Monthly Archives: July 2009

This Whole Ben Roethlisberger Thing

It is Friday. Normally I try to keep this blog limited to topics related to personal injury litigation. This is because that’s what we do here at Miller & Zois, and because I don’t think anyone really cares to hear my opinion on most other topics. But since today is Friday, and I am ready for a week at the beach with my lovely new fiancee, I am going to let my mind wander a little.

The popularity of the National Football League and the modern 24 hour news cycle make it likely that by now everyone knows that Pittsburgh Steelers quarterback Ben Roethlisberger has been served with a civil suit alleging he committed a sexual asssault. I have no idea if those allegations are true or not, and I am not going to speculate.

I originally found out about this case from the reporting on ProFootballTalk.com from editor Mike Florio, who in addition to his PFT duties is also a lawyer. Since I am also both a football fan and a lawyer, there are a few things I find interesting about the details that have come out so far.

First is that the accuser is represented by Calvin Dunlap, of Reno, Nevada. He’s far from a nobody in the Nevada legal world. He was the Nevada Trial Lawyers’ Association’s 2007 Trial Lawyer of the Year. The Maryland Association for Justice gives a similar yearly award, and my experience tells me that if you win it, it is likely you are a good lawyer and have a solid reputation in the legal community. Mr. Dunlap is also a former prosecutor who is noted for never having lost a jury trial during his tenure. He has handled other high-profile cases, including handling a divorce for the wife of the Nevada governor. Having a reputable lawyer who trys and wins cases automatically lends more credence to the claims in the lawsuit. Experienced, reputable lawyers are reluctant to bring weak claims, particularly in high profile cases. Plus, I love the quote the guy gave the media. PFT reports:
McNulty’s lawyer, Calvin Dunlap, also declined comment. When asked if there was any reason why not, he said, “Yeah, we try our cases in court, not in the media.”
Let’s hear it for lawyers who shut up and try cases. A tactic more people should try.

Second, there has been criticism of the timing of the suit coming directly before training camp and approximately a year after the alleged incident. Florio speculates that the timing may be because Roethlisberger was in Nevada for this year’s version of the same celebrity golf tournament where the allegations took place, which might be when he was served with the suit papers.

If that is true, it was a smart thing for Mr. Dunlap to do. This is because Big Ben’s presence in Nevada gives the state of Nevada personal jurisdiction over him. Personal jurisdiction requires certain minimum contacts with the forum state, which in normally satisfied by being physically present in the state when served with process. This means that when/if the case goes to trial, it will be in Nevada, in front of a Nevada jury, rather than in Pennsylvania/Pittsburgh in front of a jury that is most likely going to be pro- Roethlisberger.

I wonder if Mr. Dunlap has taken a cue from our in-house sports law expertRonald V. Miller, Jr.? Back in 2001, Ron was representing a sports management company that had a claim against then-NFL punter Todd Sauerbrun. In order to satify the minimum contacts needed to make him subject to suit in Maryland, Ron waited until he had a game against the Ravens and served him with the suit when he got off the plane. Otherwise, the case could not have proceeded in Maryland.
The advantage to the Plaintiff in the Roethlisberger case from the case being tried in Nevada rather than Pennsylvania is enormous.

Like I said, I don’t know if any of the allegations are true or not. But the Plaintiff being represented by a real lawyer who knows what he is doing gives her case a lot more credence in my mind.

Apparently Doctors Still Don’t Like Consumer Reviews

I wrote some time ago about some doctors conditioning treatment on patients promising not to post online reviews of the doctor. This is directed at websites like Angie’s List, RateMD’s.com, and the like. They way this works is that the physician will not see the patient unless the patient executes an agreement not to post reviews of this type. Today the Washington Post writes about these kinds of requirements becoming more prevalent in the Washington, D.C. metro area.

These kinds of sites exist for lawyers too. I understand that most professionals don’t want to be at the mercy of a layperson who may not understand the realities we work under. Plus, most of these services have no filter, so there may be content posted that is inflammatory, defamatory, or outright false. The crackpot with an axe to grind has the same ability to post that a legitimate consumer does.

The problem here is that all professionals, including doctors and lawyers, are in a customer service industry. It’s true that a layperson may not really have the knowledge to asses the quality of medical or legal services. On the other hand, it is easy for the average person to judge whether the staff is friendly or rude, wait times are unreasonable, if phone calls are returned promptly, or if facilities are clean and well-kept.

