Monthly Archives: December 2009

Big Appellate Win For Citizens Of Baltimore County

Today the U.S. Court of Appeals issued its opinion in AES Sparrows Point LNG LLC v. Md. Dept. of the Environment. AES wants to build a liquified natural gas terminal in eastern Baltimore County. To do this, AES needed to get the approval of federal and state regulatory authorities. They obtained the needed federal approval, but were denied by the state.

The state’s denial was based on the environmental impact of the proposed facility, because it involved deep water dredging, among other reasons. The backstory behind the state’s denial is the overwhelming community opposition to the proposed plant. Simply put, the folks who live in eastern Baltimore County did not want this facility because of safety and environmental concerns. They did the smart thing, and complained to their elected officials. It seems that this pressure worked, and the state ultimately concuded the objections were well-founded and denied approval.

AES then went to federal court and sued, trying to force the state to approve their project. The trial court’s ruling was appealed to the United States Court of Appeals for the Fourth Circuit.

The appellate court ruled in favor of the state, saying: “For reasons that follow, we uphold Maryland’s denial of AES’s § 401(a)(1) Certification Request on the independent ground that the
dredging required to accommodate the LNG tankers would create additional deep water areas where dissolved oxygen levels would fail to meet Maryland water quality standards.” Basically, the court’s ruling is that Maryland’s reasons for denying approval were not arbitrary or capricious, and therefore the denial should stand.

This is a huge win for the community, which now will not be stuck with a project it didn’t want. This also shows how representative democracy works. The community went to their elected representatives, County Executive Jim Smith and Congressman C.A. “Dutch” Ruppersberger, and those officials fought for what their constituents wanted. Agree or disagree, these guys did their jobs- sticking up for the people who elected them.

AES really can’t do much about this opinion. Its options are to find a way to comply with the state’s environmental requirements, or ask the U.S. Supreme Court to hear the case. It is very unlikely that the Supreme Court would take the case. Last year, the Supreme Court received over 8,200 of these requests; the court agreed to hear less than two percent of those cases.
Moreover, the 4th Circuit ruled unanimously and is generally regarded as the most conservative appellate circuit in the country. It is likely that the legal aspect of this dispute ends here, in a victory for the state.

Tort Reform Just Helps The Rich Get Richer

I thought this letter to the Baltimore Sun was interesting. Letter writer Andrew Slutkin notes that of the ten highest paying occupations in the Baltimore area, 9 of them are doctors. The only non-doctor position in the top ten is CEO. These are the people crying for tort reform because their insurance is too expensive. Boo Hoo. God forbid you drop to 11th or 12th highest paid. You might have to start bringing your own lunch to work.

Baltimore County Gets Two New Judges

Governor O’Malley has recently appointed two well-known Baltimore County lawyers to serve as judges on the Circuit Court for Baltimore County. They are S. Ann Brobst and John Nagle. I don’t personally know either of them, although I know both by reputation.

John Nagle is a partner in Bodie/Nagle, which is one of the largest law firms in Baltimore County. He has the reputation of being a smart guy with a great deal of litigation experience. He has worked mostly on the defense side of the “v.” A layperson might think that I would prefer judicial appointees who come from a more plaintiff-oriented background. They would be wrong. I want judges who are fair, smart, openminded, and who will allow me to educate them on the law if they don’t know it already. From all accounts, Mr. Nagle will be that type of judge. He is set to be sworn in on January 5.

