Monthly Archives: August 2008

Defense Settlement Strategies in Injury Cases

I just returned to the office from the District Court for Baltimore County. I had a car accident injury case set for trial today.

I love appearing in Baltimore County because I went to high school in the area, I know pretty much everyone in the legal community there, and mostly because I get to stick my head in and say hi to my Mom, whose office is across the street. I had time to say hi to Mom today because my case settled a few minutes before the trial was to begin.

The way this went down got me thinking about the way defense counsel and insurance carriers evaluate cases for settlement. This was a 2006 accident. Suit was filed in March, 2008. The carrier was Liberty Mutual.

This client had medical specials of about $8,600.00 and missed four days from work, so there was a wage loss claim of roughly $1,000.00. The pre-suit offer was $14,300, made in December, 2007.

The day before yesterday, defense counsel contacted me and made an offer to settle of $15,000.00. This was easy, since the client had already rejected the first offer, and this was only another $700.00, so she rejected the offer out of hand.

Yesterday at about 3:45 p.m., counsel called me back with another offer of $17,500.00. The problem with that is that by then, it was too late in the day for our settlement processing staff to verify the balances due to the treating medical providers, so I wasn’t able to give my client an exact figure on what she would net. The case settled this morning for $18,000.00, mostly because I didn’t like my odds on beating that by very much at trial.

This scenario makes me think that not very many of these defense attorneys or adjusters really understand what a competent personal injury lawyer needs to do to properly advise a client regarding a settlement proposal. The day before the trial is almost always too late to properly break down and evaluate an offer. This is particularly true where it has been nine months since the initial offer. All of the medical balances and the attorney expenses need to be verified and computed in, since there’s a very good chance those factors have changed since the offer was originally processed.
If this offer was made two weeks ago (or nine months ago when it should have been made), this case could have been resolved more efficiently and cheaply for all concerned.

My client could have avoided losing a day of work to go to court. The same goes for the Defendant driver, who also lost a day of work because his insurance carrier couldn’t act in a timely fashion. I could have avoided the lost productivity of being out of the office all morning. The court could have had one less case docketed this morning, or could have added a case that really needed to be tried. Defense counsel still gets to bill the time, so I guess he wins either way, but Liberty Mutual could have avoided paying counsel to attend a completely needless court appearance.

Not only that, but these late settlement offers really rub injured plaintiffs the wrong way. I have had a lot of clients reject what I considered fair offers, just because they were made the day before or the day of trial. People resent being dragged through such a lengthy process, only to have an offer made late in the game that finally pays the value that should have been paid when the case was the adjusting phase. Nothing about this case changed since the original offer in December, 2007. Why did it take Liberty Mutual until fifteen minutes before trial to put together an offer that paid fair value?

This is something for defense counsel to keep in mind. If you want to settle the case, do it. But don’t wait to the last minute, because it actually hurts the likelihood of a successful agreement to wait, especially when Plaintiff’s counsel is prepared to take the case to trial.

The Effects of Medical Malpractice

How much do doctors really know about the impact of medical malpractice? I noticed last week there was a letter to the editor in the Baltimore Sun, written by a doctor. The doctor opined that frivolous lawsuits and the cost of practicing defensive medicine were driving good doctors out of the state.

I read with interest the response letter from the Maryland Trial Lawyers Association. Apparently the original letter writer’s subjective beliefs weren’t borne out by the facts. Doctors aren’t fleeing the state, and there is no tide of needless litigation choking the courts.

Simple self interest dictates that very few frivolous medical malpractice suits are filed. These kinds of cases are complex, and generally require several very expensive expert witnesses to prove. No medical malpractice lawyer is going to put up that kind of money for a frivolous case.

About Baltimore City Juries

There has been a lot in the news in the past few days talking about the impact Baltimore City juries have on criminal cases. There was a study done by the Abell foundation that found that in criminal cases, juries in Baltimore County, Anne Arundel County and Howard County are three times more likely to convict than Baltimore City juries.

The response from the Baltimore City legal community has been a collective “Duh!”, because this merely confirms what we have known all along. Baltimore City juries tend to be less trustful of police and the government, and more likely to give an individual the benefit of the doubt.

