Baltimore Injury Lawyer Blog

In the past I have written about why a law blog may not be for everyone.

Here is a great blog post examining four highly successful law blogs. Some tidbits from the article (found through Above the Law):

Blogging takes time. Four the four blogs profiled, the weekly time estimates are 2-3 hours, 5 hours, 5 hours, 3-10 hours.
It takes time (estimated as 52 posts or 1-2 years) before a blog will generate business, but when it does, it pays off.
Commitment and continuity are two required elements for a sucessful blog.
Any blog's success depends on the comittment and creativity of the author.

Keep in mind these are blogs authored by lawyers as an enhancement/marketing effort for existing law practices. I look at blogs differently when they themselves are the primary point of the endeavor or are a profit-making entity in their own right. For example, Above the Law or Overlawyered. I'm not sure where I would put SCOTUSblog, since it started out as marketing and blew up into the foremost media authority on the Supreme Court. Clearly, the time commitment to blogs like these is well outside the 2-10 hours a week for a typical law practice blog.

I have never tried to quantify the effect of this blog in terms of business generation. First, I am not certain there is a direct relationship between the two. Second, that isn't really why I do it anyway. I like to write. I hope that this blog contributes to the profession by sharing ideas, trial techniques, and new law, and that it provides a resource for the public by showing what is really involved in personal injury litigation.

Basically, blog because you like it and you want to. As with most things with that foundation, sucess will follow.

The obscenity trial I wrote about here is over. The trial judge dismissed the prosecution's case before it ever reached the jury. Some reports say that the jury would not have voted to convict anyway.

Judge Judy is pulling down $15 million a year for a show that lasts 22 minutes a day, exclusive of commericals.

I hate Judge Judy. People see her show and think it bears a resemblance to real court cases and real lawsuits, which it does not. And her behavior is flat-out unaceptable for a real judge.

It is generally a good thing when a law firm issues a press release and as a result gets mentioned in the newspaper. I mean, that's the idea right? A press release is designed to garner attention. But it's not nearly as good if the attention consists of the reporter making fun of the content of the release and the law firm's motive for issuing the release in the first place.

Here, the Baltimore Sun's Jay Hancock takes aim at a local law firm with a blog post titled "Bowie & Jensen: Look at us! We're suing Ne-Yo!"

Hancock's primary target is a paragraph in the release listing all of the various awards and accomplishments of the defendant in the suit, whom I gather is a pretty well-known R&B singer. Here's what Hancock thinks: "Bowie & Jensen has put out a news release that's less about the merits of the case and a lot more about the fact that they're suing a famous musician and want you to know it."

Hancock plays it fair by contacting the author of the release for comment. But before revealing the author's explanation, Hancock comes off the top rope with a foreign object: "Karen McGagh, who wrote the press release for Bowie & Jensen, disavows any and all intention to draw cheap attention to the firm by seeming to go googy-eyed over a rap-star legal opponent."

At this point, I think it's fair to say this release has not had the intended effect, unless you are of the school of thought that any publicity is good publicity.

As I discussed here, law firms need to be very careful when issuing any kind of press release. The key idea is that it needs to always be about the client and the case. After reading the whole news release, I think that is what they were going for. The error was in the execution. I'm not a big fan of pre-trial press releases. Win the case. Then issue a press release. But if you do one of these pre-trial, its not a bad idea to make it about your client, rather than how famous the guy you are suing is.

When a law firm's news release results in the need to deny trying "to draw cheap attention to the firm," maybe it is better to refrain from commenting until a favorable result is achieved.

On the other hand, this news release seems to have also resulted in much more favorable treatment from the Maryland Daily Record. There, Rachel Pryzgoda turns in a pretty even-handed news item about the case with quotes from counsel for both sides, without making fun of either. I guess no two reporters are alike.

Is anything obscene in Washington, D.C.? I guess we will find out.

No, this is not a politics post. Apparently, jury selection is underway in the first obscenity trial I have ever heard of in the Maryland/DC area.

An "adult video" producer has been charged with obscenity in the U.S. District Court for Washington, D.C. The charge is based upon some (really, really disgusting) adult movies that were produced and sold over the internet. If you have a "prurient interest" in exactly what the content was, you can go to the linked article (work safe from Law.com) and find out. I'm not summarizing it here because doing so would prove to Ron Miller that letting me write unedited was the bad idea some people predicted it would be.

