By Michael J. Winkelman

Access Denied

“Access to justice” is a favorite refrain of courts and legislators in Maryland.  I, like my MAJ colleagues, have a deep commitment and belief in access to justice.  My entire professional career has been devoted to the ideals of access to justice.  Why, then, do I cringe every time I hear the phrase “access to justice” in Maryland?

Experience.  Experience has informed me while Maryland courts routinely espouse a commitment to access to justice, their actions frequently belie this commitment.  Time and again, when faced with a choice between increasing or decreasing access to justice, the latter option is selected.  This special edition seeks to elucidate how access to justice is routinely denied to civil litigants in Maryland, and start a discussion on Maryland’s commitment to access to justice for all citizens.  

The Maryland Access to Justice Commission, formed in 2008, defined its mission as follows:

By bringing together leaders and stakeholders from the Maryland Judiciary and its justice system partners, the Commission gives meaningful voice to the public whose interest it serves. Therefore . . . the Commission shall develop, consolidate, coordinate and/or implement initiatives designed to, and which are consistent with the Judiciary’s policy to expand access to, and enhance the quality of, civil justice for persons who encounter barriers in gaining access to Maryland’s civil justice system.

The Chair, Judge Irma S. Raker (Ret.), Court of Appeals of Maryland, explained the Commission was established to, “...improve access to the courts and to legal help for the most vulnerable Marylanders.”  Maryland Access to Justice Commission, Annual Report 2010, Letter from the Chair, Hon. Irma S. Raker, Judge (Ret.), Court of Appeals of Maryland.  “Access to justice means all Marylanders can benefit from the rights, protections, services and opportunities that the law and the legal system provide.” Id. page 3.

Despite this pronounced commitment to access to justice, Maryland is failing to deliver.  A 2016 study by several academics, including the former Dean of the University of Maryland School of Law, Donald Gifford, developed a methodology to calculate each state’s Jury Access Denial Index (JADI)[1].  Each state’s JADI quantifies the extent to which the tort law of that state impedes a plaintiff’s access to the jury compared with the tort law of other states.  Maryland had the second highest JADI score.  Stated another way, Maryland was second to last in providing access to justice to its residents.  Importantly, this study was conducted before Maryland switched to the Daubert standard, which would have added significantly to Maryland’s JADI score according to the utilized methodology.  This is not plaintiff’s attorneys kvetching about the status of Maryland law, these are the finding of objective third party academics.

The constitutional foundation for access to justice in Maryland is found in Article 19 of the Maryland Declaration of Rights, which provides, “every man, for any injury done to him in his person or property, ought to have remedy by the court of the Law of the Land.”  Two pieces in this special edition discuss Article 19, and how the courts have treated this constitutional “guarantee.”  The first discusses Article 19, its purpose, and how it has been restricted by Maryland appellate courts over the last twenty years, thus severely limiting this guaranteed right.  The second article discusses the recent holding in Ledford v. Jenway Contr., Inc., where the Maryland Supreme Court, in a 4-3 decision, determined it was not violative of Article 19 to provide no civil remedy to a woman whose father died in a work accident, thus leaving her, and others similarly situated, with no access to justice.

Another article discusses the recent appellate decision which vacated a $34.7 million jury verdict awarded to a brain injured child.  The article examines the novel theories used to obviate the jury verdict.  This is the most recent decision by Maryland appellate courts who have created an artificial  “access to justice” barrier when a jury returns an eight figure or higher jury verdict in favor of an injured tort victim.  See ex., Byrom v. Johns Hopkins Bayview (vacating $229 million verdict); Martinez v. Johns Hopkins Hospital (vacating $55 million verdict); Exxon Mobil Corp. v Ford (vacating $147 million verdict). 

This edition also discusses Maryland’s adoption of the  Daubert standard, and how application of this standard has impaired access to justice in federal courts.  Another article discusses the on again, off again access to justice for victims of child sexual abuse in Maryland, who are continually traumatized by a system which caused their harm, created a remedy, and then changed that remedy severely implicating both access to justice and rule of law issues. 

But not everyone loses when access to justice is restricted.  One article in this special editions details how insurance company profits hit records levels in recent years.  As with all cause and effect analysis, when one side goes down, the other side goes up.  When access to justice is limited, corporate liabilities are also limited, and profits skyrocket.  The data is compelling.

All of this is not to say Maryland has abandoned access to justice in civil matters.  To be sure, the Maryland Access to Justice Commission and the Maryland Legal Aid Services do great work to protect access to justice for many civil litigants.  Their work is largely in the area of landlord tenant issues, an important base protection of the civil justice system.  This is but one of many areas where civil access to justice is real in Maryland.

But, the Access to Justice Commission sought to, “improve access to the courts and to legal help for the most vulnerable Marylanders,” not just those seeking landlord tenant issues.  The 19th Amendment does not limit access to justice to only certain civil cases.  The constitution does not guarantee access to justice for only select civil cases.  We need to consider if Maryland has created a disparate application of access to justice when comparing tort victims to other civil litigants. 

The purpose of this special edition is to educate, and bring light, to the many instances where Maryland has failed to provide access to justice for injured tort victims.  It will potentially allow the legal community to critically consider if Maryland’s courts and the legislature have expanded access to justice for all civil litigants since the creation of the Access to Justice Commission in 2008, or if their actions have only selectively increased access to justice for a portion of Marylanders, while at the same time denying access to justice for a larger and more vulnerable set of Marylanders.  We hope to begin that discussion in this special edition. 

Read the full Trial Reporter: Special Issue 2026.