Our firm does not handle criminal cases. We only represent injury victims. But this study is useful because in Maryland circuit courts, the civil and criminal jurors are taken from the same pool of potential jurors.

All experienced injury lawyers know that tailoring our presentation to the particular jury in the room is essential to a sucessful damages award. I’d argue a UM case differently in Baltimore City than in Baltimore County. An awareness of the variances between counties is also important in estimating case value. Our firm’s website has a brief discussion (scroll to the bottom for the review of counties) of the differences that may be relevant in trying a personal injury case.

Also, in a personal note, I’d like to offer congratulations to my colleague Rod Gaston on the recent publication in the MTLA’s Trial Reporter of his article on trying UM/UIM cases in Maryland since the Maurer decision. Rod will also be speaking this fall in the University of Baltimore School of Law’s A.M. Law series. His talk will address the issue of litigating defense medical examinations in Maryland. I will keep you posted for the time and date.

Why is Maryland’s Minimum Auto Insurance Amount So Low?

There was an article in yesterday’s Baltimore Sun about a young man who was seriously injured in a car accident- he was hit by a taxicab while riding his bicycle. The article focused on his struggle to obtain medical care. One of the things that was pointed out was that the taxi only had $20,000.00 in liability insurance, which is the minimum amount of insurance allowed under Maryland law. The taxi’s insurer is the Maryland Automobile Insurance Fund (MAIF), which is the state’s insurer of last resort.

In handling auto accident injury cases in Baltimore City, I have noticed over the years that it seems that more drivers in Baltimore City have minimum limits than in other places. Also, more often than not these are MAIF policies.

In a serious injury case, a brief stay at Shock Trauma can eat up $20k immediately. 20k isn’t enough coverage for anybody. Why does our state require such a minimal amount of insurance?

I am sure some of you are saying “That’s why I have high limits on my policy- so I am protected from an uninsured or underinsured motorist.” Some people are thinking that it isn’t fair to low income, new, or geographically disadvantaged drivers to require more insurance. Those folks pay higher premiums, so a higher insurance requirement would be a financial hardship.

Well, there are a lot of people who aren’t covered by any UM policy. For example, a person who doesn’t own a car and does not live with a relative who owns a car is not likely to have any coverage available for UM/UIM. For example, my elderly aunt who doesn’t drive but frequently walks to take care of her errands. Also, insurance isn’t really that costly. What really hurts low income/high risk drivers is that they are often limited to coverage through MAIF. The problem is that MAIF requires payment up front on their policies, so consumers are at the mercy of financing companies that put up MAIF’s premium and charge interest on monthly payments. Someone who has a minimum policy is also unlikely to have assets to pursue to satisfy an excess judgment.

What kind of public policy is this? Is the state promoting irresponsibility at the expense of victims? Maybe we would be better off if the required minimum were higher, even if it made insurance more costly for some people. Driving isn’t a right. Should we help out people who can’t really afford to drive at the expense of those who are just trying to walk around safely?

Other laws requiring set amounts of money have built in increases over time, like Maryland’s statutory cap on non-economic damages. Why can’t our mandatory required insurance be modified as well?

Maryland’s Flawed UM/UIM “Pay-To-Play” Statute

Recently, we have been seeing more and more problems in trying injury cases involving Maryland uninsured or underinsured motorists.

Md. Insurance Code Ann. § 19-511 states the procedures that must be followed in settling UM/UIM claims. We call it the “pay to play” statute. Basically, it says that once the liability carrier tenders a policy limits offer, the UM carrier has 60 days to decide whether to consent to acceptance of the offer. If the UM carrier says no, they have to pay the inured person the amount of the settlement offer.

Essentially, this gives the liability carrier 60 days to decide whether to waive subrogation. If they don’t waive, they have to pay the amount of the liability offer to the claimant, but the UM carrier retains its subrogation rights.

That’s all well and good. The problem comes in when the liability carrier tenders the policy limits within 60 days of the trial date. The statute gives the UM carrier a mandatory 60 days to decide what to do. What has been happening is that when the liability policy is offered 60 days or less from trial, UM carriers have been objecting to postponement requests to allow for the completion of the 60 day period.