There are a few things about this that grabbed my interest, beyond my shock that there is still such a thing as an obscenity prosecution.

First, this is a leftover case from the Bush administration. There was a much bigger focus on obscenity cases under the Bush administration than under Clinton. Yeah, I know. Insert joke here. Seriously, the article points out that under Bush 360 people were charged with obscenity, as opposed to half as many under Clinton.

The other odd thing is that this case is being prosecuted in D.C. at all. Think about it. You are a U.S. attorney. You would like to charge a dirty movie man with obscenity. Your potential defendant is selling these (really, really) dirty movies on the internet. The thing about the internet is that it goes everywhere. So naturally, you have an FBI agent in Washington, D.C. order the movies, and then you prosecute. Well, that seems to be what they did here, anyway. Being a plaintiff's lawyer, maybe forum shopping is just in my blood. Because if I were that U.S. attorney, I would have had those dirty movies purchased by an FBI agent located as deep in the Bible Belt as possible, and then prosecuted the case there, instead of in Sodom on the Potomac.

Why prosecute this case in liberal D.C. when it looks like venue would have been obtainable wherever the movies were purchased and shipped? Maybe there is a good explanation for this. If so, tell me. Because unless I am missing something, the venue selection here looks like a colossally dumb move.

In any event, I think the whole prosecution is a waste of all of our tax dollars. If this material is truly obscene and offensive to community standards, it is a self-correcting problem because if that were true nobody would buy it. Essentially, my position is that the First Amendment guarantees the right to produce and sell whatever immoral, offensive tripe people wish to buy and view, as long as it does not depict conduct which is itself illegal and as long as nobody is being hurt. Conversely, (and perhaps inconsistently) I believe it does not guarantee the right for religious whackjobs to use speech to disrupt soldiers' funerals and add to the misfortune of grieving families.

My prediction: The jury will say "Hey, this stuff isn't my bag, but I don't care what other people watch in the privacy of their homes."

Hot of the presses is a new "study" on "Tort Liability Costs for Small Business" from the U.S. Chamber of Commerce's tort reform propaganda ministry, the dubiously named "Institute for Legal Reform."

I found this through the efforts of Walter Olson at Overlawyered. I'm ambivalent about reading, and linking to, Walter's site. It's not that his site is no good. In fact, just the opposite. The site is outstanding, and is a fantastic resource for news about the legal system. Its just that Overlawyered is a wholly owned subsidiary of The Man, Inc. And you know how I feel about The Man. Nonetheless, I will continue giving credit where it is due.

The report itself is more of what I have come to expect from this source. It wears the sheep's clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:

"In a separate survey of small business executives in Maryland, 91% indicated that lawsuits filed against corporations are hurting Maryland’s business climate. Nearly six in 10 respondents to that survey said they have increased their costs, reduced services, or changed products they offer. Fourteen percent said they even considered closing their business as a result of a lawsuit."

The source? A survey commissioned by Maryland Citizens Against Lawsuit Abuse and the National Federation of Independent Businesses. Seriously? That is as credible as citing a survey of cows to support the conclusion that steak is a threat. A biased report from the U.S. Chamber trying to appear objective by citing "independent" sources like a poll by MDCALA. Luckily for the Chamber, in an era defined by the 30-second sound bite most consumers will never read the footnotes or ask if the sources used are credible.

I haven't gotten through the whole "report" yet. I am sure I will have more comments.

I try to be pretty upfront about the fact that I obviously have my own biases that I bring to the table on these isssues. Otherwise, nothing I say about it could be taken credibly. That is a big part of the problem I have with "studies" like this. There is never any acknowledgment of the inherent bias presented by the source.

So if you haven't been following me closely, I am not surprised that a report sponsored by the largest business group in the United States concludes that lawsuits against businesses are bad. Considering the source, no other conclusion was possible.

I am slowly getting back into my daily routine after concluding a long trial in the Circuit Court for Baltimore City.

Regular readers (assuming there are some) know that I usually provide a summary of my cases that go to trial, but I have to sit this one out. In lieu of my usual post-game wrapup, I offer the following: "The matter resolved in a manner mutually agreeable to the parties, beyond which I have no comment."

Sorry, curious readers. Maybe next time.

