Appellate Practice
We lawyers still cite cases on behalf of our clients that were decided in the 1800's - which means that in 200 years the work we do today will still be changing lives.
Our Appellate Work
At trial, lawyers and even judges are bound by what the law is, but appellate lawyers have the luxury of considering what the law should be. Every appeal is an opportunity to legislate by force, changing public policy without political compromise. A careful lawyer with a little skill and the right clients by his side can reshape the law and leave the world a better place.
Cary Hansel has received more than 20 reported decisions and arguing many other appeals. That experience has included the opportunity to represent a number of public interest groups in filing pro bono amicus curiae briefs in high-impact appeals. A partial list of Cary's reported cases can be found in his biography, accessible by clicking on his photograph below.
For over a decade, Cary authored "Appellate Watch," a column for Trial Reporter magazine. This experience required Cary to review every brief filed in the Court of Special Appeals in order to select a handful of issues worthy of sharing with trial lawyers across our state. Cary has also served on the Appellate Practices Committee of the Maryland State Bar Association.
Ashton Zylstra's appellate career includes defeating immunities and fighting racism in Maryland's highest court and the United States Court of Appeals for the Fourth Circuit. Learn more about Ashton's work from her biography by clicking on her photograph below.
At the bottom of this page is a link to actual video and audio of the firm's work in the courtroom, including appellate arguments delivered by Ashton and Cary.
For over a decade, Cary authored "Appellate Watch," a column for Trial Reporter magazine. This experience required Cary to review every brief filed in the Court of Special Appeals in order to select a handful of issues worthy of sharing with trial lawyers across our state. Cary has also served on the Appellate Practices Committee of the Maryland State Bar Association.
Ashton Zylstra's appellate career includes defeating immunities and fighting racism in Maryland's highest court and the United States Court of Appeals for the Fourth Circuit. Learn more about Ashton's work from her biography by clicking on her photograph below.
At the bottom of this page is a link to actual video and audio of the firm's work in the courtroom, including appellate arguments delivered by Ashton and Cary.
Revolutionizing Civil Rights Law...
By Cary Hansel
I had the privilege of handling the case in which the Court of Appeals first allowed recovery for a pattern or practice of unconstitutional misconduct. We were also able to defeat the $200,000 cap ordinarily applicable to civil rights claims.
Our client ultimately collected more than $7.5 million, a figure the Washington Post called the highest civil rights award ever against Prince George's County. Those familiar with the county's abysmal civil rights record will appreciate the significance of this claim.
The case involved an innocent man deprived of sleep and sufficient food for almost two days, periodically chained to a wall and threatened by police – all because he wouldn't confess to the murder of his wife, a crime he did not commit. Despite recording in his police log that my client had continued to maintain his innocence, an officer falsely swore that he had obtained a confession.
The resulting charges cost my client 8 months in jail. During this time, the falsely accused man missed his wife's funeral and was evicted from his apartment. All of his belongings were strewn out on the curb and taken by looters.
The jury found that the officers acted with malice when, three months into the incarceration, they ignored DNA evidence clearing the accused of the crime. Only when another detective insisted on testing the DNA against a serial rapist she had helped apprehend were the officers forced to slowly admit their mistake.
The long-toiling, 48-year-old iron worker they had wrongly imprisoned was released, but had lost literally every possession except for the clothes on his back despite half a lifetime of hard labor.
To make matters even worse, there was evidence that the officers ignored early in the investigation that should have led them to the true killer. When police stopped investigating based on the false claim that they had their man, the real killer went on, while no one was watching, to rape six other women for which he was convicted. This case shows the true victims of police misconduct are not just those immediately suffering the abuse, but all of us.
The court's willingness to adopt the new cause of action we urged changed the practice of civil rights law in Maryland. For the first time, victims of systemic abuses can bring prior examples of the unconstitutional treatment of others to light in Maryland courts. This raises the stakes significantly for jurisdictions with historic problems. Our goal is to make civil rights violations so costly for the government that they no longer occur. This case is a powerful tool for exacting a high price from the most abusive agencies.
The case involved an innocent man deprived of sleep and sufficient food for almost two days, periodically chained to a wall and threatened by police – all because he wouldn't confess to the murder of his wife, a crime he did not commit. Despite recording in his police log that my client had continued to maintain his innocence, an officer falsely swore that he had obtained a confession.
The resulting charges cost my client 8 months in jail. During this time, the falsely accused man missed his wife's funeral and was evicted from his apartment. All of his belongings were strewn out on the curb and taken by looters.
The jury found that the officers acted with malice when, three months into the incarceration, they ignored DNA evidence clearing the accused of the crime. Only when another detective insisted on testing the DNA against a serial rapist she had helped apprehend were the officers forced to slowly admit their mistake.