This has the effect of depriving the plaintiff of the amount offered. The plaintiff cannot accept the liability offer without the consent of UM, while the UM carrier has the entire 60 period to decide, and is simultaneously objecting to a continuance to allow for the statutorily required period. This clearly frustrates the intent of the statute and renders it ineffective in these factual circumstances.

There has to be a solution to this problem. I can think of a few possible ones. Maybe we will get an appellate opinion directing administrative judges to allow continuances to comply with the statute. This would require some judge to abuse their discretion and deny a continuance in such a situation. That shouldn’t be too hard, since I understand several judges in Maryland are doing exactly that. Or perhaps the UM carrier’s actions in trying to have its cake and eat it too will be determined to be indicative of a lack of good faith.

Probably the best way to fix the problem would be to amend the “pay to play” statute to fix this loophole. This could be a good issue for the Maryland Trial Lawyers Association’s Legislative Committee to take a look at.

The Walls Have Ears

On Page Two of today’s Maryland section, the Baltimore Sun’s Laura Vozzella reports the unusual way the paper learned of the apppointment of the Hon. Mary Ellen Barbera to the Court of Appeals of Maryland. Apparently, Judge Barbera was attending a medical appointment when she was overhead making telephone calls to various people to let them know of her appointment to the state’s highest court. It turns out that there was a Baltimore Sun reporter a sitting few seats away.

This is something injury lawyers should keep in mind. You never know who is around to hear what you say. Your potential jurors, witnesses or opposing counsel may hear your comments in elevators, waiting rooms, or courthouse hallways. Remember, discretion is the rule of the day.

Expert Witnesses in Injury Cases

The New York Times has an interesting article about the use of expert witnesses in court cases. Essentially, the article explores the idea that expert witnesses are inherently biased towards the side who retained them.

As a personal injury lawyer (something I’m proud of, by the way) I have quite a bit of experience dealing with expert witnesses. My experience is that there is some truth to what the article says, but it isn’t fair to paint every expert witness with the same brush.
In Baltimore injury cases, there are several kinds of expert witnesses who may come into play. Most often you see medical experts, as well as economists, life-care planners, vocational rehabilitation experts and car crash reconstructionists.

As far as medical expert witnesses go, on the plaintiff’s side normally the expert presented is one of the treating physicians. Generally these are not “hired gun” experts hired specifically for litigation, but simply the treating doctor who testifies about the injuries sustained, the medical treatment, and the reasonableness of the medical bills.

On the defense side, the reverse is true. Normally we see the “usual suspects”; doctors who are repeatedly retained as witnesses by the same insurance companies and defense firms. Often these doctors are designated as expert witnesses by the defense before they even know anything about the case, the injuries claimed, or the plaintiff. Could it be that the insurance companies have some idea what these doctors will say? Common sense tells us that if they were not providing the opinions the insurance companies want, there would be very little repeat business.
In Maryland injury cases, the defense has no right to a medical examination of a plaintiff. Such an examination can only be obtained by a court order, or if both sides agree.

At Miller & Zois, we make it a point to aggressively protect our clients’ interests during this process. A forced medical examination is one of the greatest invasions of privacy imaginable. We do our best to make sure that this process is conducted in a way that is fair. Sometimes this means forcing the defense to obtain a court order to examine the plaintiff if we are not able to arrange acceptable terms through negotiation. We also go after these witnesses aggressively by obtaining the information needed to conduct an effective cross-examination. Often this means subpoenaing financial information to show that these witnesses make a lot of money testifying for insurance companies, so we can show the jury the financial interest these doctors have in providing opinions that are favorable to the insurance companies that hire them.

All plaintiff’s lawyers should review their practices regarding defense medical exams. Our Attorney Help Center has examples of sample correspondence and pleadings directed at this issue.

Legal Education In Demand In Baltimore

I just read an article in The Daily Record discussing the flood of incoming law students at Baltimore City’s two law schools. There are only two law schools in Maryland, The University of Maryland School of Law (“UMD”) and the University of Baltimore School of Law (“UB”), both located in Baltimore City.

