Monthly Archives: July 2008

Uninsured Motorist Injury Trials

I recently finished a jury trial in a really tough uninsured motorist case. This was a case involving a woman who was struck as a pedestrian while she was crossing a parking lot. What made this particular case so difficult was my client’s history.

This unfortunate lady was involved in two other accidents the same month, luckily after the accident I was handling. Additionally, she had no less than five prior injuries to the same body part, one of which resulted in a 20% permanent partial disability. Her damages in my case included a torn lumbar disc documented by discography and a corrective surgery.

This case was against State Farm, an insurer known for its hardball tactics and low settlement offers. In fact, the American Association for Justice recently named State Farm the 4th worst insurer for consumers. The last settlement offer we received was $7,000.00, which we viewed as very low in light of the client’s injuries.

State Farm is unusual because in UM cases, once they establishes what they think the case is worth, they send the claimant a check for that amount. This is regardless of what recovery is eventually made. Namely, if the client had gotten nothing, she wouldn’t have had to pay it back. This is an admirable principle, but it would be more effective if the values placed on these matters were in the range of the actual value at trial.

In defending this case, State Farm followed its established “deny, delay, diminish” playbook. First, the insurer argued the accident was really the client’s fault anyway, despite the uninsured driver being ticketed, failing to appear in traffic court, and failing to appear for our trial. Second, they argued that her injury and surgery weren’t related to the accident, and that she only sustained a minor soft tissue injury. To that end, they hand-picked a doctor to create a five-page report saying so.

Thankfully, the jury was able to see past these tactics, and ultimately awarded my client $60,000.00. This is even though this case was in Anne Arundel County, which most injury lawyers view as a very conservative jurisdiction.

Motion to Compel Client to Sign Medical Records Authorization

I received a motion to compel my client to execute a medical records authorization in a personal injury car accident case earlier this month in Prince George’s County.

If you are every faced with this issue, you can click here for my response. Even if you are not in Baltimore, the logic of the motion will apply to most jurisdictions and most states have rules similar to the Maryland Rules on this issue.

How not to relate with victims

The tragic case of the beating of Zach Sowers is once again making news in Baltimore City. If you don’t know already, Mr. Sowers was beaten to death while walking to his home on the outskirts of Patterson Park in east Baltimore. The attack left him in a coma, and he eventually died as a result of his injuries. However, the three defendants in the case took plea deals that precluded prosecutors from charging them with murder if the victim subsequently died.
Anna Sowers, the victim’s widow, has been vocal in her displeasure with the way the case was handled by the Baltimore City States Attorney’s Office, and has advocated for changes in the law to give more protection to victims.

Maryland’s Daily Record reports that a protest was held yesterday in front of the Clarence Mitchell Courthouse. The protest was organized by Mrs. Sowers to call for the firing of Margaret “Marty” Burns, official spokesperson for the state’s attorney’s office. This stems from comments attributed to Ms. Burns in a local legal publication where she apparently minimized the injuries to Mr. Sowers in the context of defending the plea deals given to his attackers.
Apparently she characterized his appearance as that of a “sleeping baby” despite the fact that he had just been beaten into a coma by three men. These comments were refuted in a public statement by Mr. Sowers’ treating physician.

We do not handle criminal cases at our firm. I am interested in this case because we deal with injury victims every day. This is a textbook example of how not to interact with victims, their friends and family. I understand that all of us occasionally let slip something that might be better phrased. However, when media and victim relations is your whole job, I think we can expect a little more intelligence and sensitivity. Regardless of the accuracy of the statements Ms. Burns made, the fact that she made them at all, in a high-profile case, in an interview with a reporter, is reason enough to question her judgment. This is especially important in a justice system that depends on cooperation from victims and witnesses. If this is an example of how victims and their loved ones are treated, its easy to see why there are segments of the community that have very little faith in the system.

Stop Making Injury Lawyers Look Bad

I just read on CBS News’ website that a New Jersey man has filed a lawsuit against the sandwich chain Subway. Apparently, this gentleman bought a sandwich, and it turned out to have a seven-inch serrated knife baked into it. He bit into the part containing the knife’s handle, but didn’t swallow any of it.

