On the Record

I wrote a story for today’s paper on a Court of Appeals opinion concerning a medical malpractice case. The main issue was whether the expert witness spent too much of his professional life as, well, an expert witness. (The Court of Appeals said that yes, he did, and was therefore properly disqualified from testifying in the case.)

In the course of writing the story, I rediscovered this gem from 2007, when the case went to trial. It’s a story from The (Erstwhile) Examiner, and it deals with the clash between two high-profile, ego-rific “titan”  litigators: Steve Snyder and Billy Murphy. Snyder represented the plaintiffs (on appeal, the case was handled by Snyder’s one-time partner Andy Slutkin) and Murphy was one of the lawyers for the doctor and the hospital.

The article’s worth a look in case you missed it the first time around, and even if you caught it then but want to relive the magic. This thing got ugly. Some highlights:

“After Mr. Snyder found out, for the first time today, that I was being retained by the University of Maryland to be in this case, frankly he lost his cool,” Murphy told Baltimore City Circuit Court Judge Lynn Stewart, according to a transcript of the proceedings. “What he said to me was, in a voice loud enough for the defendant to hear … he said, ‘I’m going to tear him apart.’ And then he turned around and literally screamed at Dr. Zoarski, ‘I’m coming after you! I’m going to get you!’ And he said it several times.”

At one point, Snyder told Murphy in open court that he didn’t like him anymore. Eventually, the judge got beyond frustrated:

Finally, Judge Stewart had had enough.

“This is it. Last warning to everybody,” she said. “No finger-pointing, children. No stomping your feet. No screaming. No yelling. No dancing around. No calling names. No throwing sticks and stones. No putting gum in each other’s hair.”

Oooh, and let’s not forget what happened when the race card was played:

Snyder took particular offense to Murphy’s late appearance in the case, because Murphy and several members of his team are African-American, as was the judge and several jurors.

“I think it’s racially motivated,” he told the judge.

After hearing that, Murphy replied sarcastically to Snyder’s comment in court: “We’re just some colored lawyers. We’re not trying to hurt nobody.”

I wish I’d been there. Sounds like a journalist’s dream trial. But here’s the best part: After the trial ended in a defense summary judgment, Snyder told the Examiner reporter:

“Billy Murphy can take no comfort in the victory,” he says. “It will be very short-lived. I have no doubt that it will be reversed. In fact, I will quit law if it doesn’t get reversed.”

I’ve put a call in to Snyder to see if he wants to make good on that threat. No word yet.

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

The Supreme Court posed for a new portrait this morning, allowing the media to photograph them as a group. Listen, I know these folks handle the most important cases in the land and that sternness and gravity are pretty much job requirements. But would it kill them to smile?

I’m going to put aside the fact that they’re all looking in different directions, because there were clearly many cameras in the room. With that in mind, compare for a moment the various versions of today’s SCOTUS portrait with the official photo of Maryland’s Court of Appeals. With one exception (OK, one-and-a-half–Judge Murphy’s got a half-smile), these folks looks pleased as punch to be on the court and sitting/standing for this portrait. Chief Judge Bell looks downright jolly.

By contrast, only Chief Justice Roberts and new Justice Sotomayor (fresh off a few months when she was expected to smile on cue constantly) actually look happy in all the SCOTUS pictures. In one picture, Breyer is smiling, and in another, Scalia is half-smiling, half-smirking. Alito and Thomas look like they’d rather be at the dentist. Overall, the effect is a bunch of people who really hate being on camera. (Of course, they do. They famously don’t allow cameras in the courtroom during oral arguments, while our top court streams arguments live.)

What is it that makes our appellate judges so much happier-looking than those on the high court? My pet theory: it’s harder to glower when you’re wearing a bright red robe with a floppy white tie.

Photo courtesy of USA Today.

On the cover: With their progressive pilot potentially on the chopping block, the OPD’s Neighborhood Defenders in Park Heights are defending not only their clients but their problem-solving approach. Also, Caryn Tamber talks to University of Maryland law professor Danielle Citron about her research into online gender harassment and the law.