The long-toiling, 48-year-old iron worker they had wrongly imprisoned was released, but had lost literally every possession except for the clothes on his back despite half a lifetime of hard labor.
To make matters even worse, there was evidence that the officers ignored early in the investigation that should have led them to the true killer. When police stopped investigating based on the false claim that they had their man, the real killer went on, while no one was watching, to rape six other women for which he was convicted. This case shows the true victims of police misconduct are not just those immediately suffering the abuse, but all of us.
The court's willingness to adopt the new cause of action we urged changed the practice of civil rights law in Maryland. For the first time, victims of systemic abuses can bring prior examples of the unconstitutional treatment of others to light in Maryland courts. This raises the stakes significantly for jurisdictions with historic problems. Our goal is to make civil rights violations so costly for the government that they no longer occur. This case is a powerful tool for exacting a high price from the most abusive agencies.
protecting children and their caregivers from government overreach...
By Ashton Zylstra
Children are some of the most vulnerable members of our society—and foster children with special needs and their foster parents even more so. Departments of social services work diligently to protect the interests of the most vulnerable, but they are susceptible to overreach just like any other governmental organization. In those situations, vulnerable families need other advocates to step up and move forward and speak when they cannot.
In 2019, I had the privilege of representing a foster mother who had cared for over seventy foster children. She cared for the most vulnerable and disadvantaged; her last foster child was a teenage nonverbal autistic special needs child requiring round-the-clock care.
One afternoon, while our client was bathing the child, she noticed bruises on the child’s arm. When the Department of Social Services investigated, they found a few bite marks on the child’s body. The Department made no effort to determine where the child had received the injuries, or when, despite there being numerous possibilities: at the child’s biological parents’ home, as the child visited her parents every weekend; on the child’s bus ride to school, where she rode with other individuals with disabilities of ages ranging from five to nineteen; or at school, where the child was part of a special class for children with disabilities.
Instead of making any attempt to determine what had happened and protect the vulnerable, nonverbal child, the Department instead simply pointed the finger at our client. By the time she came through our door, our client had already lost the administrative proceeding that stripped her of her ability to care for foster children and the first appeal of the Administrative Law Judge’s decision to the circuit court.
It did not take long to page through the case file, look at the “evidence” the Department claimed made its case, and realize that the Department made no effort at all to find out what happened and had no reason to believe that the child had ever received anything other than the best care while in our client’s care and custody.
In our briefing, we pointed out to the Court of Special Appeals that the Department had no evidence at all that our client had ever done anything to place the child at a substantial risk of harm. Holding our client responsible and depriving her of her ability to care for foster children as a result would mean that the Department was holding foster parents strictly liable for all harms suffered by any foster child—whether it occurred while the child was in the foster parent’s custody or not. This is an untenable standard: no matter how we wish it could be otherwise, it is simply impossible for every parent to protect every child from every harm, regardless of where the harm occurs.
The Court of Special Appeals agreed, reversing the decision of the Administrative Law Judge. As the Court noted in its decision, “[t]o hold a caregiver responsible for indicated neglect because of harm to her charge—without evidence supporting a finding that the caregiver failed to provide proper care and attention which led to harm or a substantial risk of harm—would effectively turn caregivers into absolute insurers of their child’s wellbeing, an impossible standard.”
Special needs foster children need good, loving homes with adults capable of caring for their needs. Good foster parents equipped to handle significant special needs requiring around-the-clock care are few and far between. This case protects foster mothers and the foster children that desperately need their care by ensuring that departments of social services cannot capriciously seize children and strip foster mothers of their ability to foster simply because the child suffered an injury while outside the mother’s care and custody.
The case is Davis v. Prince George's Cnty. Dep't of Soc. Servs., No. 619, Sept. Term,2019, 2020 WL 5758014 (Md. Ct. Spec. App. Sept. 28, 2020).
One afternoon, while our client was bathing the child, she noticed bruises on the child’s arm. When the Department of Social Services investigated, they found a few bite marks on the child’s body. The Department made no effort to determine where the child had received the injuries, or when, despite there being numerous possibilities: at the child’s biological parents’ home, as the child visited her parents every weekend; on the child’s bus ride to school, where she rode with other individuals with disabilities of ages ranging from five to nineteen; or at school, where the child was part of a special class for children with disabilities.
Instead of making any attempt to determine what had happened and protect the vulnerable, nonverbal child, the Department instead simply pointed the finger at our client. By the time she came through our door, our client had already lost the administrative proceeding that stripped her of her ability to care for foster children and the first appeal of the Administrative Law Judge’s decision to the circuit court.