He says that he got a stomache ache for a few hours, and that the knife “could’ve slashed” the side of his mouth.

It’s certainly possible for reasonable lawyers to reach different conclusions on any given set of facts. However, I don’t think I would have agreed to get involved in this man’s case. I believe that news stories like this do more to undermine the civil justice system than any amount of insurance industry lobbying or tort reform.

I support the right of individuals to seek redress when they are injured by another’s carelessness. I agree that there is no reason a customer should be sold food with a dangerous item in it. I also think its ridiculous to file a lawsuit over a tummyache, and the possibility that you could have been injured and weren’t. This doesn’t sound like anything that couldn’t be fixed by a refund of the purchase price and a bottle of Pepto-Bismol.

I think its a shame that a big portion of the general public (and therefore the jury pool) forms their impression about personal injury lawyers and injury plaintiffs based on stories like this one. It isn’t fair that victims of serious or catastrophic injuries will be stereotyped based on the media hype given to someone who wasn’t even hurt, but filed a lawsuit anyway.

Baltimore Dog Bite Injuries

The Maryland Daily Record’s website reports that Attorney General Doug Gansler held a press conference to address the issue of dogfighting in our communities. The article notes that this is most prevalent in Baltimore City.

As a mascot, he brought in a pitbull terrier named Kane as an example of the kinds of animals commonly used for this brutal, offensive excuse for a “sport”.

Baltimore injury lawyers see a lot of children injured as a result of vicious or unsupervised dogs. These injuries usually lead to moderate medical bills, but significant emotional trauma and scarring.
Occasionally children are permanently disfigured or killed.

It is important to make sure to contact the appropriate authorities.
They will conduct an investigation, and sometimes a hearing to determine what to do about an animal that causes this kind of injury. These hearings are recorded, and can be useful in presenting a claim for injuries from a dog bite.

Use of Demonstrative Aids in Injury Trials

I always tell people that a big part of what plaintiff’s injury lawyers do is pure theater. Of course you need to have a solid grasp of the law and the procedural rules, but you also need some skill as a storyteller. I think this is most important in addressing the issue of damages.

In serious injury cases, this is paramount. The name of the game is driving home the seriousness of the harm to the factfinder. Pretty much every injury lawyer has their own favorite ways to do this, and there are volumes written about proving and demonstrating damages.
Medical damages are easy. They are what the medical bills say they are. The same goes for past lost wages and to some extent, future lost wages. They are easily proven using a witness from the employer, disability records from the physician, and sometimes by using an economist to calculate future lost wages and/or lost earning capacity.

The tough part is proving non-economic damages, namely pain and suffering and damages for permanency. This can require some creativity. Obviously, it’s easy to get the injury victim to testify about the pain and other difficulties caused by the injury, or the difference between their capabilities both before and after the injury. One disadvantage to this is that such testimony may be seen as self serving.

This is a good time to make use of demonstrative aids. I handled a serious injury case where my client had a severe shoulder injury that resulted in a complete shoulder joint replacement. This poor gentleman ultimately needed to have his complete shoulder replacement revised. All this means is that he had problems with his implant, and had to have a new one put in. I asked him to talk to his doctor, and see if the doctor would save the old replacement joint when he took it out. He got it and gave it to me to save as an exhibit.

Now, this client looked okay when you saw him sitting and moving around. He didn’t seem like someone who had a serious injury. But when you picked up the heavy hunk of metal that replaced his humeral head, you immediately had a new perspective on exactly what this man had gone through. I produced photographs of the implant in discovery, and took it with me to the court-ordered settlement conference to show the judge and defense counsel. I don’t know how much of a difference it made, but I do know that the case settled for a significant amount. I didn’t get to try and use it at trial, but I truly believe that any juror that picked this thing up and held it would instinctively reach up and touch their shoulder immediately afterward, just like I did the first time I held it.

MIST Claims

It’s an acronym used by insurance companies to describe certain kinds of auto accident injury claims. It stands for Minor Impact, Soft Tissue. Some insurance companies have a policy of denying these type of claims, notably GEICO. What the Baltimore injury lawyer gets in response to a demand package is a letter from a claims adjuster that says “we are unable to understand the nature of the injuries claimed in light of the minor damage to the vehicles involved.” This is true even though liability may be unquestioned, like in a rear-end collision.