But that's OK. On to the next case. And I have some interesting things cooking: a trucking accident that caused a brain injury, a retained foreign body medical negligence case, and an appeal involving the scope of a trial court's authority to confirm an arbitration award, among others. So I won't run out of cool stuff to do.

As a bonus, here is a step into Bizzarro-world. In Shady Grove Orthopedic Assoc. v. Allstate, Justice Scalia writes an opinion in favor of a class of plaintiffs, allowing a class action to proceed in federal court despite a state law that arguably would bar the action. Scalia? Plaintiffs? Wierd, huh? Really, I think this has more to do with the scope of Congress' rules enabling statute and respecting precedent than anything else. But nonetheless, Scalia gives one to the good guys. HT to SCOTUSblog.

Even more bizarre is the makeup of the majority: Scalia, Roberts, Stevens, Thomas and Sotomayor(?) Strange bedfellows indeed.

I have been away from the blog because I have been wrapped up preparing for a five-day trial in a product liability case that begins Monday.

So the blog will be on hiatus until the trial is over.

But I won't forget about you. See you in a week or so!

By way of full disclosure, readers should be aware that I have a man-crush on U.S. Rep. Bruce Braley.

Here's the deal. Braley is a former president of the Iowa Association for Justice, and despite that, won election to Congress. I am also an evil, greedy trial lawyer, and I happen to sit on the board of the Maryland Association for Justice. We recently held our annual Installation Gala recognizing our immediate past president Kevin Goldberg and honoring our new president, Robert Zarbin. Congressman Braley was our keynote speaker.

As part of Braley's talk, he played to us this clip of bad people shouting "trial lawyer" and "ambulance chaser" at him when he spoke on the House floor about patient rights during debate on the healthcare bill:

It's funny how things change. Since the bad guys shouted good old Bruce down, there was a little oil well explosion down in the Gulf of Mexico. People seem to like trial lawyers a lot more when the stuff that "can't happen to them," you know, happens to them. Check out this video (HT to PopTort) of Braley ripping into a Transocean executive because his company coerced traumatized workers from Deepwater Horizon to sign affidavits the day after the accident saying they weren't injured and didn't witness anything. Nobody's shouting him down now, are they?

I wish I lived in Iowa, just so I could vote for Bruce Braley.

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

I would like to see a much broader range of experience. I think the Court is becoming too homogenous. It is full of former appeals judges, government lawyers, and academics. By way of example, once John Paul Stevens (I just love his keyboard work on Houses of the Holy) retires, there will not be a single member of the Court who has ever served in the military. I would bet that more than half of the current Justices have never tried a jury trial, and that no more than one of nine has ever represented an ordinary person in court outside of a pro bono program in some huge law firm. On this issue, the only "maybe's" I can find are Anthony Kennedy and Sonia Sotomayor. Kennedy at one point took over his late father's private practice, and at some point Sotomayor worked on her own, but I couldn't find exactly what kind of work each did. But that's only two possibles of nine. I think that is a real problem.

The thing about the law is that it does not exist in the abstract. Certainly there are broad policy components to nearly everything the Court does. But having the brute mental horsepower to wrap your mind around those sort of weighty issues is not the whole ballgame. At some point, ALL law is ultimately applied to a specific situation. That is where the rubber meets the road. And we have a Court full of people who have never been there when that happens. We do not have one single Justice who made a career representing individual human beings.

And we never will. Never. The word you are looking for is "unconfirmable." The day a real trial lawyer sits on the Supreme Court I will probably die from shock. We live in a world where Rep. Bruce Braley is shouted down on the House floor to cries of "trial lawyer."

I did a minimal (and when I say minimal, I mean minimal) amount of research, and I found only two Justices who made representing real people a focus. Abe Fortas, who argued Gideon v. Wainright (the case establishing a right to counsel free of charge for defendants in criminal cases) and Thurgood Marshall who argued a case you probably have heard of, Brown v. Board of Education (school desegregation). Interestingly, Marshall also argued Murray v. Pearson in the Court of Appeals of Maryland, which resulted in the desegregation of the University of Maryland's law school. That school's law library is now named after Marshall.

Would the Senate confirm Thurgood Marshall today? I wonder. Just look at the recent controversy over some of his comments in the context of Elena Kagan's nomination. In a speech in 1987 Marshall described the Constitution as originally drafted as a "defective" document. You know, because of that whole thing about it basically leaving out any rights for people who were not white males.

