Monthly Archives: May 2010

Dog is Run Over, State Farm Demands Payment For Bumper That Hit It

From the “good neighbor” file: A Canadian family has gotten a bill from State Farm to repair a bumper that was damaged when a car ran over their dog, killing it.

Sixty days after having her dog die in her arms, Kim Flemming got a letter from State Farm demanding that she pay $1,648.95 (U.S.). When asked for comment, The Farm said “[t]hey could have made sure their dog wasn’t free on the roadway.”

Awesome! Legally accurate, perhaps. Awful public relations, certainly. I just love it when heartless corporate scum reveal themselves to be who they are.

Thanks to Walter Olson at Overlawyered for making my morning.

Charlie Crist, Qu’est-ce que c’est?

Charlie Crist is the Governor of Florida. He was a Republican, but now he is running for U.S. Senate as an Independent. He switched May 13. Relax. This is not a political post, even though I think there is an inherent hypocrisy in being a Republican on Thursday, but Independent on Friday in an election year. You won’t see much politics here, unless I am talking about tort reform (by the way, I’m against it).

Charlie Crist is getting sued by one of my favorite recording artists, David Byrne. Apparently, Byrne is accusing Crist of using one of his songs, “Road to Nowhere” by Talking Heads in a campaign ad without permission. I hate people when they’re not polite. I know, that seems like a strange title to use in a campaign ad. There is delicious irony in stealing a Talking Heads song to use in politics, a field populated by talking heads. I haven’t seen the ad, but my understanding of the context is that it is being used to take a shot at Crist’s opponent.

Byrne is mad as all get out. He is taking the “I am an artist, I do not license my songs for ads” approach, with a little “I do not want people to think I endorse this candidate or Republicans generally” thrown in. So he has filed a million-dollar lawsuit seeking damages for the unauthorized use of the song. He is represented by the same lawyer who represented Jackson Browne in a similar lawsuit against John McCain for using the song “Running on Empty” without permission. Byrne is an intelligent guy, and he makes a very credible argument as to why what was done with his song is not a legal “fair use” of the material.

Byrne’s lawyer, Lawrence Iser, has commented in the New York Times that “[a]s an attorney and the former attorney general of Florida, Gov. Crist knows better.” Come on, Mr. Iser. The guy passed the bar on his third try. He’s doing the best that he can.

Ultimately, I bet this case will go away more or less quietly. It’s not good publicity for a candidate to get sued for stealing intellectual property. But it has allowed me to achieve one of my goals for this blog- quoting “Psycho Killer” in the title of a blog post.

What Can a QB Teach Lawyers About Teamwork?

One thing I learned early on is that it is impossible to succeed as a lawyer on your own. Not in terms of practicing as a solo- there are many very good lawyers that are solos. What I mean is that every good lawyer that I have ever met has to depend on others to succeed. Our paralegals and assistants are integral to what we do.

Here is a great example of someone who truly understands that everyone needs to understand the importance of their role. That man is Mark Sanchez. If you don’t know, he just completed his rookie year as the starting quarterback of the New York Jets.
Mark is a third generation Mexican-American. Because of that heritage and his notoriety as a celebrity athlete in New York City, he was invited by President Obama to attend the most recent state dinner honoring a visit from Felipe Hinojosa, President of Mexico. Mark’s invitation came with an “and one,” sort of like bringing a date to an out of town wedding reception.

Here is where understanding how to be a leader and the value of teamwork comes in. Does Mark bring one of the many beautiful young women in NYC who would be sure to be impressed by a state dinner? Or some family member, agent, or hanger-on? No.
Who does he bring? D’ Brickashaw Ferguson. His left tackle. When Mark drops back to pass, this is the man who protects his blind side from angry, 300 pound men who want to kill him. If I were a betting man, I would bet that D’ Brickashaw now understands very well how Mark Sanchez values what he does. He took his left tackle to dinner with the President, over his mom, his girlfriend, and everyone else he could have taken.

Mark Sanchez understands teamwork. This is a good lesson for all of us.

The One Where I Update You on the Last 2 Weeks After Climbing 10 Flights and Not Throwing Up.

I arrived at the office this morning only to find that we had no power. So then I walked the ten flights up to our office suite. Once I could breathe without feeling like I was going to throw up, I made some notes that became this blog post.

It has been awhile since my last post, so I will bring you up to date.