The problem with this unfair claims policy is that people DO get injured in auto accidents where there is little damage to the vehicles. I suppose this policy saves the insurance companies in a macro-economics sense, otherwise they wouldn’t do it. Insurance companies get a lot wrong, but usually their instincts are pretty good when it come to trying to keep their money. I think they are relying on lazy plaintiff’s injury lawyers who settle all of their auto accident injury cases. If the only way to make a recovery on a case is to go to trial, I’m sure there are a percentage of lawyers who won’t bring these cases, especially since the possible recovery is usually quite modest.

In a micro-economics sense, this policy is worthless. These kinds of cases can be, and are won at trial. Other lawyers in our firm have had great success in trying auto accident injury cases where there is little or no property damage. I took an informal poll around the office, and none of us can recall trying a case like this and not recovering damages (other then where there was a liability issue).
I’ve also found that being willing to try these cases is great for client relations. Clients view a MIST letter as the insurance company saying they are lying. Clients aren’t stupid- this is exactly what the carrier is doing. Nobody is going to come back to an injury lawyer who is unwilling to fight for them. I actually really enjoy trying these cases. It’s a challenge, and a great way to hone your trial presentation skills.

The key to doing this successfully is exercising care in case selection and trial preparation. Obviously, there are no cases where this isn’t important, but in these cases, often that’s all you’ve got.

Take care to find out if your client has a history of prior claims, particularly for the same kind of collision or injuries. Also review the medical records with care. If there is an ER visit, compare the complaints at the ER to the complaint made to the doctors who provided the follow-up care. Also look for objective verification of injury, such as an x-ray, ct scan, or MRI showing a straightening of the normal lordotic curve of the spine.

Also, get to know your client. The client’s background and impression are the key to your case. If your client is established, has a family, and has a good track record of employment, there are fewer reasons for a judge or jury to doubt her injury claim. I tried a claim like this where my client had been employed for 11 years as an ER nurse at a large Baltimore hospital, which originally diagnosed her injuries. The defense had a hard time attacking her credibility as a witness, even though she had a similar prior claim.

I’m not suggesting that injury lawyers actively seek out these kinds of cases. But on the occasions where you find yourself facing a MIST defense, remember that you can try and win these cases.

Is Defendant’s Jury Prayer Timely?

I think one of the tougher things to do in preparing an injury case for litigation can be determining the proper court and ad damnum amount for suit. This usually comes up in cases where the damages are significant enough that the case can’t be filed in the District Court for $10,000.00 or under.

The injury lawyer handling the case then has to decide whether to file in the District Court for $30,000.00, or to seek a higher amount and file in the Circuit Court. This can be a tricky decision, and there are a number of factors that come into play. For example, does the case justify the cost of paying the doctor to testify live at trial or on video? Where the case is too large to be filed for $10,000.00 is too small to justify filing in the Circuit Court, the only option is to file for $30,000.00 in the District Court.

This raises the possibility that the defense may pray a jury trial. In Maryland, defendants have a right to a jury trial in any injury case where the damages claimed are $10,000.00 or more. This means that you are going to wait longer for trial, spend more time conducting discovery, and spend more money getting the case ready.

What can be done about this? Make sure that the defendant has followed the rules. A defendant must file a jury demand within ten days after the time for filing a notice of intention to defend. Md. Rule 3-325. Normally, a notice of intention to defend must be filed within fifteen days after service of the complaint. Md. Rule 3-307. So generally, a timely jury demand must be made within twenty-five days after service of the complaint. If the jury demand is not timely, the right to a jury trial is waived. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001).

Any motion to strike a jury demand must be filed in the Circuit Court once the record has been transmitted there. Md. Rule 3-325(c). This procedure can help you make sure that the cases you file in the District Court stay there.