In the news: An EPA official says the agency wants more weapons in its arsenal; Maryland’s top court upholds a sex-abuse conviction based on the testimony of a 6-year-old victim; Mike’s Train House is sued for infringement; and an offshoot of the “driving while black” case will be the subject of a rare Court of Special Appeals en banc hearing.

 Also:

• Verdicts & Settlements features the case of an HIV-positive teacher who was fired from his job at a private elementary school in Arnold.

• Before there was “The Power of Nice” or his success as a sports agent, there was the Modern Bar Review Course. In My First/Business, Ron Shapiro reflects on the lessons learned from his initial foray into commerce.

• In Opinion/Commentary, Jack L.B. Gohn weighs in on the narrowing difference between blogs and journalism, while Edward J. Levin points out a key requirement under a Maryland deed of trust: naming an individual as the trustee. 

• Catch up with our Week in Review and the Law Digest, this week with cases from the Maryland Court of Appeals, Court of Special Appeals and the Office of Administrative Hearings.

ON THE COVER: Top court returns — The Court of Appeals begins its September 2009 term this week. The high court will hear cases addressing the cap on non-economic damages, legal malpractice and whether a truck driver can be guilty of vehicular manslaughter for leaving the scene of a gravel spill from his truck.

Also on the Court of Appeals — the judges recall their summer break; columnist Chris Brown ranks last year’s votes; and plaintiffs’ lawyers Henry E. Dugan Jr. and George S. Tolley III explain the importance of last term’s landmark informed-consent decision.

In Breaking News, Baltimore City Councilwoman Helen L. Holton fights new charges; an immigration lawyer is disbarred after pleading guilty to fraud; and an attorney owes fees for having filed suit without sufficient justification.

In Verdicts & Settlements, a motorcyclist receives $200,000 in damages after colliding with a hand truck that fell from a passing box truck.

U.S. District Magisitrate Judge Charles B. Day of Greenbelt has no plans to take it easy after stepping down from the Federal Magistrate Judges Association after a decade in senior posts at the group.

Stay up-to-date with our Law Digest, which includes cases from the U.S. 4th Circuit Court of Appeals and the U.S. District Court, Maryland.

The Supreme Court will be packed for Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia A. Davis when they argue the case of Maryland v. Shatzer before the justices.

The draw will not be the case itself, though it does present an intriguing right to counsel issue. Nor will most of the public be enticed primarily by the participants (with apologies to Mr. Gansler and Ms. Davis).

No, the attraction will be the date of the high-court showdown: Oct. 5, the first Monday in October. Not only will the day mark the opening of the Supreme Court’s 2009-2010 term but also, presumably, the first day on the bench for Sonia Sotomayor, President Barack Obama’s nominee to succeed former Justice David H. Souter, who retired this summer.

A Senate vote on Sotomayor’s anticipated confirmation is expected within the next few weeks.

Maryland v. Shatzer is scheduled to be the second case argued on that historic day.

In Shatzer, the state is appealing a Maryland Court of Appeals decision that threw out an accused child molester’s conviction because police questioned him nearly three years after he first requested an attorney. The Maryland court said the time span did not vitiate Michael Blaine Shatzer Sr.’s invocation of his right to counsel, and that police, years later, were barred from questioning him until an attorney was provided.

With the Court of Appeals on its summer break, I will have no more chances for a while to keep tabs on the annotations in Judge Glenn T. Harrell’s opinions.

Fortunately, I was alerted by Assistant Legal Editor Christina Doran of a U.S. District Court judge in Philadelphia who picked up the slack. Judge Michael M. Baylson wrote an opinion last month in a lawsuit involving the Arena Football League’s Philadelphia Soul and a former employee.

The Soul are partially owned by Jon Bongiovi - better known as Jon Bon Jovi, better known as the lead singer of Bon Jovi. That led Baylson to reference five Bon Jovi songs and multiple football terms in his first two and last paragraphs of the opinion. Sample sentence: “[T]he Philadelphia Soul… rose in a ‘Blaze of Glory’ to win the 2008… Arena Bowl and then was ‘Shot Through The Heart’ when its 2009 season was canceled by the League due to financial problems.”

Baylson thanked his law clerk in a footnote for helping with the Bon Jovi song titles. It should be noted, however, that “Shot Through the Heart” is popularly misidentified as the title of a song actually called “You Give Love A Bad Name.”

