Monthly Archives: February 2010

MBOP…. Not Hanson

Today is February 23. If you were wondering if any Maryland physicians were disciplined or sanctioned during the month of January, keep wondering. Because the Maryland Board of Physicians has not posted that information to its website even though we are four weeks into the next month.

I don’t know about you, but I would like to know if my doctor was subjected to discipline in January.

Trial Tips for Maryland UM/UIM Cases

Last week I spent three days trying a car accident case in the Circuit Court for Charles County. There were two defendants- the driver who caused the accident, and my client’s insurance carrier. There was a direct suit against the insurance carrier because the defendant driver had the minimum insurance permitted in Maryland (20k per person, 40k per incident), and we alleged that the plaintiff’s damages exceeded the defendant’s policy limit. So we brought in my client’s insurance company as a defendant, because there were underinsured motorists’ benefits available to cover the damages that exceeded the defendant driver’s policy.

When you are litigating against the tortfeasor and the UM/UIM carrier, there are two legal issues you should expect to address before the trial begins.

First, it is a near-certainty that the insurance company will make a motion to allow it to try the case without being identified to the jury. This makes sense from their perspective, because they do not want the jury to know that any damages will be paid by an insurance company, or that the Plaintiff was forced to sue his own insurer.
The only problem is that Maryland law on this issue is exactly the opposite. There is a 2004 case from the Court of Special Appeals of Maryland that is directly on point. It is called King v.
State Farm
When the insurance company is a party to the lawsuit, it may not remain anonymous. The insurance company may be identified to the jury, and the jury may be told why the carrier is a party to the case. I keep a copy of this case in my desk drawer, and bring it to court whenever I am trying a UM/UIM case. Normally, once this controlling authority is presented to the trial court, the insurance compnay’s motion to stay anonymous is quickly denied.

The second legal issue is that when it comes time for jury selection, the two defendants will ask the court to award them each separate peremptory challenges. In a civil jury trial in Maryland, generally each side gets 4 peremptory challenges, plus one for the alternate juror. What typically happens is that the tortfeasor and the UM/UIM carrier ask to be awarded separate sets of peremptory challenges. This would be bad for the Plaintiff, since it would give the defendants twice as much control over the makeup of the jury.

All Maryland personal injury lawyers who handle these kinds of cases need to know about Md. Rule 2-512(e). Under the rule, joint defendants are considered to be a single party for the purposes of awarding peremptory challenges unless the trial judge determines that there are “adverse or hostile interests” between the defendants AND that the nature of those interests justifies granting them separate peremptory challenges. In a typical UM/UIM case, separate strikes should not be granted because the two defendants have identical interests with respect to the plaintiff- defending on liability and damages. Even where tehre is a cross-claim between the defendants, normally their interest against the plaintiff will be identical, and therefore they should share a single set of challenges. See Kloetzi v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985).

So before you head to court to try a UM/UIM case, always be ready to address these two issues. If you try a lot of car accident cases, I recommend doing what I do. I keep the authority on these two issues in a folder in my file cabinet, and bring it with me for all of my UM/UIM trials. Since the law is generally favorable to Plaintiffs on these points, it is nearly malpractice to be unprepared to present it to the court.

Vacancy on the Court of Special Appeals

The process of selecting and retaining (or not) judges in Maryland has recently become a bit on the controversial side. Ron Miller recently wrote about how he thinks contested judicial elections are about the dumbest way imaginable to pick judges. This has been news in the leagl community, in part because of an article written by retired Baltimore County Circuit Court Judge Dana Levitz that appeared in the University of Baltimore Law Forum. Judge Levitz was sharply critical of the current process to the extent that it requires judges who are supposed to be unbiased and impartial to run in contested political elections.

The way the judicial selection process works in Maryland is that there are judicial nominating commissions for both appellate and trial courts. These comissions are made up of people selected by the Governor and elected by the state bar.