It did not take long to page through the case file, look at the “evidence” the Department claimed made its case, and realize that the Department made no effort at all to find out what happened and had no reason to believe that the child had ever received anything other than the best care while in our client’s care and custody.
In our briefing, we pointed out to the Court of Special Appeals that the Department had no evidence at all that our client had ever done anything to place the child at a substantial risk of harm. Holding our client responsible and depriving her of her ability to care for foster children as a result would mean that the Department was holding foster parents strictly liable for all harms suffered by any foster child—whether it occurred while the child was in the foster parent’s custody or not. This is an untenable standard: no matter how we wish it could be otherwise, it is simply impossible for every parent to protect every child from every harm, regardless of where the harm occurs.
The Court of Special Appeals agreed, reversing the decision of the Administrative Law Judge. As the Court noted in its decision, “[t]o hold a caregiver responsible for indicated neglect because of harm to her charge—without evidence supporting a finding that the caregiver failed to provide proper care and attention which led to harm or a substantial risk of harm—would effectively turn caregivers into absolute insurers of their child’s wellbeing, an impossible standard.”
Special needs foster children need good, loving homes with adults capable of caring for their needs. Good foster parents equipped to handle significant special needs requiring around-the-clock care are few and far between. This case protects foster mothers and the foster children that desperately need their care by ensuring that departments of social services cannot capriciously seize children and strip foster mothers of their ability to foster simply because the child suffered an injury while outside the mother’s care and custody.
The case is Davis v. Prince George's Cnty. Dep't of Soc. Servs., No. 619, Sept. Term,2019, 2020 WL 5758014 (Md. Ct. Spec. App. Sept. 28, 2020).
Accidently on purpose...
By Cary Hansel
I argued my first appeal before Maryland's highest court within months of being sworn in to the Bar. I hadn't been a lawyer long enough to have demonstrated any particular worthiness for such an honor. But I soon realized that I got the assignment because no one else wanted to argue what they thought was an obvious loser. Three different judges had already ruled against us.
Worse still, the argument to be made seemed nearly hopeless: I was asked to persuade the high court to permit my client to recover under an automobile accident insurance policy for a woman who was intentionally shot and killed by an assailant while she sat alone in the passenger seat of a parked car.
While preparing, I thought it was odd that the key term in the policy – accident – was left undefined by the insurance company. On a hunch, I tracked down briefs the company had filed in courts across the country to see how their own lawyers had defined accident in other cases. The pattern I was hoping to find soon emerged.
The company left its own terms undefined so they could apply different, often conflicting, definitions in different circumstances. The one thing that wasn’t different was their goal: denying coverage.
It wasn't long before I found a brief filed by the insurer in which the insurance company had argued that the key term meant the exact opposite of what the company was now suggesting to the Maryland court. In a prior case, the company had asserted that an "accident" was an unforeseen occurrence from the perspective of the insured.
All I had to do then was ask the Maryland court to adopt the insurance company’s own definition – from the prior case. The shooting was clearly an unforeseen occurrence from the perspective of the insured victim. Applying this definition – from the insurance company's own out-of-state brief – the intentional murder was an "accident."
After the inconsistency came to light, the insurance company was rebuked in the court's opinion for its "interpretation du jour" and the court ruled for us.
A colleague who read the case once mistakenly congratulated me for winning it through what he supposed was some combination of intuition and creativity. I was quick to tell him that I didn't win the case, the insurance company lost it due to its own hubris.
While preparing, I thought it was odd that the key term in the policy – accident – was left undefined by the insurance company. On a hunch, I tracked down briefs the company had filed in courts across the country to see how their own lawyers had defined accident in other cases. The pattern I was hoping to find soon emerged.
The company left its own terms undefined so they could apply different, often conflicting, definitions in different circumstances. The one thing that wasn’t different was their goal: denying coverage.
It wasn't long before I found a brief filed by the insurer in which the insurance company had argued that the key term meant the exact opposite of what the company was now suggesting to the Maryland court. In a prior case, the company had asserted that an "accident" was an unforeseen occurrence from the perspective of the insured.
All I had to do then was ask the Maryland court to adopt the insurance company’s own definition – from the prior case. The shooting was clearly an unforeseen occurrence from the perspective of the insured victim. Applying this definition – from the insurance company's own out-of-state brief – the intentional murder was an "accident."
After the inconsistency came to light, the insurance company was rebuked in the court's opinion for its "interpretation du jour" and the court ruled for us.
A colleague who read the case once mistakenly congratulated me for winning it through what he supposed was some combination of intuition and creativity. I was quick to tell him that I didn't win the case, the insurance company lost it due to its own hubris.
