Appeals and Appellate Practice

Our appellate practice evolved from Professor Warnken’s three decades of teaching and coaching appellate advocacy.

The Appellate Process

We handle direct appeals of right and discretionary appeals. Direct appeals include (1) appeals from a state Circuit Court to the Court of Special Appeals of Maryland, (2) appeals from a federal District Court to a federal Circuit Court, (3) appeals from a state administrative agency to a state Circuit Court, and (4) Motions for Reconsideration at all levels. Discretionary appeals include (1) Petitions for a Writ of Certiorari (and Briefs in Opposition) to the Supreme Court of the United States from (a) the Court of Appeals of Maryland or another state court of last resort, or (b) a federal Circuit Court; (2) Petitions for a Writ of Certiorari (and Answers) from the Court of Special Appeals of Maryland to the Court of Appeals of Maryland; and (3) Applications for Leave to Appeal from a state Circuit Court to the Court of Special Appeals of Maryland. In 90% of our appeals, we did not serve as trial counsel.

Direct appeals have one level, including (1) briefing (Appellant’s Brief and Reply Brief or Appellee’s Brief), (2) record extract (if a civil appeal), and (3) oral argument (if granted). Discretionary appeals have two levels. Level one includes a Petition for a Writ of Certiorari, Application for Leave to Appeal, or an Answer or Brief in Opposition. Level two, which applies if certiorari or the application is granted, includes the regular direct appeal process.

Appellate Experience in Both Criminal and Civil Appeals

In the last 17 years, we have handled (or provided advice for) more than 175 appeals, including more than 110 appellate briefs (and certiorari petitions and answers) and more than 55 appellate oral arguments. On two occasions, we argued two appeals on the same day, and won all four cases. In 1995, in Kulbicki v. State, the Court of Special Appeals of Maryland reversed a “life without parole” first degree murder conviction, and the case became the television movie “Double Jeopardy. In 2000, in Brown v. State, the Court of Appeals of Maryland reversed, 7-to-0, a “life without parole” first degree murder conviction. On remand, we conducted a 16-day trial and obtained a “not guilty” verdict on first degree murder.

On the civil side, in Seay v. General Motors, having not been trial counsel, we prevailed against General Motors 10-to-0 (3-to-0 in the Court of Special Appeals and 7-to-0 in the Court of Appeals of Maryland). In Pendleton v. State, an opinion is pending in the Court of Appeals of Maryland. Of that Court’s 160 appeals annually, about a dozen cases annually come to that Court, on the Court’s own motion, as the Court of Appeals “cherry picks” and takes the case away from the Court of Special Appeals. Twice before, when we represented the Appellee, the Court of Appeals took one of our cases away from the intermediate appellate court. Pendleton is the first time that the Court of Appeals took a case away from the Court of Special Appeals based on our Appellant’s Brief.

Supreme Court of the United States

The Supreme Court of the United States accepts about 85 cases a year. In 1996, the Court appointed Professor Byron L. Warnken as “counsel of record” in Maryland v. Wilson, opposing United States Attorney General Janet Reno and Maryland Attorney General J. Joseph Curran, Jr. In 1995, we participated in a successful Amicus Brief in Koon & Powell v. United States (“the Rodney King case”). In 1990, we prepared the Brief for Respondent in Maryland v. Craig, which prevailed 7-to-0 on remand to the Court of Appeals of Maryland. In 2001, we filed a Petition for a Writ of Certiorari in the Supreme Court, in Williams v. United States, addressing the constitutionality of mandatory federal sentencing guidelines. Our client was “Little Melvin” Williams, who is depicted in the movie “ Liberty Heights” and is an actor on “The Wire.” Although the Supreme Court denied certiorari, the Court later accepted the same issue, and the defendants prevailed, in the landmark cases of Booker and Fanfan.

Amicus Counsel

We have filed amicus (“friend of the court”) briefs in the Supreme Court of the United States (the Rodney King case), the Court of Appeals of Maryland (our side prevailed 4-to-3), and the Court of Special Appeals of Maryland (granted oral argument, which had not been granted to an amicus in more than a decade).

Working with Another Appellate Counsel

If another attorney is involved, we handle as much or as little of the case as is requested. This may include (1) handling the written and/or oral components of the pre-appeal, post-trial motions, (2) consulting on appellate procedure and strategy, (3) reviewing appellate opinions from direct appeals to evaluate their “cert. worthiness” for a discretionary appeal, (4) reviewing transcripts for issue identification and issue framing, (5) drafting appellate briefs and certiorari petitions and/or answers, (6) “mooting” attorneys prior to oral argument, (7) presenting appellate oral arguments, and/or (8) handling entire appeal.