The week before last I was out with Laura Zois mediating a serious injury product liability case. Our client was crushed by an unsafe product, leading to bilateral skull fractures and emergency brain surgery. Our efforts at settlement did not work out, so we are getting ready for a long trial that should start in six weeks. It is a lot of work, but that is what we do here, and it is the fun part!
Then last week I had a four day trial in an auto accident case in the Circuit Court for Charles County. It involved a low property damage collision, where my client’s doctors concluded that she had developed a chronic pain syndrome secondary to a minor cervical spinal cord contusion. This is a tricky case to try, because juries typically put a lot of stock in vehicle photos, and because the injury sustained was of a type that often does not appear on diagnostic studies like MRI’s, and did not in this case. Ultimately, this was a tough case that resulted in an unfortunate defense verdict. The jury just was not persuaded that the car accident caused the client’s injuries.

You cannot imagine how much I just hated writing that. Perhaps like most trial lawyers, I am very competitive. I can’t help but believe that if I am smart enough and work hard enough, I can control the uncontrollable. I think I am supposed to win every time. But nobody wins every time. OK, nobody but Gerry Spence wins every time. Our saying around the office is that if you never lose, you aren’t trying enough cases. That is another way of saying we try to be aggressive- just because the odds are against something is no reason not to try. Plus, from a client’s perspective, a personal injury lawyer who is afraid to fight is of very little value.
As I write, I am looking at a print of Muhammad Ali standing over Sonny Liston after knocking him out to defend the championship Ali won in his first fight with Liston, a fight Ali was picked to lose. If you never fight, you never win.

Then I spent Friday and Saturday with all of the other lawyers in our office attending a trial skills seminar taught by jury consultant David Ball and noted trial lawyer Don Keenan. I learned trial techniques based on groundbreaking new research, and left excited and ready for the next fight. A great way to stay motivated and to share ideas with a group of talented lawyers, including the five M&Z lawyers I work with every day.

So that brings you current on what I have been up to the last two weeks. Did you miss me? I knew you did.

Corporate Representative Depositions

I am working on a few cases involving corporate defendants of various sizes. One of the most effective discovery devices around for these kinds of cases is the corporate representative deposition.
Md. Rule 2-412 allows a corporation or other organization to be deposed through a designated representative. The way it works, is that the party seeking the deposition sends a notice, where they “describe with reasonable particularity the matters on which examination is requested.” Then the corporation must designate one or more people who will be prepared to testify regarding those matters “known or reasonably available” to the corporation.

This is a powerful discovery tool because the answers given by the corporation’s deignated representative are binding. The entity is under an obligation to have the designee review the areas upon which the examination is requested, and be prepared to give answers that will be binding. There is law saying that once a designee testifies, the corporation may not later present affidavits or other evidence in contradiction to the answers given by the designee. Under some circumstances, even an “I don’t know” can be binding on the corporation when said by its designee.

There is a great resource for preparing for these kinds of depositions produced by the National Institute for Trial Advocacy called The Effective Deposition. I started out trying cases as the only lawyer in charge of the civil docket for a small Baltimore firm concentrating in serious criminal defense. I worked with two outstanding criminal lawyers who were a great resource on trying cases generally, but not so much on civil cases. This means that to a large degree, I am self-taught, and early on The Effective Deposition was the main resource I used for preparing for depositions of all types. My subsequent experience has taught me that the advice in the book is right on the money.

I didn’t include cites, but all of the statements I made above are supported by either Maryland case law, or federal law interpreting the corresponding federal rule. Because the Maryland Rules are largely patterned on the federal rules, in the absence of controlling authority, Maryland courts look to interpretation of the federal rule for guidance.

This is true for all of the Maryland Rules, not just those pertaining to depositions. This is a very useful rule to know. If you deal regularly with procedural issues in discovery, you know that there are often not a lot of Maryland appellate cases on point. First, discovery issues are not appealable until the end of the case, so if you get a verdict it may never be appealed. Second, by then the economic realities of the case may not allow for an appeal. Finally, even if there is an appellate issue and there is the will and economic ability to appeal, the standard of review that will be applied is the very deferential “abuse of discretion” standard.

However, there is a very large body of law interpreting the federal rules, because federal trial court decisions are often reported. These may be found either in F.Supp., or in the Federal Rules Decisions. So when you have a thorny legal issue involving Maryland pretrial procedure, don’t forget that federal law may be very valuable in providing guidance. This is particularly true when you can locate and rely upon opinions authored by well-known local federal judges. I have found that Maryland trial court judges will place great weight on evidence and discovery opinions decided by Hon. Paul W. Grimm, for example.

So once you are prepared on the strategic and factual considerations involved, and know where to look for the law if you have a problem, the corporate representative deposition is a great way to learn facts and get binding answers in cases involving corporate defendants. Have fun!