What attracts many lawyers to appellate practice—besides an unusual appetite for legal writing and a general distaste for contentious discovery—is the confidence that fire drills and surprises rarely occur. Appellate briefing deadlines and oral arguments are normally set months in advance, and extensions are liberally granted. Appellate lawyers often seem to be nicer (albeit nerdier) people. And everyone on appeal is bound by the trial-court record. No juries and no witnesses. Just the lawyers and a panel of judges applying the law to the settled facts on record.
This dynamic of unharried research and rules-driven deliberation often yields superior legal analysis, not because appellate lawyers are smarter than other litigators but because they usually have the time to reflect on an issue and get it right. They also know that opposing counsel and reviewing judges will have time to carefully consider whatever they write and say. Any missteps or misrepresentations will most likely be noticed and exposed.
Haste makes waste. This fundamental truth of appellate practice collides with the frenetic world of trial-court practice when a verdict is returned and judgment entered and the losing party wants to move for a new trial or JNOV. Until 2009, Federal Rule of Civil Procedure 59, and Maryland Rule 2-533(a), which is derived from Rule 59, each allowed parties a mere ten days after entry of judgment to file their post-trial motions.
In 2009, the Federal Rule was amended to extend the ten-day period to 28 days. The Rules Committee bluntly explained why it made the change: “Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays.” 2009 Amendment, Advisory committee note.
For appellate lawyers, who often learn that they have an appellate matter only after the verdict is returned, 28 days can feel quite rushed. But ten days can be brutal. Maryland appellate lawyers are often left to the serendipity of whether a judgment is entered on a Monday or Tuesday, leaving only one weekend to complete the post-trial motions, versus Wednesday, Thursday or Friday, which allows a second full weekend to prepare before a Monday filing deadline. Also serendipitous is whether the trial judge and court clerk enter the judgment on the online docket on the same day that the verdict is returned or whether days—even weeks—pass before formal entry of judgment starts the ten-day clock.
Because Maryland Rule 2-533 is derived from Federal Rule 59, I cannot fathom that Maryland retains some principled reason to keep the ten-day deadline for post-trial motions more than a decade after the federal courts have moved to a 28-day deadline with no apparent regrets. I strongly suspect that the experience in Maryland’s trial courts has—like that in the federal courts—proved that it is often “not possible to prepare a satisfactory post-judgment motion” in only ten days.
Because preservation of appellate issues is top of mind when filing post-trial motions, the briefs already tend to be over-inclusive. A tight deadline, perhaps counter-intuitively, makes these briefs even longer by denying counsel the time to prune away weaker arguments because they have not yet had the time to realize that the argument would not be advanced on appeal. On a ten-day fire drill, briefs may contain half-baked argument that would not have made it into a brief due four full weeks after entry of judgment. It would seem in everyone’s best interest to emulate Federal Rule 59 and amend Maryland Rule 2-533 to allow 28 day to file post-trial motions.
NOTES:
Rule 2-533 – Motion for New Trial
(a)Time for Filing. Any party may file a motion for new trial within ten days after entry of judgment. A party whose verdict has been set aside on a motion for judgment notwithstanding the verdict or a party whose judgment has been amended on a motion to amend the judgment may file a motion for new trial within ten days after entry of the judgment notwithstanding the verdict or the amended judgment. A motion for new trial filed after the announcement or signing by the trial court of a judgment or the return of a verdict but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.
This Rule is derived as follows:
Section (a) is derived in part from the 1966 version of Fed. R. Civ. P. 59(b) and is in part new. It replaces former Rules 567 a and 690.
Committee Notes on Rules—2009 Amendment
Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period.
Former Rule 59(c) set a 10-day period after being served with a motion for new trial to file opposing affidavits. It also provided that the period could be extended for up to 20 days for good cause or by stipulation. The apparent 20-day limit on extending the time to file opposing affidavits seemed to conflict with the Rule 6(b) authority to extend time without any specific limit. This tension between the two rules may have been inadvertent. It is resolved by deleting the former Rule 59(c) limit. Rule 6(b) governs. The underlying 10-day period was extended to 14 days to reflect the change in the Rule 6(a) method for computing periods of less than 11 days.
Changes Made after Publication and Comment. The 30-day period proposed in the August 2007 publication is shortened to 28 days.
Derek Stikeleather is Chair of Goodell DeVries's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims. He can be reached at dstikeleather@gdldlaw.com.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.
