Monthly Archives: October 2009

I Am In Favor of Tort Reform

You know why? Because reform is supposed to make something better, not worse. I am stealing the phrase “tort reform” back from those who would destroy injury victims’ rights for the sake of simple economic expediency. So here are John Bratt’s proposals for Maryland tort reform.

First, do away with the antiquated “contributory negligence” standard. In Maryland, if you are even a teensy, eensy bit negligent, you can never make a recovery in tort. “But wait”, exclaims a chorus of the uninformed, “that’s not fair- if you are negligent it is your own fault.” Oh really? What about a pedestrian who looks left, but not right and then a drunk driver runs him down? His fault, huh? Good thing Donte Stallworth ran that guy over in Florida, not Maryland. In our state, there is a good chance that guy loses his case against the drunk driver. Maryland should abandon this unfair standard and move to a contributory negligence system such as those in use in 44 other states.

Second, our legislature should appeal the “actual malice” standard to recover punitive damages. What this means is that in order to recover ounitive damages, you must prove that whatever the defendant did was not only intentional, but done out of specific ill will toward the injured person. There is a great illustration in the news right now. A 20 year old college student, a pedestrian, was run down and killed by a repeat drunk driver, who then left the scene. It turns out, he was captured on various cameras driving erratically throughout the city before the fatal collision. That poor young woman’s family will not be able to recover punitive damages. Is that fair? This is a case where allowing punitive damages is not only morally right, but would provide a benefit to society by showing that this conduct will not be tolerated n the community.

Finally, the big one. I would abolish all arbitrary damages caps. Damages caps are unfair, un-American, and deprive citizens of their right to have their damages determined by a jury. Juries are kind of a big deal in America. It’s in the Constitution and all. Juries decide whether people live or die, go to prison or go free. But when it comes to some doctor or insurance company’s pocketbook, we don’t trust them anymore. That’s stupid. The whole point of our system of government is that it puts the ultimate power in the hands of the people. Arbitrary damages caps take that power away from our juries.

Laura Zois and I had a trial this summer where we were representing a young woman whose right leg was crushed by a gas tanker that ran a red light. Our Baltimore City jury awarded her $63,000 in medical bills and $1,000,000 in non-economic damages. Because of Maryland’s arbitrary cap on non-economic damages, the verdict was automatically reduced to $729,000. When we told the jury about this, they were mad. They put a lot of time and effort into arriving at a fair verdict, only to have it undone by a law they were not allowed to be told about during the trial. That’s not fair. They intended their verdict to compensate my client for the rest of her life for her permanent injuries, not two-thirds of it.

These three tort reform proposals would do an immense amount of good for injury victims in Maryland. They make sense, and promote fairness in our civil justice system. On the other hand, the only real argument against them is an economic one, made by those who stand to lose the most- wrongdoers and their insurers.

Yeah, It’s Kind of a Wierd Town

What are we known for in Baltimore? Let’s say you’re not from around here. What comes to mind when you think B-More? Johnny U and the old Baltimore Colts? Francis Scott Key writing down his thoughts on seeing Old Glory still flying over Fort Mchenry? Johns Hopkins’ perpetual status as one of the top hospitals in the world? Hometown of disgraced Vice President Spiro T. Agnew and Speaker of the House Nancy Pelosi? Home of the National Aquarium, with good ol’ Willie Don jumping in the pool in his 1920’s bathing suit?

These are all great, but nope. When people think Baltimore, they think ghetto, dope and crime. Homicide, The Wire, and The Corner. Has David Simon has done more to make Baltimore look bad than anyone in history? No. Unfortunately, that is like blaming the mirror if you’re ugly. It’s not perfect, but it’s home. This is basically a too-wordy intro to the Baltimore Injury Lawyer Blog’s “Only in Baltimore” fall frenzy.

Only in Baltimore:
Does the local newspaper publish a list of Top 15 memorable crimes.
Does a cartoon-worthy trial between Billy Murphy and Steve Snyder end up in an appellate opinion affecting every medical malpractice case tried in the state.
Does a Police Department lawyer moonlight defending criminals.
Does a police major get demoted for spending department time life-coaching on Facebook.
Does a mayor facing criminal charges come out publicly in favor of a seven-foot pink flamingo encroaching on the sidewalk.
Radio-talk show host is the gig of choice for disgraced or replaced political figures (Ed Norris and Larry Young representing the former, Bob Ehrlich representing the latter).

It’s a weird town, but we love it anyway. Plus, it’s so much better than Glad Valley, South Dakota (the farthest point from a McDonald’s in the continental United States).

Ambulance Chasing Should Be Outlawed

Connecticut has outlawed the practice of using “runners”– when crooked lawyers pay third parties to solicit injury plaintiffs either in person at hospitals or by going through police reports. These injured folks are then steered to crooked doctors, and the crooked lawyer helps them recover on the trumped-up claim.