The other appointee, Judge Brobst (who was sworn in yesterday) is a long-time Baltimore County prosecutor. According to a profile published in the Sun, she has prosecuted several high-profile cases, including Kirk Bloodsworth. Bloodsworth was sentenced to death, only to be freed nearly a decade later when DNA evidence not available at the time of his trial exonerated him. I imagine the experience of securing a death sentence as a prosecutor and later finding out that an innocent man was convicted (thankfully before his execution) has made Judge Brobst keenly aware of the magnitude of the decisions made by Maryland courts. Maryland circuit court judges hear all kinds of cases, so it is likely that Judge Brobst will hear civil cases as well as criminal. I don’t see this as a big deal- I have tried many civil cases before judges who are former prosecutors. Generally they have tried a ton of cases before going on the bench, and excel at letting the lawyers do their thing. I would almost always prefer to try my case in front of a judge who has significant trial experience because they know what it is like to be the person standing in front of the jury, and run the case accordingly. To they extent they lack substantive knowledge of the particular law that applies to the case, being prepared to educate the Court is part of an advocate’s job.

I do not know Judge Brobst personally, but two of the commentators in the Sun article are lawyers I respect greatly: Baltimore County State’s Attorney Scott Shellenberger and Maryland State Bar Association President-Elect Henry Dugan. Scott and I worked together many years ago with Peter Angelos’s firm, and Henry is involved in the Maryland Association for Justice, where I am a board member. Both of these gentlemen are fine trial lawyers, and I take their praise of Judge Brobst as a significant endorsement.

Both of these new judicial appointments are welcomed in Baltimore County, where the caseloads have been growing, and being down a few judges has impacted the court’s ability to move the docket. Initally, my opinion is that these are two solid appointments that will beneift the Court, the parties who appear before it, and the citizens of Baltimore County.

Practice Tip For Parties On Appeal

Via Tom Goldstein of SCOTUS Blog: because the Supreme Court nearly always allows amicus briefs, when a petition for permission to file an amicus brief is filed, it looks amateurish to object.

Although I do not travel in the rariefied circles Mr. Goldstein does, I think his advice holds true for most appellate courts. I have been involved in several amicus briefs to the Court of Appeals of Maryland, and I do not recall the court rejecting a request to file an amicus brief. Since the court generally accepts interested parties’ requests to be heard, there is very little to be gained from objecting.

My Thoughts On The Terrell Suggs Case And Blog Roundup

I wonder if the lawyer representing Terrell Suggs’ girlfriend has much experience in plaintiffs’ tort litigation. Here’s why. First- filing a 70 million dollar lawsuit before the final protective order hearing is a bad idea simply because it offers a great financial motive cross-examination to the other side. Second- it hurts your settlement leverage, because for famous people silence is worth something.

Third- running to the courthouse to file a suit for money damages isn’t going to look good to your mostly conservative, Ravens fan Baltimore County jury when the battery case goes to trial. Maybe the amount of the ad damnum won’t come into evidence, but the timeline sure will. Fourth- for a case arising after 10/01/09, your non-economic damages are capped at $725,000. So I guess you have $19,250,000 in economic damages, right? That must have been a really, really bad broken nose. I guess filing for such a large amount, so quickly, did accomplish one of the goals- it got the lawyer’s name in the paper, and he smartly declined comment. I really think the primary goals- getting a determination on custody and the protective order- could best be accomplished without all of the sensationalism and media attention caused by the 70 million dollar lawsuit. After all, there are three more years to file the tort claim.

If this woman had come to me for legal representation, the first thing I would have done would be to find the most expert family lawyer I could to handle the custody and protective order case. I have handled protective order hearings before, but there are people who do that for a living, more expertly than I could. I wonder if the family lawyer representing her will associate with experienced co-counsel for the tort case? I’m curious to see how this turns out, but based on what I have seen so far, I hope Ms. Williams has some pretty compelling evidence or she could have a tough fight on her hands. Too bad there’s no grounds to transfer venue to Pittsburgh.

WhiteCoat advocates a loser-pays system in medical malpractice cases. Sure. I’ll go along with that, if it comes with automatic liability for the physician if the patient is not cured. After all, it’s fair for he who does not succeed to pay, right? Why don’t we all agree that doctors know more about medicine than lawyers, and lawyers know more about the law than doctors?
Paul Luvera has some tips for cross-examining Defense Medical Exam doctors. Paul calls this a basic outline, which it is. Miller & Zois lawyers use a much more detailed approach, but Paul provides an outstanding basic foundation for the cross.

