Monthly Archives: June 2010

I Shall Return…

I have been away from the blog because I have been wrapped up preparing for a five-day trial in a product liability case that begins Monday.

So the blog will be on hiatus until the trial is over.
But I won’t forget about you. See you in a week or so!

Nobody is Shouting Bruce Braley Down Now

By way of full disclosure, readers should be aware that I have a man-crush on U.S. Rep. Bruce Braley.

Here’s the deal. Braley is a former president of the Iowa Association for Justice, and despite that, won election to Congress. I am also an evil, greedy trial lawyer, and I happen to sit on the board of the Maryland Association for Justice. We recently held our annual Installation Gala recognizing our immediate past president Kevin Goldberg and honoring our new president, Robert Zarbin. Congressman Braley was our keynote speaker.

As part of Braley’s talk, he played to us this clip of bad people shouting “trial lawyer” and “ambulance chaser” at him when he spoke on the House floor about patient rights during debate on the healthcare bill:

It’s funny how things change. Since the bad guys shouted good old Bruce down, there was a little oil well explosion down in the Gulf of Mexico. People seem to like trial lawyers a lot more when the stuff that “can’t happen to them,” you know, happens to them. Check out this video (HT to PopTort) of Braley ripping into a Transocean executive because his company coerced traumatized workers from Deepwater Horizon to sign affidavits the day after the accident saying they weren’t injured and didn’t witness anything. Nobody’s shouting him down now, are they?

I wish I lived in Iowa, just so I could vote for Bruce Braley.

Does the Supreme Court Lack Diversity of Experience?

Ron Miller and I have a tendency to get off-topic when we are collaborating on a case or project. One thing we have been talking about recently is judicial selection, spurred on by the recent nomination of Elena Kagan to the U.S. Supreme Court. Ron sees a lot more benefit in putting Harvard/Yale intellectuals on the Court than I do. His theory is that you are more likely to hit on a good candidate from that background that you are from say, UB Law grads. I know he will not think I did his viewpoint justice in the preceding sentence, maybe he will elaborate in his blog.

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I would like to see a much broader range of experience. I think the Court is becoming too homogenous. It is full of former appeals judges, government lawyers, and academics. By way of example, once John Paul Stevens (I just love his keyboard work on Houses of the Holy) retires, there will not be a single member of the Court who has ever served in the military. I would bet that more than half of the current Justices have never tried a jury trial, and that no more than one of nine has ever represented an ordinary person in court outside of a pro bono program in some huge law firm. On this issue, the only “maybe’s” I can find are Anthony Kennedy and Sonia Sotomayor. Kennedy at one point took over his late father’s private practice, and at some point Sotomayor worked on her own, but I couldn’t find exactly what kind of work each did. But that’s only two possibles of nine. I think that is a real problem.

The thing about the law is that it does not exist in the abstract. Certainly there are broad policy components to nearly everything the Court does. But having the brute mental horsepower to wrap your mind around those sort of weighty issues is not the whole ballgame. At some point, ALL law is ultimately applied to a specific situation. That is where the rubber meets the road. And we have a Court full of people who have never been there when that happens. We do not have one single Justice who made a career representing individual human beings.

And we never will. Never. The word you are looking for is “unconfirmable.” The day a real trial lawyer sits on the Supreme Court I will probably die from shock. We live in a world where Rep. Bruce Braley is shouted down on the House floor to cries of “trial lawyer.”
I did a minimal (and when I say minimal, I mean minimal) amount of research, and I found only two Justices who made representing real people a focus. Abe Fortas, who argued Gideon v. Wainright (the case establishing a right to counsel free of charge for defendants in criminal cases) and Thurgood Marshall who argued a case you probably have heard of, Brown v. Board of Education (school desegregation). Interestingly, Marshall also argued Murray v. Pearson in the Court of Appeals of Maryland, which resulted in the desegregation of the University of Maryland’s law school. That school’s law library is now named after Marshall.

Would the Senate confirm Thurgood Marshall today? I wonder. Just look at the recent controversy over some of his comments in the context of Elena Kagan’s nomination. In a speech in 1987 Marshall described the Constitution as originally drafted as a “defective” document. You know, because of that whole thing about it basically leaving out any rights for people who were not white males.

Kagan was a clerk for Marshall. She was attacked by Republican National Committee Chair Michael Steele as having shown “support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective.’” First, what an insane system we have where a nominee is scrutinized over what she thought of a speech her former boss made in 1987! Second, Michael Steele should thank God every day that Thurgood Marshall held those views, since if he had not, there is a good chance Steele would never had the chance to go to Georgetown or to be Maryland’s Lieutenant Governor, what with him being African-American and all.

Imagine the controversy if Marshall himself was the nominee in 2010. Staff counsel for the NAACP? These kind of things are why we have the blandest Court possible. Lawyers who hold strong beliefs and who will go to court and fight for them on behalf of average Americans will never sit on a court where having no record to critique is actually an advantage in the confirmation process. So there you go. Don’t look for me or Bruce Braley on the Supreme Court anytime soon. But, you never know. Ruth Bader Ginsburg was counsel to the ACLU.

The U.S. Senate Impedes Access to Justice

The Baltimore Sun reports that the Senate Judiciary Committee has approved President Obama’s two most recent judicial appointments for Maryland. The nominees are Ellen L. Hollander, and James K. Bredar. This means that the next step in the confirmation process is for the nominations to proceed to the Senate floor for a confirmation vote by the full U.S. Senate.

Hollander has been a judge on the Court of Special Appeals of Maryland since 1994. For out-of-state readers, this is Maryland’s intermediate appellate court where appeals of right are heard by three-judge panels. It is a court of record, where opinions may published if they touch upon issues of broad significance. I have argued appeals before Judge Hollander. She was bright and well-prepared, and has a good reputation among the bar generally.

