Monthly Archives: November 2009

Why You Haven’t Heard Anything

Probably the most common question I (and most personal injury lawyers) get from clients is “I haven’t heard from you in a while, what’s going on with my case?”
Generally, the reason you haven’t heard from me in a while is because there is nothing going on with your case. I know, that’s kind of a flip answer.

I think the reason behind the question is that most clients do not have a detailed understanding of the life cycle of a personal injury case. After intake, and during the client’s medical treatment, not a whole lot goes on. This is particularly true in terms of personal interaction with the lawyer. We generally follow up with treating clients every three weeks. We have a staff member whose title is “treatment monitor,” who keeps track of the client’s medical progress and makes sure we are aware of all current medical treatment so that we can secure documentation. It just isn’t efficient to have a lawyer handling all of these communications.

So there is not a lot of direct contact between lawyer and client during this period, but that is because there are few legal issues that arise during this phase of the case. Once treatment is complete, there is much more personal involvement by the lawyer in addressing settlement issues and if needed, litigation.

So there you go. Don’t get worried. We are on top of your case. We just need to get you better before we can move the case along to the next stage.

Prospective Law Students Lack Market Awareness

If I were picking a career field today, I would do my best to avoid fields that would leave me with a crushing debt load and minimal prospects of securing employment. You know, like practicing law.

But what do I know? Above the Law reports that the number of LSAT’s administered has risen every year since 2006. Who is taking this test? Attention LSAT takers: The market has spoken. It does not need more baby lawyers.

Please, people. Only go to law school if you have a passion for it and the skill set to match. Everyone else should immediately go to their college career office and find out what industries are actually growing, and then take the test for whatever grad school gets you into that field. I hear nursing is big these days, as all those baby boomers get old.

Law is a crappy backup plan for college grads who don’t know what else to do. They graduate with significant student loan debt, have a terrible time finding a job, and when they do they end up miserable because they are spending hundreds of hours a year doing something they don’t love. Law is a very, very, tough gig even if you love it. If you don’t, it’s miserable.

That’s what I did. I am a lawyer, specifically a trial lawyer, because I love it and can’t imagine being happy doing something else. If that isn’t going to be you, find what you love and then go do that.

Lawyer Disbarred For Fraudulently Concealing Assets

Friday, the Court of Appeals of Maryland issued its opinion in an attorney discipline case. The Court reaffirmed what we all know, which is that commingling personal and client assets in an attorney trust account is likely to get you disbarred. So for my lawyer readers, don’t do that.

The facts are interesting though. It seems that the lawyer was accused of sexually molesting one of his young daughter’s playmates. The opinion doesn’t say so, but it looks like the lawyer was not convicted criminally. So he does something that only a truly innocent or really stupid person would do- he sues the purported victim’s parents for defaming him. In turn, they do something that a really smart person (or a person getting excellent legal advice from Andrew D.
Freeman
, Esq.) would do- they counterclaimed for battery on behalf of their daughter. The Baltimore County civil jury agreed with the parents, granting judgment against the lawyer in the amount of $386,350 in compensatory damages and $75,000 in punitive damages.

The disbarment proceeding centered upon the lawyer’s financial misconduct in trying to conceal assets from the parents’ efforts to collect the judgment. Nothing was really said by the Court of Appeals about the jury’s finding of liability for improprly touching the girl. The opinion gave me the impression that if the lawyer had simply paid the judgment, he would still be practicing.

I wonder if this is because of the standard of proof? In Maryland, attorney misconduct must be proven by clear and convincing evidence.
However, for the civil judgment the parents obtained, the standard of proof is a preponderance of the evidence. So the only way that the abuse could have been before the Court of Appeals would be if there had been a “trial within a trial” to allow the court to rule upon the abuse allegations under a “clear and convincing” standard. To be clear, this is my own analysis; it’s not in the opinion.

I bet the Court was glad to have an iron-clad reason to disbar without having to wade into the abuse allegations. I think you can see the court didn’t want to go there, since the only mention is about one line explaining where the judgment against the lawyer came from.