I had never heard of Moe Levine until I got an ad for a book about him from the American Association for Justice. Then I found a closing he gave in a case about a young woman who broke her arm in a car accident. This is an outstanding effort in a case all of us have tried at least once. He truly does a wonderful job of personalizing his client’s non-economic damages in a case where there is a real, but not catastrophic, injury. Thanks to Howard Nations for providing this wonderful resource.

Don’t Let Time, Speed or Distance Sink Your Case

The way people think and speak about time is a recurring issue in personal injury lawsuits, particularly those involving auto and truck accidents. All drivers are constantly required to judge speed and distance simply to get where they are going. This leads to the perception that drivers and witnesses are able to accurately estimate time, speed and distance. However, scientific studies by professional accident reconstructionists confirm that eyewitnesses are most often wrong when they try to estimate these factors.

Often, people speak in a very non-literal way about time. A minute is seen as a very short period of time by most people. A minute is about 1/1400th of a day. When a witness says something took “about a minute” they very rarely mean that it took 60 seconds. More frequently, they mean “not very long.”

This can be extremely important in intersection cases. It may arise in the context of how long the plaintiff or defendant had to see and react to oncoming traffic. Or where a vehicle was when a light changed, or how long it took for a vehicle to travel from point A to point B.

Witnesses never realize that when they are asked to estimate time, it is rarely simply because the questioner wants to know about how long something took. You see, time/speed/distance is really just a three-sided math problem. If you know any two elements, finding the third is a simple calculation.

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Thoughts On Losing

I have but a single thought on losing: It sucks. I hate it, and I have a hard time getting past it. Thankfully, it doesn’t happen all that often.

My fiancee’s parents live next door to a lawyer I have known for many years, and used to clerk for. He lost a 2.8 million dollar judgment in a civil case. My future father-in-law likes to tease him about it. He doesn’t mean anything by it- he isn’t an attorney and doesn’t understand that what he is doing is the legal equivalent of cracking jokes to Bill Buckner about the ball that went between his legs in the 1986 World Series, causing the Red Sox to lose Game 6 and ultimately the Championship.

Here are noted trial lawyer Paul Luvera’s thoughts on losing, which I think gives a window into how trial lawyers really feel when they lose.

Everybody loses sometimes. Ted Williams hit over .400 and got to the Hall of Fame. He failed to get a hit 60% of the time. It happens to everyone (except, apparently, Gerry Spence) including me. But I don’t have to like it, and I won’t.

Defending Against Summary Judgment Motions

Yesterday I was in the Circuit Court for Baltimore City for a hearing on a motion for summary judgment filed by a defendant in a products liability case.

I think the way the hearing went down contains a lesson for defending against summary judgment motions.

My primary argument in opposition was a legal one. Without getting into the facts of the case, I thought I had a pretty strong legal argument that even if the facts were undisputed, the motion could not be granted because the defendant was not entitled to judgment as a matter of law. That was the primary argument I made in the motion papers and at the hearing.

The only problem was that it soon because apparent that the hearing judge hated this argument.

Luckily, I was able to shift to the backup argument- that the defendant had failed to show that the material facts of the case were undisputed. I was able to show the court inconsistencies between the defendant’s corporate representative’s depostion testimony and the facts he swore to in his affidavit in support of the defendants motion.

Ultimately, the hearing judge was persuaded that these inconsistencies were sufficient to preclude the entry of summary judgment.

I think the lesson here is that a defendant needs two things to get summary judgment- undisputed facts and a right to judgment as a matter of law. If you have arguments to make on both of these points, make them. The facts and the law work together, so you need to be prepared to use both in opposition.

I think it is generally best to lead with your strongest argument. But where you have more than one good-faith argument to make, do it.