The article reports that UB plans to admit 340 first-year students this fall out of 2700 applications. UMB plans to admit 317 students from 4000 applications. Combined, that is 6700 applicants competing for 657 seats. Even a liberal arts grad like me can tell that those are not good odds. These statistics show that a law degree is still in great demand.

This is curious, because the same publication also reports today on the lack of employment opportunities for recent law graduates. The article confirms what we all know- the top 10% of each graduating class generally has no trouble finding employment, whether in a prestigious law firm of through a judicial clerkship. But for the other 90% of law grads, the legal job market is tough, with many new attorneys getting by on temporary contract work (usually consisting of document review projects that are mind-numbingly boring and could be done by a reasonably intelligent high school student). They have quickly realized that the 100K in student loans may not have been the best idea. This is something law schools do poorly. They don’t do a good job of preparing the overwhelming majority of students who are not in the golden 10%.

There are many successful attorneys who took career paths off of the “law review- top10%-clerkship-big firm” path. Often, personal injury lawyers in particular follow alternative career paths. In our firm we have personal injury attorneys whose careers have had stops in big law firms, insurance house counsel offices and small law firms. Some of us went to law school immediately after college. One of our attorneys spent several years in law enforcement before pursuing a career as an attorney. The fact is that I know more top-notch lawyers who weren’t in the top 10% of their class than I do those in that category.

My point, if I still have one, is that there is no one set path to success. Law schools are good at supporting the top students, but not at preparing the average law graduate for the reality of the job market. And academic success is not neccessarily a predictor of success practicing law. The skill set required to be a good lawyer encompasses so much more than legal analysis. Organization, interpersonal communication, marketing, writing, personal integrity, professionalism and a desire for excellence are also required, and don’t always show up in a GPA.

Most prospective law students will end up in the bottom 90% of the class (90% of them I suppose). These students should persevere- your GPA doesn’t indicate your potential future success. However, law schools should do more to make sure these students know what they’re getting into before they take out 100k in student loans. There’s not always a pot of gold at the end of the rainbow.

Baltimore City Circuit Court Judicial Appointment

It was announced today that Governor O’Malley has appointed a new judge to the Circuit Court for Baltimore City. Marcus Z. Shar, a Baltimore City medical malpractice lawyer, will be the newest member of that court. I think this is a great appointment. I have met Judge Shar a few times through professional associations and his involvement with the University of Baltimore School of Law’s trial advocacy program.

He strikes me as a very intelligent, open-minded person who has the right demeanor for a trial court judge. I think this is a good choice all around.

Offensive Summary Judgment in Injury Cases

Hey, plaintiff’s bar! Wake up! Summary judgment isn’t just for defendants anymore!

Too many of us view the summary judgment process as an obstacle to be overcome, rather than as an effective offensive weapon. Almost since the beginning of time defendants in civil cases have used the summary judgment process as an attempt to weed out claims that have a weak factual or legal basis, or where an affirmative defense may apply.
But to quote one of my favorite rap artists, Ice Cube: “The system is there to bury you. Why can’t it be there to save you?” Esquire, January 2003.

I like to file offensive summary judgment motions where appropriate. There are a host of factual situations where such a motion has merit. I have filed these directed at the issue of liability in cases involving rear-end collisions, uninsured/underinsured motorists and the boulevard rule.

Often, the facts of the collision are not in dispute prior to trial, but at trial the defense may attempt to argue contributory negligence, or that under the circumstances that the defendant was not negligent. These claims may have a higher chance of success in front of a jury rather than the judge.

I like to take this option away from the defense whenever I can. Any experienced injury lawyer will tell you that it is in your best interest to narrow what you must prove at trial as much as possible. If summary judgment is granted, it is possible to position your case as a trial on damages only, and that is the name of the game. A ruling in your favor on liability lets you focus all of your efforts on proving damages. Remember, in drafting your proposed order, make sure it is tailored to exactly the relief you want. If you want a trial on damages only, put that in the order!

Plus, it’s always fun to put the shoe on the other foot for a change. I doubt defense counsel enjoy responding to summary judgment motions any more than we do.