I would think professionals who excel at these kinds of service issues would have as much to gain from positive reviews as others have to lose from negative reviews. I think it is ridiculous to conditon medical treatment on the execution of a silence agreement. The best way to address the concerns these physicians have is to provide good customer service. One bad review may be a crackpot. Fifty bad reviews is likely a sign of a problem.

Race, The Economy, And Jury Verdicts

I just finished a one-day jury trial in Anne Arundel County Circuit Court, and I got killed. I am forcing myself to blog about this because I think it is dishonest for attorney bloggers to only write about the wins. Nobody wins all of the time.

This outcome was surprising to me for two reasons. First, I had what I considered to be a great case for the kind of case it was. Second, I had a very credible client and damages witness.

This was a damages case. The defendant driver was on his way home from work, and switched lanes to get oput from behind a box truck. Without seeing what was in the lane he changed into. He rear-ended my client who was stopped for a red light, and pushed her into the vehicle in front of her. Good photos of the vehicle damage.

She had bruised ribs and a sprained left hip. Went to the hospital by ambulance, and followed up with a private doctor and physical therapist. Ten weeks of treatment overall, no fractures, no permanency. I also thought the non-economic damages claim was pretty compelling. The client was on her way to her oldest daughter’s wedding dress fitting and missed it because of the accident, and was in pain for the bridal shower the next weekend and the wedding two weeks later.

Economic damages were $168.00 car rental. The medical bills were $5125.00, and tehre was a $1400.00 lost wage claim for two weeks off of work. I liked this case a lot. The jury gave the rental bill, the medicals, and $2100.00 for non-economic damages. Total verdict $7,123.00. That is less than the last settlement offer of $10k. I was shocked.

My client was a very nice, college educated African-American lady who works as a computer technician, and the damages witness was her long-time friend, another African-American lady who works at the Johns Hopkins Applied Physics Lab.

I wonder whether race had a subconscious effect on my all-white jury. I don’t think anyone would intentionally be influenced by race as a juror, but I always wonder in these situations if there is a more subtle bias that affects the outcome. I wonder if any studies have been done about this? I will have to look to see if I can learn more about the topic.

I also wonder how much the economy has been affecting jury verdicts. I think it is possible that jurors are more reluctant to make damages awards because so many people are facing hard times with no help available. Is a juror who just had a family member laid off, and who is missing a day of work to be on jury duty going to be disposed to making a good damages award? I don’t think so.

Obviously, I hate to lose. This is when I remind myself that Ted Williams is generally regarded as the greatest hitter in the history of professional baseball. He is in the Hall of Fame. He also failed to get a hit 60% of the time.

What Is It Like To get Sued?

I think it is normal for professionals in any field to become accustomed to the processes and procedures we deal with every day. I think that phenomenon is particularly pronounced in the legal field. Most people have extremely limited experience with the workings of the court system in general, and with civil litigation in particular. The average citizen’s legal experience is most likely limited to serving jury duty, or appearing as a defendant in traffic court.

For example, I have often had clients seem surprised that I am usually quite friendly with the attorney representing the defendant in their personal injury case. To me, most of these lawyers are colleagues, law school classmates, or simply fellow professionals that I have gotten to know across the aisle at trials. They seem to believe that adversarial equates to hostile. This issue often arises in clients’ frustration with the pace (extremely slow) of litigation. People also seem to believe that the insurance company or defense attorney has a particular axe to grind against them, where I see that as business as usual.

This is an overly long intro to a blog that I have found to be great reading. There is an emergency department doctor who was sued for medical malpractice and is blogging about the course of his own trial (after the fact).

Continue reading

More On Being First To File

I recently blogged about whether there is value to the client in being first to file a lawsuit. I was talking specifically about the litigation that has already commenced as a result of the recent DC Metro train crash.

A few points have been raised by other folks that I think are interesting. First- apparently there is a very remote likelihood of settment in any case involving WMATA (Washington Metropolitan Area Transit Authority). Because of this, many attorneys with experience in litigating against WMATA think filing suit quickly is the best way to make a recovery for the client without delay.

I get that, kind of. Sounds like litigating against MAIF. There’s no point in negotiating, so many think it is best to just file.

Others have pointed out that in a case like this where there is a mass injury with many potential lawsuit filings, there is a good likelihood that the cases will be consolidated, so filing first may increase the chance that the early filers will have a significant role in controlling the course of the litigation.

Maybe I just have more of a fear of playing catch-up than other attorneys. The points above seem valid, but I would be interested in the “early filers” views on what the disadvantage to the client is as a result of waiting, other than the obvious time delay.