in civil court cases.

Senate Bill 250 proposes that a judge "SHALL CONTINUE A CIVIL PROCEEDING IF ALL PARTIES AGREE TO THE CONTINUANCE."

The current practice gives a judge all the discretion to grant, or not grant a requested continuance. Things happen-- witnesses get sick, settlement discussions break-out as parties assess the true cost of proceeding with a case or hearing, and your lawyer may even get sick or have a family emergency.

I have stood before a judge to request a continuance based on a family emergency, with the consent of the other lawyer, only to be told that "the case can proceed with someone else from your office." This was wrong for several reasons, and could have worked a great hardship on our client had I not chosen to ignore the needs of my family. This bill seems to address such a situation.

But even where it might benefit lawyers, I question the wisdom of chipping away at a judge's discretion to run his or her courtroom. We lawyers are in service of the court, as officers of the court, to promote the smooth administration of justice. Ultimately, the judge is our boss on procedural issues in addition to being the final arbiter of the law in our cases.

As a hedge against unwarranted and last minute agreement to postpone a civil proceeding the bill does grant to the court discretion to assess costs. That means if you pull a case on the day of a jury trial, and the court has already pulled a few dozen folks from their jobs to create your jury pool, you and your client may become responsible for paying members of that pool.

But as I write this, I find my objection to this bill is the potential disruption to the court of last minute private agreements to pull hearings and trials. A court schedules events far in advance to permit parties to prepare, and to subpoena witnesses to testify. Those witnesses take time off work well in advance of the court event. Last minute continuances by private agreement, and without a judge weighing the relative inconvenience imposed on the court and others, will cause significant disruption. For example, a court room may well sit empty and unused because of the last minute hole in the schedule-- there is no time to bring in a replacement case at the last minute.

To save the proposal, I suggest that it set a deadline at least thirty-days prior to a court event for such agreements to postpone. Requests inside thirty-days should remain within the sole discretion of the court. This is consistent with existing practice in some jurisdictions. In Baltimore City, for example, requests made inside thirty-days cannot be made by written motion-- you must show up in person to make the request and often argue with the judge and opposing counsel.

The proposal must also consider court designated "disposition" dates, which determine the latest by which a case must be concluded. Private agreements cannot operate to push case disposition too far into the future or there will be a backlog of unresolved cases.

But a good start. Let's see if Sen. Zirkin and Sen. Norman can fine tune the proposal so that it operates effectively.

Visit our website and see what we've been working on.

Dissolve your partnership? It takes more than a little bit of water.

We answer questions posted on AVVO. But space limitations don't always permit a full answer to interesting questions. Here's a very common issue- One business partner is "so over it" and wants to split away from the other partner (or multiple partners). How does he get out of the business relationship?








First, the original AVVO question, as it was posted by a non-lawyer, much as if the prospective client were sitting at our conference room table, over coffee:

Q: What is the exiting/minority owner entitled to when he/she leaves the business?: A partnership where the minority owner decides to leave the business. There is no prior 'record' as to what would happen or a buy/sell agreement in the event the partnership dissolves. If the remaining majority owner of the business wants the exiting partner officially removed from the business what can the remaining partner do with the exiting (minority) partner's percentage of ownership?

A: Thomas’s answer: It must be valued and paid. Absent a written agreement, the code and case law will control. This could drift to a lawsuit for dissolution if folks cannot agree.

Maryland's business code fills in the gaps when business partners don't have their paperwork  in order.  For example, with so much "self help" available to entrepreneurs the documents you think control how your business operates might not adequately address your business relationships and goals. They usually are very deficient in addressing how to dissolve or wind up your business.

Consider the code your default operating agreement.  It may not provide you with a perfect solution, but when coupled with the rules of court, it does provide the mechanisms to separate you from a bad business arrangement.

We most often see broken relationships where partners have stopped effectively communicating with each other, usually after an argument over goals or finances.  It is less often, but just as ordinary that we see one partner complain that the other has committed outright fraud or theft of shared business assets-- like money or opportunities. We have all heard about former business partners competing against each other. That competition might have started even while they were in business together!

Filing a lawsuit to separate partners by dissolving the business entity is costly. It also takes time.  Where partners can no longer communicate the court may appoint a receiver to take control of business assets. There will be depositions, forced mediation in the court, written discovery, document exchanges and expert analysis performed to determine the final accounting between partners.

And there is always the risk that you may owe money, even where you started the case thinking that others would pay money to you. You might even owe a hefty tax bill to Uncle Sam.

But where there is legitimate dispute, the court provides powerful tools to claw back misappropriated assets, and to bar others from profiting from use of partnership opportunities.

After working through contentious partner disputes for almost three decades, I assure it is always less expensive to to tighten up your basic business documents before the first argument, when everyone is still in like with each other. When disputes arise, as they most certainly will, talk, negotiate and settle without court intervention. And if that doesn't work, be ready to take time from your busy schedule to sit for deposition, where only the coffee is free.

Visit our website for more info about Young & Valkenet.

It's All Hallow's Eve! But court shouldn't be scary!

Feeling the heat?

Post by Young & Valkenet.