Individuals who wish to apply for judgeships are vetted and interviewed by the members of the applicable nominating comission. Those determined to be qualified become members of a pool whose names are submitted to the Governor to be considered for appointment to the bench. Once the Governor makes the appointment and the judge is sworn in, the new judge must run for retention in the next general election. This process works basically the same for both trial and appellate judges. Our next general election is in November. So any judges recently appointed by Governor O’Malley need to be ready to hit the ground running on the campaign trail so they are prepared to run in November.

This process is playing out now for applicants to the Court of Special Appeals of Maryland. The way that court is set up, there are seats dedicated to certain geographically determined appellate circuits, as well as “at large” seats. Right now there is a vacancy on the court for the seat dedicated to the Fourth Appellate Circuit, which covers Prince George’s County.

The following have been vetted by the nominating commission and have been presented to the Governor for consideration:
Honorable Toni Evon Clarke
Adrienne Morgan Davis
Honorable Melanie Marva Shaw Geter
Honorable Michele Denise Hotten
Mark Kotlarsky
Honorable Thurman Haywood Rhodes
Clarke, Geter & Hotten are sitting judges on the Prince George’s County Circuit Court. Rhodes is a judge on the District Court for Prince George’s County. Davis and Kotlarsky are private attorneys.
It remains to be seen which candidate will be selected. Or, the Governor may decide that he doesn’t like the list and ask that the vacancy be readvertised. It will be interesting to see how the selection process plays out.

Tips For Appellate Argument, Part Two

As promised, here is the second part of my thoughts on preparing and presenting appellate argument:
SHOW SOME COJONES. You are never arguing to one judge on appeal. Lets say it immediately becomes apparent that a member of the panel hates your argument. They come right after you with hard questions. Don’t back down. You are an advocate. You aren’t getting paid for your ability to show up and agree with the court. Your job is to forcefully and passionately advocate for the result your client needs, in a respectful, logical way. Plus, you do not always know what is going on. Maybe the judge grilling you is the only one on the panel who thinks you are wrong. If they back you down, you may well hurt your case with the silent majority of judges who are watching. Maybe your questioner agrees with you, but the questions are designed to show unsure members of the panel why your argument stands up under duress. You are there to make an argument. Make it. BE PREPARED TO ADDRESS ADVERSE LAW. Learning and applying the cases that support your argument is easy- especially if you wrote the brief. It is more difficult and equally important (perhaps more) to be able to distinguish the cases your opponent relies on and explain to the court why they should not control the result in your case. There are a few ways to do this. Are the facts substantially different? Are there policy reasons they should not apply? Do they rely upon different substantive law, or was the procedural posture radically different? What I do is I sit down with a yellow pad. I read and highlight the opinion without taking notes.

Then I write a detailed summary of the case and its holding. In the margin I make notes on all of the possible ways to distinguish the case. Generally, you will only be concerned with ten or so cases, unless you are arguing something truly complicated. After summarizing all of the cases, I prepare an outline with only my bullet points on how to distinguish each. Now I have an easy cheat sheet that goes in the folder I take to the podium. Even if I draw a blank mentally, a quick glance down has me right back on track.

NO INTERPRETIVE DANCE. You are not in front of a jury, and you are not Jennifer Beals in Flashdance. Moving around and waving your arms does not impress the court, and it can be pretty distracting. You want them to focus on your argument, not how well you approximate the Electric Slide. I tend to be a fidgeter, so I revert back to all those years in Catholic school. When I don’t know what to do with my hands, I fold them in front of me. For a great way to drive this home, get a video of yourself arguing, if one is available. The Maryland Court of Appeals webcasts all oral arguments. I have found watching myself to be very valuable in terms of self-scouting.

KNOW WHAT YOU WANT THE OPINION TO SAY. One member of the court in my last case asked both sides to tell him what we thought the paragraph of the opinion right before the statement of the holding should say. I think this is the essence of what you are there for. By the time of argument, if you do not know the analysis you want the court to apply, and how that analysis applies to your facts, you have messed up big time. All this means is that you should be able to summarize your argument in about a paragraph. In my briefs, normally, I have something very similar to this in my conclusion. Or, if you have briefed it right, the substance of this may be found by reading the section headings like an outline.