Of course, I am sure that there are also genuinely injured people who are ensnared by these “runners” as well. The problem there is that they end up with the lawyer who uses runners, rather than with the most competent lawyer for their kind of case.

This is one of the few things that reputable personal injury lawyers, insurance companies, judges and legislators all agree on. This is a practice that is a harm to society, and brings the legal system into disrepute. Thankfully, this practice has been illegal in Maryland for many years.

Thanks to Walter Olson at Point of Law for the link.

Baltimore City Circuit Court Nominees

Here is the list of nominees to fill the seat on the Circuit Court for Baltimore City that became available due to the retirment on the Hon. John M. Glynn.

Out of this list, the only nominee that I know is Hon. Nathan Braverman. Judge Braverman is a sitting judge on the District Court of Maryland for Baltimore City. I have appeared before him many times and have always found that he is attentive to the arguments of the lawyers, respectful of all litigants, and fair. I don’t think he’d be a bad choice.

I also doubt he will be appointed, since he was on the list before it was readvertised. That is what happens when they send the names to the Governor, and he doesn’t want to appoint any of the nominees.

The nominees list has two new names, Charles Joseph Peters and Kendra Young Ausby. I don’t know either of them. But I would suggest that they are most likely to be appointed to the seat, simply because all of the other nominees were on the first list. We’ll see what happens.

Say It Ain’t So, Father Fran.

The Daily Record has published an AP report that the Archdiocese of Delaware has filed for bankruptcy protection in an effort to avoid litigating 88 legal claims of sexual abuse. According to the article, the filing was made Sunday night, “on the eve of a civil trial.” The decision was made by the Rev. W. Francis Malooly, Archbishop of the Catholic Diocese of Wilmington.

I knew Bishop Malooly as a boy, in Baltimore’s Gardenville neighborhood. Back then, we called him Father Fran. I served mass with him as an altar boy.

I think what he is doing here is terrible. I understand he has an obligation to the Archdiocese, and that the law allows for these kind of filings.

But I think this is terrible. Does the Diocese not have an obligation to these Catholics alleging abuse? Obviously, there is a potential legal obligation. But these victims are Catholics and children of God, who allege abuse by a priest. And by a single action, they have been deprived of their day in court. Does the Diocese not have a higher, moral obligation to see that justice is done?

I wonder which Commandment is the one that says it is OK to use man’s law to avoid paying for actions that are forbidden by God’s law?

We Are From The Government And We Are Here To Help You

One of the things that separates personal injury lawyers from most other kinds of attorneys is that our clients are regular people. Meaning they are folks who do not deal with the legal system on a professional basis.

Because we charge attorney’s fees on a contingent basis, our clients are able to get access to experienced, aggressive legal representation without paying an attorney’s fee up front.

Many people are not so fortunate. There are many cases where the only way to get a lawyer is to pay an out of pocket fee that may range fron several hundred to several thousand dollars, depending on the case. This is out of reach of many working folks, so they have no practical alternative to representing themselves. You see this a lot in landlord-tenant cases, special education, and family law.

In addition to funding low-cost legal services through the Maryland Legal Services Corporation, the Maryland Judiciary is looking for other ways to improve access to the courts for pro se litigants, the handicapped, people with language difficulties, and others who have barriers to using the court system.

The Maryland Access to Justice Commission is having an open meeting to address the concerns of the public on these issues.

It is October 23, 2009 at Chesapeake College. If you have had problems using the court system in Maryland, you should attend. The system needs this information to figure out ways to prevent people from having problems in using the Maryland courts. Since this is one of the rare occasions where the government cares what individual citizens think, it is best to take advantage.

The Maryland Board of Physicians Puts All Marylanders At Risk (Except Bad Doctors, They Seem to be OK)

Today is October 14. Each month the Maryland Board of Physicians posts on its website a report of sanction proceedings against the physicians and other medical professionals it regulates. The sanctions for September, 2009 were just posted today.

This is a big deal. That list of sanction proceedings is pretty much the only way for Marylanders to know if there has been a proceeding against their doctor’s license. Here is a great example to show why this is important, and why the Board of Physicians gives mere lip service to the safety of Maryland patients.

I have a client who was injured in an accident on January 1, 2007. She did what most people would do. She had a visit at the ER, and then followed up for treatment with her regular doctor. She was treated by her primary care doctor from January 20, 2007 to December 12, 2007. The doctor prescribed medications, physical therapy and chiropractic treatment. That all sounds great, right? Perfectly appropriate.