Don’t Let Your Client Be Miss USA

I’ve heard plaintiffs’ depositions in injury cases described as “beauty contests.” This is because the deposition of the plaintiff in an injury case is often the defense attorney’s first chance to actually lay eyes on the plaintiff. This is essential to properly evaluating the plaintiff’s likelihood of success at trial because the plaintiff’s appearance, manner of speaking, command of details, and likeability all have an impact on the jury. This is particularly true with respect to pain and suffering damages. The jury is unlikely to make a large damages award to a plaintiff that doesn’t appear likable or believable.

The title of this post, which may be me trying to be too cute, is a reference to the last two pageant winners to hold the title Miss USA. Both of these young ladies had the misfortune of making the Miss Universe pageant, only to trip and fall during the evening gown portion of the event. I am sure both of these ladies are hardworking, intelligent and generally graceful. Unfortunately for them (neither became Miss Universe) it is very difficult to overcome a negative impression.

The same holds true for the plaintiff’s deposition. Careful preparation can keep your client from falling on her face at deposition. As a group, injury lawyers are prone to forgetting that the average person has no idea how the litigation process works.
First, I always make sure that the client has a firm understanding of the purpose of the deposition, and the likely topic areas. Normally, the deposition has three parts, which I like to call Background, Facts and Medical/Damages. I explain the kinds of information that is usually included in each part.

Second, if there are facts crucial to the litigation, I make sure the client is aware of these areas. I hand out homework. The client should get a copy of her Answers to Interrogatories, medical records and bills, and any other important documents. This way the client knows the contents of any prior statements made in discovery or contained within the medical records. I also make sure the client gets to read the defense medical examiner’s report, if there is one.

Third, I explain the expected attire. So far I have not had anyone be offended by this- most people who are unfamiliar with the legal process are uncertain about what to wear. I make sure the client has the address of the location where the deposition will be held, and that they have my cell phone number in case of any last minute changes.

I think the attention paid to these issues helps clients make a better presentation at the deposition. It also sets a good foundation for getting the client ready to testify at trial.

The Laws of Physics in Baltimore Car Accident Cases

I love Joe Pesci, and one of my favorite scenes of his is from My Cousin Vinny where he uses the time it takes to cook a pot of grits to cross examine a witness about his misperception of time.

According to the Court of Appeals of Maryland, the laws of physics are irrelevant to the laws of this state. In Mason v. Lynch, 388 Md. 37, 878 A.2d 588 (2005), the Court of Appeals of Maryland held that photographs of minimal vehicle damage are relevant as to the question of whether a plaintiff was injured in a auto collision injury case. The court held that common sense tells us that there is “a correlation between the nature of the vehicular impact and the severity of the personal injuries.”

The court didn’t seem to mind that the weight of scientific authority says exactly the opposite. The two dissenting judges, the Hon. Irma S. Raker and Chief Judge Robert M. Bell, actually quoted a scientific study that concluded “the assumption that injuries relate to the amount of external vehicle damage in all types of crashes has no scientific basis.”

Apparently the majority felt that our courts should rely upon “common sense” even when scientific fact tells us that common sense is wrong.
At various points in history common sense told us that the world was flat, and that the stars and planets revolved around the earth. I doubt the Court of Appeals of Maryland will be endorsing these theories anytime soon.

Since apparently “the laws of physics cease to exist in this state”, Baltimore car accident lawyers must continue to contend with the defense argument that low or no property damage equals little or no injury, and that common sense tells us that anyone who says otherwise is lying. There are a few ways to deal with this.

One is to be absolutely upfront. Don’t try to say the pictures show anything but what they show. To do otherwise kills your credibility with the judge or jury. Concentrate on making sure the injury victim is able to describe her movements in her vehicle, whether she hit any part of the interior, and what the force of the collision felt like. Also rely on any “independent” verification of injury, such as ER or ambulance records.

I have also heard other ways to minimize this kind of problem. Author and trial consultant David Ball suggests using a high school physics teacher to explain the physics of force transfer. I don’t know if this would work, but it’s an idea to think about. Some lawyers will use a biomechanics expert to get the same testimony. I wonder if one would be able to cross examine defense doctors who use the lack of vehicle damage to support their conclusions by using the studies that Judge Raker and Judge Bell quote? Maybe that is a technique to try the next time this issue comes up.