“Have A Nice Day” (and holiday weekend!).

HT: QuizLaw (second post down from June 30).

I did not know The Pretenders had a song called “Brass in Pocket” until last week. Sure, I’d heard the song, where lead singer Chrissie Hynde vows to woo a gentleman using various body parts and inanimate objects. (I also remember the ’80s music video where Hynde plays a waitress.) 

But I learned the song title, naturally, from the latest opinion by Judge Glenn T. Harrell Jr. of the Court of Appeals. As my colleague Steve Lash reports in today’s paper, the case decided whether Harford County police unreasonably conducted a search-and-seizure of a car. Officers stopped the car in part because the driver, Garry Dennis Crosby Jr. was “slumped down” as he drove.

In his brief, Crosby said he was using a “Detroit Lean” while he was driving and pointed to a definition in Urban Dictionary: “driving with one hand on the wheel while slouched over to the right.”

Harrell, in a footnote, said an “independent endeavor to determine whether such a phenomenon exists” led to the Pretenders’ song, which he quoted:

Got motion, restrained emotion

I been driving, Detroit Leaning

No reason, just seems so pleasing

Gonna make you, make you, make you notice

“As the song predicts, Crosby’s ‘Detroit Leaning,’ if that is what he was doing, succeeded in getting him noticed,” Harrell concluded in his footnote.

I’m not particularly shocked by Justice Ruth Bader Ginsburg’s statements in a USA Today story today about how her own colleagues sometimes don’t pay her the respect she deserves, but I am disappointed.

USA Today Supreme Court reporter Joan Biskupic writes:

Ginsburg, 76, a former women’s rights advocate whom President Clinton named to the high court in 1993, recalled that as a young, female lawyer her voice often was ignored by male peers. “I don’t know how many meetings I attended in the ’60s and the ’70s, where I would say something, and I thought it was a pretty good idea. … Then somebody else would say exactly what I said. Then people would become alert to it, respond to it.”

Even after 16 years as a justice, she said, that still sometimes occurs. “It can happen even in the conferences in the court. When I will say something — and I don’t think I’m a confused speaker — and it isn’t until somebody else says it that everyone will focus on the point.”

Sad.

In the interviews for the story, conducted before Ginsburg’s colleague David Souter announced his retirement, Ginsburg also says:

“Women belong in all places where decisions are being made. I don’t say (the split) should be 50-50. It could be 60% men, 40% women, or the other way around. It shouldn’t be that women are the exception.”

So here’s my question: most court-watchers seem to be convinced that the president will nominate a woman to replace Souter. And if Ginsburg leaves the court during Obama’s presidency (the 76-year-old justice has pancreatic cancer but wants to continue to serve), I’d guess Obama would nominate another woman to fill her seat. (Otherwise, we’d be right back at 1 of 9.) But what if Obama gets the chance to nominate a replacement for one of the sitting male justices? We’ve already had 2 of 9 when Ginsburg and Sandra Day O’Connor were both on the court. Shall we go for 3 of 9?

What are the odds?

HT: How Appealing

I’ve admittedly been a slacker in my announced effort to track the annotations of Judge Glenn T. Harrell Jr. in his written opinions for the Court of Appeals.

Then Harrell himself provided just the jolt I needed last week in his opinion concerning the validity of a three-judge panel’s ruling when one of the judges dies before the decision is issued, which I wrote about in today’s paper.

It’s right in the first sentence: “With the filing of this opinion, this Court will have completed a ‘Goldilocks’ trilogy,” a reference to two prior cases also dealing with the proper amount of judges needed for a proceeding. The footnote cites a folklore dictionary.

Thus inspired, I reviewed Harrell’s other decisions from this year. A March 12 opinion concering real property ownership begins, “This fracas over lebensraum.“ The German word means “living space” but, as a concept, is most closely associated with Hitler’s plan to expand Germany’s borders under the Third Reich.

In the same opinion, Harrell uses the word “demurrer,” defining it in a footnote for “our newer generations of lawyers” because the term is no longer part of pleading requirements in the state.

That’s all for now. Stay tuned for more updates — provided I don’t forget again.