Until I tell you that this doctor had her license suspended effective September 30, 2006 for failing to resolve a state tax lien. On January 22, 2008, the Board finally realized that the doctor had been practicing without a license since October 1, 2006. They only found out because someone made a complaint. In February, 2009, the Board finally got around to sanctioning the doctor, with a $25,000 fine and imposing conditions for reinstatement.
So, all of the treatment my client got was done by a doctor with no license.

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Paralegal Education, Federal Judicial Appointments, Maryland Physician Discipline and the Noble Peace Prize?

Happy Friday everyone! Here’s what’s popping through my brain this morning:
Random Topic #1- One of the great things about M&Z is the collegial, family atmosphere. That applies to everybody here, not just the lawyers. Our receptionist is working on an assignment in legal citation for a paralegal class. She did not understand the difference between the state and regional reporters, so Ron Miller and I tried to explain.

One thing Ron and I quickly realized is that it is kind of hard to explain what parts of legal citations mean to someone who has never been in a law library and seen the actual books. Like, for example, the difference between state and regional reporters. How do you teach legal citation to people who have never seen a law library?

While we were explaining the difference between the official state reporter and the regional reporter, I looked down at the question sheet and noticed something strange. One of the questions creates a fictional Court of Special Appeals case, and the student is required to create a Bluebook form citation for it. Here’s the information provided to the students:
Mary E. Moreland, et al. (Appellant); The Baltimore Sun (Appellee); Court of Special Appeals; January 20, 1955; Volume 550; Maryland Appellate Reports; Page 200; Volume 100; Atlantic Reporter; Page 5.

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I’m Glad I Don’t Work For Doug Gansler

Doug Gansler is the Maryland Attorney General. Basically, the state government’s top lawyer. One of the many things the Office of the Attorney General does is represent the state in criminal appeals. Criminal prosecutions at the trial level are handled by the various local state’s attorney’s offices. Once those cases turn into appeals, they are handled by lawyers from the appellate division of the Office of The Attorney General.

There is an article in today’s Daily Record describing Mr. Gansler’s preparation for an upcoming argument in the United States Supreme Court. The case is called Maryland v. Shatzer, and has something to do with the scope of a criminal defendant’s invocation of the right to counsel. I am not here to write about the substantive legal issues- I only handle personal injury cases, which is the only kind of work we do here at Miller & Zois.

The article is about the extent of the preparation Mr. Gansler is doing to be sure that he is ready for oral argument in our nation’s highest court. One particular thing caught my eye. Gansler offered thanks for the assistance of a lawyer in his office named Brian S. Kleinbord, who is the chief of the attorney general’s criminal appeals division. It turns out that Kleinbord, not Gansler, is actually listed as attorney of record for the Supreme Court case. The petition for certiorari and the briefs in the Supreme Court list Mr. Kleinbord and two other lawyers as counsel, along with Gansler. The Daily Record quotes Gansler as saying “Kleinbord assisted in writing the brief and preparing for the high court argument, but the attorney general chose the case to be his first argument in the Supreme Court.”

You know what that means? It means that Kleinbord and the other lawyers wrote the briefs and did all the work. Now that it is time for argument, the guy at the top of the letterhead is swooping in to take advantage of all of the attention, and the glory if he wins. Gansler says he decided to do this because of his broad experience as a prosecutor. Hmmm. Who is best suited to do the argument? The guy who did the research, wrote the brief, and probably argued the case in the lower courts? Or a prosecutor turned politician, who rarely, if ever, sets foot in a courtroom anymore?

I get that there are perks to being the boss, and that this case gives Mr. Gansler the opportunity to show the citizens of Maryland (most importantly, the ones who vote) that he is out in front protecting our state from sex offenders. I know Mr. Gansler spent many years as a trial level prosecutor, and that he has argued these issues before in other cases. I am not trying to say he will do a bad job. In fact, I am sure the opposite is true.

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It’s About Time England Got With The Program

OK. I am back everybody, having taken a short break from this blog to do really important, lawyer-type things. Or something like that.

I have noticed a few legal topics in the news. One that quickly caught my eye was the announcement that yesterday marked the first sitting of the Supreme Court of the United Kingdom. This represents a shift from the previous arrangement where the UK’s top court was a part of the House of Lords. Apparently the motivation for the change stems from some European Union rules that mandate clear separation between legislative and judicial functions.

What I think is strange is that it doesn’t look like there will be any practical difference in the makeup of the court or how it will work. For one, the court is made up of the same judges that were handling appeals in the House of Lords, save one. For another, it isn’t like these guys were legislators anyway. They were professional judges hired and made part of the House of Lords specifically to handle the appellate function.

I can’t say I see a compelling need for change here. I mean, the Magna Carta was enacted in 1215, and it doesn’t seem that the UK has descended into a Lord of The Flies situation. Of course, maybe it’s just a good idea to change things up every 700 years or so. Not to mention, some countries figured out separation of powers around the late 1700’s, so it’s about time the UK got up to speed.