Kagan was a clerk for Marshall. She was attacked by Republican National Committee Chair Michael Steele as having shown "support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective.’” First, what an insane system we have where a nominee is scrutinized over what she thought of a speech her former boss made in 1987! Second, Michael Steele should thank God every day that Thurgood Marshall held those views, since if he had not, there is a good chance Steele would never had the chance to go to Georgetown or to be Maryland's Lieutenant Governor, what with him being African-American and all.

Imagine the controversy if Marshall himself was the nominee in 2010. Staff counsel for the NAACP? These kind of things are why we have the blandest Court possible. Lawyers who hold strong beliefs and who will go to court and fight for them on behalf of average Americans will never sit on a court where having no record to critique is actually an advantage in the confirmation process. So there you go. Don't look for me or Bruce Braley on the Supreme Court anytime soon. But, you never know. Ruth Bader Ginsburg was counsel to the ACLU.

The Baltimore Sun reports that the Senate Judiciary Committee has approved President Obama's two most recent judicial appointments for Maryland. The nominees are Ellen L. Hollander, and James K. Bredar. This means that the next step in the confirmation process is for the nominations to proceed to the Senate floor for a confirmation vote by the full U.S. Senate.

Hollander has been a judge on the Court of Special Appeals of Maryland since 1994. For out-of-state readers, this is Maryland's intermediate appellate court where appeals of right are heard by three-judge panels. It is a court of record, where opinions may published if they touch upon issues of broad significance. I have argued appeals before Judge Hollander. She was bright and well-prepared, and has a good reputation among the bar generally.

Bredar has been a United States Magistrate Judge since 1998. A magistrate is basically "judge light." Typically they rule over pre-trial motions, settlement conferences, and discovery disputes and issue opinions that are then adopted or approved by Article III (confirmed by the Senate) judges. Magistrates may also preside over trials by the consent of the parties. Judge Bredar has the reputation of being a good trial judge and of having skill in mediating disputes between the parties to litigation.

Neither of these nominees are particularly controversial, but that does not mean they will be quickly confirmed. According to the Baltimore Sun's Paul West, there are 23 other judicial nominees in line for a vote before Hollander and Bredar, and the recent nomination of Elena Kagan to the U.S. Supreme Court is expected to delay the process further. There may not be a vote until late fall.

I think that sucks. I understand, but do not really approve of, the intensely political nature of appointments and confirmations for federal appellate courts. Those courts make broad rules that will affect many cases, and may alter the development of our rule of law. But these delays and investigations into nominees for federal trial courts are just stupid. U.S. District Court judges simply direct traffic at the intersection of facts and law. I don't mean to minimize the great responsibility they have, but they do not have a far-reaching effect on the development of law and public policy. The Senate should immediately develop a streamlined process for the confirmation of trial court judges. If they are qualified, they go on the bench. This will minimize delays, lessen crowded dockets, and promote the administration of justice.

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare's interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant's liability insurer. And lets face it- we all know that the client and the defendant won't have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

Our practice at Miller & Zois is to discern early on in the client intake process whether the client is a Medicare recipient (or Medicaid,or state Medical Assistance). This lets us contact Medicare to put it on notice of the injury claim, and to request an itemization of the payments made by Medicare and a statement of Medicare's claimed interest.

Most of this ultimately operates for the protection of the client. First, the billing for the treatment is at the lower, Medicare rate. Once we have Medicare's itemization, we can make sure that the treatment listed is actually related to the case. It is not uncommon for a client who is in a car wreck and then suffers an unrelated injury a short time later, to have treatment for the second injury show up on a Medicare lien if the CPT codes for the treatment are similar. We also then have the opportunity to negotiate with Medicare to compromise the lien. Plus, if you don't do this stuff, not only is the client looking at Medicare coming after them to get the money back, they may find themselves with no coverage, or their Social Security benefits could be docked to recover the payment.

As part of serving on the board of the Maryland Association for Justice, I plan and speak at a fair amount of CLE seminars. These sorts of lien issues are always a concern because of the broad reach of Medicare's right to repayment. They are also a hot topic on our email listserve. I recommend that all lawyers do what they need to educate themselves on this issue, so they know the proper steps to take to protect their clients' interest and avoid committing malpractice. It looks like Maryland is heading towards implementing a mandatory CLE requirement, which should help raise awareness in this area.