Monthly Archives: April 2010

Even If The Trial Judge Is Wrong, Storming Out Is Probably Not A Good Strategy

I often wonder what (or if) other lawyers are thinking. Here is an opinion from the Court of Appeals of Maryland reviewing the rules aplicable to holding a lawyer in direct criminal contempt of court.
This arises out of a criminal case for driving without a license. We don’t handle criminal cases at Miller & Zois, but the lesson to be learned here doesn’t have much to do with the facts of the underlying case. It is enough to observe that the defense attorney got into a disagreement wit the the trial judge about a procedural aspect of the case’s disposition. He protected his record about the disagreement, and was overruled. Then, the defense lawyer just walked out before the judge had even finished ruling. The court issued an order holding the lawyer in contempt.

The lawyer appealed to the Circuit Court, which remanded the case back to the District Court because the trial judge’s initial order of contempt did not comply with the fairly complicated and little-known procedural rules governing the imposition of sanctions for direct criminal contempt. The District Court judge then entered a revised order clarifying the original one, and still holding the lawyer in contempt. The lawyer appealed again to the Circuit Court, which this time affirmed the contempt order. The lawyer then appealed again, with the case ultimatley winding up in the Court of Appeals.

The Court of Appeals overruled the trial court because the court was allowed to enter a revised order of contempt on remand from the circuit court. The appellate court said basically, that a trial court only gets one chance to get a direct crimnal contempt right, and that if not, the contempt order must be vacated.

There was a vigorous three-judge dissent from Judges Murphy, Battaglia and Barbera. The basis for the dissent was basically that the courts have a strong enough interest in protecting the orderly administration of justice that they ought not to be prevented from entering and enforcing a contempt order just because of a procedural defect in the order that could be remedied with a revised order. I think the killer factor for the dissenting judges was that this lawyer disrespectfully walked out of the room while the judge was talking.

I agree with the dissent. I don’t care what the reason is. You can’t just decide you don’t like a judge’s ruling and walk out. That’s disrespectful in any setting, even more so in the context of an officer of the court interfering with the administration of justice. Plus, I don’t see what it does for your client in terms of advocacy. The way to handle an adverse ruling, even (or especially) one you vehemently disagree with, is to make your objection, protect your record, and go on to advocate for your client as best you can. If the trial judge was wrong, you can correct it on appeal. Allowing lawyers to do what happened here fosters disrespect for the judicial system and undermines public confidence in the law and the legal profession.

I think the Court of Appeals made the wrong move in not allowing this conduct to be sanctioned as contempt based on a procedural defect in the trial court’s original order. This illustrates why I would not be a good choice as a trial judge. Because if it were me, and a lawyer walked out of my courtroom while I was talking to him, he would be appealing to the Court of Appeals from his cell at the detention center.

I wonder if this is going to wind up as an Attorney Grievance matter, regardless of the ruling in the contempt issue. I would think so, because the ethical rules (for example, MLRPC 3.5(a)(1), which prohibits a lawyer engaging in conduct intended to disrupt a tribunal) apply regardless of the availablility of a criminal sanction for contempt. I will be shocked if the Court of Appeals just lets this slide.

Sending A Message “The Man” Will Understand

Here is a great blog post by renowned trial lawyer Paul Luvera where he talks about representing victims of an oil refinery explosion. Paul is responding to people who were critical of the victims’ families retaining counsel.

His main point is that when dealing with a large corporation, there is only one language the corporation understands- money. The only reason a corporation exists is the generation of a profit for the shareholders. All of its corporate decisions are governed by that overriding principle. Left entirely on its own, a corporation will generally do what is in its economic self-interest, whether that entails reasonable actions to promote safety or not.

When unsafe actions start to cost money (either through suits for money damages, regulatory fines, or bad publicity) is when corporate behavior changes. If you have ever seen the movie Fight Club, there is a scene where the main character describes his job as a “recall coordinator” for an automobile manufacturer. He says his job is to apply “the formula.” This is how he describes it:
“A new car built by my company leaves somewhere traveling at 60 mph. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don’t do one.”

That is essentially the corporate decision making process. Where a decision making process is governed by money, the only way to change that process is with money. Here is what Paul says about it, and I agree with him:
“Those who complain the lawyers and the families are only in it for the money and that no amount of money can make up for the harm are really suggesting we let the corporation go without paying what they owe. A lawsuit for damages is the only way civilized societies ensure that justice prevails in a tragedy like this one.”

We have a system in this country where we allow free enterprise and promote the generation of profit, sometimes to the detriment of the little guy. We also have a system where wrongdoers may be held accountable for the consequences of their actions.
It brings me back to one of my favorite quotes about the justice system. It is one of the truest comments I have ever heard:
“The system is there to bury you. Why can’t it be there to save you?” — Ice Cube.

I would rather represent David than Goliath, rather be Robin Hood than Sheriff John, and rather root for App. State than Michigan. I don’t want to be one more lawyer piling on top of someone already buried under the weight of the system. What trial lawyers do is stick up for the little guy against The Man. At least, that’s how I see my job. Maybe you disagree. I don’t care.

Maryland General Assembly Passes Jury Trial Bill

Last night, the Maryland General Assembly passed a bill to put a contitutional amendment on the ballot in November raising the jury prayer amount in civil cases. Currently, in any civil case filed seeking more than $10,000.00, the defendant has a right to a jury trial. This provision does not have an escalator allowing it to rise along with the cost of medical care and wages lost.