Forging New Paths To Protect Workers From Discrimination...
By Ashton Zylstra
In recent decades, our society has gone through significant and rapid social and political change. Social customs, norms, and behaviors have changed and developed over time. In many ways, our society has taken great strides forward—in other ways, we have continued to stagnate.
As our society has changed, the way that people discriminate against others has also changed. In the workplace, it is much less frequent nowadays to see a colleague or supervisor discriminate against an employee by routinely using racial slurs, forcing unwanted sexual contact, or otherwise acting so overtly that the discriminatory behavior is plain to see. Instead, discrimination has become a consistent pattern of negative conduct over time that is much more subtle—but still arises out of that person’s dislike of the employee’s race, gender, sexual orientation, or religion.
The law has not yet caught up with this change. The legal standard for a hostile work environment claim requires a plaintiff to demonstrate that the discriminatory conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.” Courts, especially in the Fourth Circuit, have been uninclined to find that this standard has been met where discriminatory conduct is more subtle than screaming slurs.
In our continuing efforts to change the law and provide greater protections for workers subjected to discrimination, we had the opportunity to represent a government employee that had been discriminated against for years by his supervisor because of his race. He was subjected to a discriminatory pattern of conduct in which his supervisor segregated him from his white colleagues by always assigning him his tasks last, giving him the most dangerous assignments to work alone, failing to call him for overtime opportunities, and directing him to operate unsafe machinery.
Because of the Fourth Circuit’s outdated view of discrimination in the workplace, we knew that this would be a tough case to litigate but one that could make strides forwards towards enlarging protections for workers against racial discrimination. On appeal, the Fourth Circuit again refused to recognize this form of discrimination, concluding erroneously that most of the conduct was not racially-motivated, even though the supervisor only acted in such a way around our client—the only Black employee on the team.
This case demonstrates the continued misguided notion in the Fourth Circuit and the United States District Court for the District of Maryland that a supervisor’s conduct is not racially motivated unless there are overt signs of discriminatory intent like shouted racial slurs. This is simply not how supervisors discriminate in modern times—rather, they discriminate in such a way that they can chalk it up to “communication issues” as our client’s supervisor did in this case.
But even though we lost on this occasion, we continue to move the needle forward step by step, pushing back against these outdated notions of discriminatory conduct to provide safer environments for employees of all races, genders, sexual orientations, and religions. We all are looking forward to the day when the courts agree and recognize that yes, always assigning the Black man to perform dangerous tasks with very real risks of severe injury and never assigning any white team members to do the same is discrimination based on race.
The case is Brown v. Bratton, No. 21-1998, 2022 WL 17336572 (4th Cir. Nov. 30, 2022).
The law has not yet caught up with this change. The legal standard for a hostile work environment claim requires a plaintiff to demonstrate that the discriminatory conduct was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.” Courts, especially in the Fourth Circuit, have been uninclined to find that this standard has been met where discriminatory conduct is more subtle than screaming slurs.
In our continuing efforts to change the law and provide greater protections for workers subjected to discrimination, we had the opportunity to represent a government employee that had been discriminated against for years by his supervisor because of his race. He was subjected to a discriminatory pattern of conduct in which his supervisor segregated him from his white colleagues by always assigning him his tasks last, giving him the most dangerous assignments to work alone, failing to call him for overtime opportunities, and directing him to operate unsafe machinery.
Because of the Fourth Circuit’s outdated view of discrimination in the workplace, we knew that this would be a tough case to litigate but one that could make strides forwards towards enlarging protections for workers against racial discrimination. On appeal, the Fourth Circuit again refused to recognize this form of discrimination, concluding erroneously that most of the conduct was not racially-motivated, even though the supervisor only acted in such a way around our client—the only Black employee on the team.
This case demonstrates the continued misguided notion in the Fourth Circuit and the United States District Court for the District of Maryland that a supervisor’s conduct is not racially motivated unless there are overt signs of discriminatory intent like shouted racial slurs. This is simply not how supervisors discriminate in modern times—rather, they discriminate in such a way that they can chalk it up to “communication issues” as our client’s supervisor did in this case.
But even though we lost on this occasion, we continue to move the needle forward step by step, pushing back against these outdated notions of discriminatory conduct to provide safer environments for employees of all races, genders, sexual orientations, and religions. We all are looking forward to the day when the courts agree and recognize that yes, always assigning the Black man to perform dangerous tasks with very real risks of severe injury and never assigning any white team members to do the same is discrimination based on race.
The case is Brown v. Bratton, No. 21-1998, 2022 WL 17336572 (4th Cir. Nov. 30, 2022).