SKIP THE INTRO. I do not begin argument by introducing myself, summarizing the facts, explaining who the parties are, or any other preliminary B.S. like that. The court knows who I am. That is why the panel chair just indicated it was my turn by looking at me and saying “O.K., Mr. Bratt?”

I am sure that there are as many ways to do this as there are attorneys practicing appellate litigation. So if anyone has some other ideas, I would love to hear them.

Judge Sweeney On The Dixon Plea And An Unrelated Post On Appellate Brilliance

First, check out the Hon. Dennis Sweeney’s statement on the Sheila Dixon case. If you take the time to read it, you will find it very enlightening. If I’m wrong, I will refund the purchase price of this blog post.

It is clearly Judge Sweeney’s belief that the conviction was not the result of a confused jury, political play, or anything other than the fact that Mayor Dixon did some things that any reasonable person, particularly one with her intelligence and political experience, would know were stupid.

I have seen Judge Sweeney speak (in fact, the topic was professionalism and ethics), know his reputation in the legal community, and have had friends serve as his clerks. He’s now retired, because Maryland has an incredibly stupid law requiring judges to step down at age 70, but allowing them to hear cases part-time. In my opinion, all that does is bolster his props as an independent outsider. He’s legit. I am accepting his opinion at face value.

Really, this piqued my curiousity because it is an extremely rare insight into the judicial thought process. We rarely get an unvarnished version of what a judge truly thinks about a given case. It is apparent that Judge Sweeney accepted the plea deal because he found that it was in the interest of justice and in the interest of the citizens of Baltimore and the democratic process.

Oh, and he was right to stick up for the jurors. Trial by jury is the essence of democracy. Limiting the right to a jry trial makes sense only if you want to live someplace like China, Cuba, the Soviet Union or Iran. It’s not a perfect system, but it beats the alternative handily under any system of measurement you can devise.

Second, if you want to read an appellate opinion that can easily be understood by any layperson, and that also features seamless legal analysis, check out this opinion by the Hon. Charles Moylan. An easy way to spot a Judge Moylan opinion is with a scale. The heavier it is, the more likely it’s his. He tends a little to the wordy. But what’s great about him is his opinions always have everything you need to fully understand whatever he is discussing. If I am doing research, I love coming across a Moylan opinion because invariably he has collected all of the relevant authority in one place. I’m no criminal lawyer, but I had no trouble understanding the complex Fourth Amendment analysis Judge Moylan is making, and I doubt you will either.

Seriously, tell me it makes sense for this guy to relegated to part time status at age 70. That rule should really be changed.

Trial Lawyer Seeks Justice For Victim of Child Pornography

Here is a report about a New York lawyer who is helping a victim of horrific abuse. HT to Above the Law.
“Amy” was victimized by an uncle who used her as the star of child pornography. She has hired an attorney, James L. Marsh, who has had her evaluated, and has obtained expert reports showing the effects of the abuse on her, and documenting how much it has cost her in counseling, diminished wages, and lawyer fees. The total is about 3.4 million dollars.

Mr. Marsh has taken the position that every person convicted of posessing one of the images of Amy is jointly and severally liable for her damages. He has made hundreds of court filings seeking restitution on this basis. Many judges have agreed, although some have criticized this approach, arguing that the link between posessing a single image and the damages claimed is too tenuous.

Although many of these perverts are incarcerated and have little or no assets, others are comparatively well off. In the first year of this strategy, Mr. Marsh has collected over $170,000 for Amy. He is pledging 10% of his attorney’s fees to the Children’s Law Center.

Mr. Marsh’s website states that he is a member of the American Trial Lawyers Association (now the American Association for Justice), a group I am proud to be a member of. We are the greedy trial lawyers everyone is telling you are ruining America. What this lawyer is doing is in the best tradition of advocating for justice on behalf of an innocent victim.

Mr. Marsh, I salute you.