This bill will permit a Constitutional amendment raising that amount to $15,000.00. Because this law relates to a constitutional amendment, it needed a 2/3 majority to pass. It will now appear on the ballot in November’s general election, where it will hopefully be approved by the voters.

This is an important issue for car accident lawyers in Maryland. As an example, consider a typical soft-tissue injury case. There is an emergency room visit with X-rays and a bill from the ER physician. That’s about $800, conservatively. The client needs 8 weeks of follow-up physical therapy. That’s about $4600. Then include two weeks missed from work, at about $1400 total. That’s $6800 in out of pocket losses. If the client needs an MRI to rule out a structural problem, you are looking at $8,000 in out of pocket damages for a relatively uncomplicated sprain/strain case. Filing for $10,000 does not really provide the potential to make a recovery to adequately compensate that client. But filing for more means that the defendant may pray a jury trial and delay the case for up to a year waiting for a trial date in Circuit Court, and requiring expensive, time consuming discovery. The plaintiff may need to miss even more time from work to appear at a deposition, a court-ordered medical exam, and a settlement conference.

If the voters approve the proposed change, that case can be filed in District Court for $15,000.00 and it will stay there. This is a good change. It will keep less serious cases from clogging the Circuit Courts, and will relieve our jurors of the burden of appearing to hear these cases. A jury demand is also used tactically by defense attorneys and auto insurers in cases in this value range.

In a county with a conservative jury pool, any case over 10k will almost always result in a jury demand. This means expensive discovery, delay, and the prospect of trying the case before a panel of jurors who may very well believe their time is being wasted on a case of that size. These cases can also be more difficult to try before a jury because of the nature of the injury claimed. A muscle strain can be very painful, and can take a few months to resolve. It also does not show up on an X-ray or MRI. Even if you achieve a satisfactory result for the client, you have taken a year to do what should have been done in six months. Of course, in counties where the jury pool is perceived as being more plaintiff-friendly, jury demands are much less common.

Hopefully Maryland’s voters will make the right choice. In the context of a modern economy, $15,000 is not the huge sum it once was. The change will allow the District Court to fulfill its purpose of resolving less serious cases in a fair and expedient manner with as little cost as possible.

Look for more on this issue as the November election approaches.

Media Relations For Personal Injury Lawyers

Today I saw (via Overlawyered) a blog post by WhiteCoat where WC is critical of a poorly framed law firm press release.

He criticizes a press prelease issued by a medical malpractice law firm. It reads: “Prominent Beverly Hills Law Firm Awarded $16.5 Million Medical Malpractice Jury Verdict.” The basis for WC’s criticism is that it does not mention the client, thereby making it appear as if the award was made directly to the firm.

I don’t think he believes anyone would be misled. I think he is really pointing out that it smacks of arrogance to leave the client totally out of the equation. As he says, “Screw the client.”
I don’t really see any functional difference between that press release and one that says something like: “Renowned Neurosurgeon Ben Carson Successfully Separates Conjoined Twins.”

But I agree that it is a bad press release, and and for the same reason as WC: It’s focused on the lawyers, not the client. As personal injury lawyers, we must constantly battle public perceptions that we are all greedy and arrogant and that our clients are all liars and fakers who are seeking “lottery justice.”

What this release should have said is something like: “Jury Awards 41 Year Old Man $16.5 Million Compensation For Medical Negligence Causing Permanent Paralysis.” It is more accurate, puts the award in context, and most importantly, shows that the money was given to compensate an innocent victim for a horrific injury that happened because somebody did something wrong.

At Miller & Zois, we keep this in mind whenever whenever one of our cases gets media attention. It is always about the client. Because the case itself is always about the client.

Every media inquiry is a chance to show that big awards or groundbreaking precedents happen because deserving victims secured the justice the law demands, with our assistance. Making it about the law firm or particular lawyer plays into the hands of the enemy, namely those who foster the perception that out-of-control juries give away huge sums of other peoples’ money for every bump, bruise, or hangnail. Anybody who has ever stood before a jury in an injury case knows this isn’t true. It is stupid and counterproductive to act in a way that fosters that perception.

Is this one release a huge deal? No. Somebody’s PR people did a poor job. But cumulatively, this stuff matters. Its a subtle difference of perception that all personal injury lawyers and law firms should keep in mind in terms of media relations.

Appellate Opinion On Expert Witness Financial Bias

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases. Rod Gaston was trial counsel in Hornage; I am trial counsel in Holthus, and I was privileged to brief and argue both cases in the appellate court.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.

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Frivolity Is In The Eye Of The Beholder

There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

The comments to the Snyder story support him fully, and are appalled that he now has to pay costs. There is no mention of the amount of the verdict, and nobody called him greedy, or his case frivolous, even though he sued essentially because his feelings were hurt at a very emotionally sensitive time.

Why do people think one of these cases is frivolous and not the other? Death case= frivolous. Hurt feelings case= not frivolous. I guess frivolity is in the eye of the beholder.
Don’t misunderstand me. I don’t think either of these cases is frivolous. But there is an incredible amount of hypocrisy in calling one case frivolous but not the other, simply because one case is wrapped in the flag.