Bredar has been a United States Magistrate Judge since 1998. A magistrate is basically “judge light.” Typically they rule over pre-trial motions, settlement conferences, and discovery disputes and issue opinions that are then adopted or approved by Article III (confirmed by the Senate) judges. Magistrates may also preside over trials by the consent of the parties. Judge Bredar has the reputation of being a good trial judge and of having skill in mediating disputes between the parties to litigation.

Neither of these nominees are particularly controversial, but that does not mean they will be quickly confirmed. According to the Baltimore Sun’s Paul West, there are 23 other judicial nominees in line for a vote before Hollander and Bredar, and the recent nomination of Elena Kagan to the U.S. Supreme Court is expected to delay the process further. There may not be a vote until late fall.

I think that sucks. I understand, but do not really approve of, the intensely political nature of appointments and confirmations for federal appellate courts. Those courts make broad rules that will affect many cases, and may alter the development of our rule of law. But these delays and investigations into nominees for federal trial courts are just stupid. U.S. District Court judges simply direct traffic at the intersection of facts and law. I don’t mean to minimize the great responsibility they have, but they do not have a far-reaching effect on the development of law and public policy. The Senate should immediately develop a streamlined process for the confirmation of trial court judges. If they are qualified, they go on the bench. This will minimize delays, lessen crowded dockets, and promote the administration of justice.

Medicare Liens

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare’s interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant’s liability insurer. And lets face it- we all know that the client and the defendant won’t have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

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Our practice at Miller & Zois is to discern early on in the client intake process whether the client is a Medicare recipient (or Medicaid,or state Medical Assistance). This lets us contact Medicare to put it on notice of the injury claim, and to request an itemization of the payments made by Medicare and a statement of Medicare’s claimed interest.

Most of this ultimately operates for the protection of the client. First, the billing for the treatment is at the lower, Medicare rate. Once we have Medicare’s itemization, we can make sure that the treatment listed is actually related to the case. It is not uncommon for a client who is in a car wreck and then suffers an unrelated injury a short time later, to have treatment for the second injury show up on a Medicare lien if the CPT codes for the treatment are similar. We also then have the opportunity to negotiate with Medicare to compromise the lien. Plus, if you don’t do this stuff, not only is the client looking at Medicare coming after them to get the money back, they may find themselves with no coverage, or their Social Security benefits could be docked to recover the payment.

As part of serving on the board of the Maryland Association for Justice, I plan and speak at a fair amount of CLE seminars. These sorts of lien issues are always a concern because of the broad reach of Medicare’s right to repayment. They are also a hot topic on our email listserve. I recommend that all lawyers do what they need to educate themselves on this issue, so they know the proper steps to take to protect their clients’ interest and avoid committing malpractice. It looks like Maryland is heading towards implementing a mandatory CLE requirement, which should help raise awareness in this area.

I Borrow (Steal) A Theme From Peter King

Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called “Ten Things I Think I Think.” He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):
Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP’s actual liability, depending on the amounts recoverable under state law. Yeah, but: lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Missisippi, Alabama and Florida have caps that would apply, but I think it’s an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.

Many lawyers in Maryland (and elsewhere, presumably) beleive that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like “within a reasonable degree of medical certainty.” First, I think that is not the law. I think it is sufficient if it is clear that the standard is “more likely than not” for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proeedings as cumbersome, time-consuming and annoying for the jury as possible?

I think Bret Michaels is getting a lot of valuable exposure for having not died. I also think it is painfully obvious that the bandanna is because he is bald. One more reason to hit the Maryland State Fair.

I think the primary function of a “Motion for Reconsideration” is to elevate legal billings. In my experience, when trial judges are presented with an additional and more detailed recitation of facts that have already been presented to them, they rarely decide they were wrong the first time. I am sure these motions have some value in making a record for an appeal, but I can’t recall ever having seen a trial judge grant one.

I think that when faced with a party or witness whose first language is not English, but has some limited proficiency, more lawyers should consider using an interpreter anyway and letting the witness testify in their native language. Interpreters have a cost and add more time to a deposition, but the transcript will be a lot more accurate. Particularly if the witness stutters and/or is a Seinfeldian “low talker.”

You may remember me blogging about a defense verdict in a tough four-day trial recently. I think is was very nice of my client to send me a thoughtful personal letter saying what a great job I did, even though we didn’t win. On balance, though, I would rather win and not get a nice letter.

Are Law Books Obsolete? Yeah, Mostly

A few of the legal assistants in our office are taking college classes in paralegal studies. The other day at an office lunch they were telling me about the coursework in their legal research and writing class. The students are taught to do legal research the old-fashioned way, with (gasp!) books. That is also how I learned to do legal research back in the dark ages (late 90’s).
It’s funny. I do the overhwelming bulk of my research online now. I can’t imagine Shepardizing a case using a book. I don’t even remember how.

But some things I think are a lot quicker and easier with a book, like looking up a Maryland statute. If I know what I am looking for I can flip right to it more quickly than I can open Explorer and search. Plus, it helps to be able to browse the sections immediately before and after for related material. There are also a few reference books that I use regularly, like Pleading Causes of Action (Sandler & Archibald) and Maryland Rules Commentary (Neimayer & Schuett). Nearly everything else I do online.

Back in the day, online research was pay-per-minute or pay-by-search, and conducted over slow dial-up connections. Now flat-rate pricing and super-fast broadband have made online research much more accessible. I can do more research more quickly this way. I can do better research too, because I can access materials that would not be found in most law libraries.

I guess knowing how to do research the old way is a good foundation for learning, but I can’t say that I would like to go back. I guess it was possible to practice law in the days before cell phones too, but I can’t say that I would want to give it a try.