Big News- Oral Argument Scheduled On Right To Discover Professional Witness Financial Bias

Yesterday I received an order from the Court of Appeals of Maryland scheduling oral argument in two cases I am handling. Really, it is one argument, but relates to two cases that have been consolidated on appeal.

The first case is a case my colleague Rod Gaston had for trial in the Circuit Court for Anne Arundel County. The defendants named a neurosurgeon as an expert witness. Rod obtained an order compelling him to produce certain financial records in an effort to find out how much he is paid for testifying in general, and for the defense attorneys, defense law firms and insurance companies involved in the case specifically. The doctor has appealed that order.

The second case is a truck accident case I am handling in the Circuit Court for Montgomery County. That case has been stayed in the trial court pending the outcome of the appeal. There, the trial court entered a similar order, only with a strong confidentiality provision protecting the privacy of the records to be produced. The doctor has appealed that order as well.

It’s the same doctor in both cases. The evidence is clear that he is a “professional witness.” We also have him as a retained defense medical expert in a few other cases we have in the office. He has been ordered to produce financial information in other cases as well, and I understand more appeals will be forthcoming. It appears to be the doctor’s position that all of the judges in various counties across Maryland who have ordered him to produce this material are wrong, and have abused their judicial discretion.

The issue before the Court of Appeals is whether the trial courts’ orders were an abuse of discretion under the Maryland Rules and the relevant case law, including Wrobleski v. DeLara.
These cases may have broad implications for how expert witness bias discovery is conducted in Maryland auto and truck accident cases. Miller & Zois believe that juries are entitled to know if the professional witnesses put before them have a financial interest in testifying, or in testifying for any particular lawyers, firms or insurance companies. And what the extent of that financial interest is.

The Court’s opinion in these cases is likely to significantly affect plaintiffs’ lawyers’ ability to find evidence of bias so that juries have the facts they need to determine whether they should believe the witnesses put before them.

So if you are interested, circle 1/12 on your calendar. The argument will be broadcast live on the web from the Maryland Judiciary website.

It’s About Time- Hon. Andre M. Davis Confirmed For 4th Circuit

Today’s Baltimore Sun reports that Judge Davis has been confirmed to a seat on the U.S. Court of Appeals for the 4th Circuit. Hopefully we will see the Senate act to end the shameful delays in judicial appointments.

He’s a good judge. There is no good reason he wasn’t immediately confirmed. Hopefully the Senate will move quickly to confirm the remaining three nominees to that court, fully staffing it for the first time in a very long time.

Appellate Argument Techniques

Last week, I argued an appeal in a truck accident case. I was in the Court of Special Appeals of Maryland, which is our state’s intermediate appellate court. My case was fourth in line on the day’s docket. That meant I got to (was forced to) sit through the argument on the cases ahead of mine.

The other arguments ran the gamut from abominable to excellent, and featured a range of attorneys from young lawyers to experienced appellate advocates.

One thing I saw some of these other lawyers do was to address the questioning judges by name. For example, “Great question, Judge Hollander.” Actually, my example violates two rules of appellate argument. Never tell a judge they asked a great question. Presumably, they also thought it was a good question, or they would have remained silent.

But my real beef here is that I think it is never appropriate to call a judge by name in a courtroom. My practice is to refer to all members of the court as “Your Honor” if we are in a setting where I am being a lawyer and they are being a judge. To do otherwise seems disrespectful, and could be taken as implying a personal relationship that does not exist.

When I ran into a member of my appellate panel in the lobby prior to the start to the docket, I found “Good morning, Judge Pierson” totally appropriate. When I am in a courtroom and he is on the bench, that is “Good morning, Your Honor.

I happen to know the most recent past clerk for one on the judges on my panel. Afterwards I emailed her about this issue. She actually said she even called her judge “Your Honor” in chambers.

Maybe I am wrong about this, but I don’t think so. At a minimum, sticking with the formal “Your Honor” is never going to get me in trouble. And it is also great if you happen to be bad with names.