Monthly Archives: May 2011

I Bleed More Before 6 A.M. Than Most Lawyers Do All Day


At our firm, we believe very strongly in a team concept, and that is how we handle every case from start to finish. The idea is that none of us succeeds alone.

We want our team to be strong, upbeat, and energetic. So we have been conducting weekly team-building workouts. Every Thursday at 5 a.m., eight of us meet up at Club One Fitness for a boot-camp style workout led by our very own Ron Miller.

By the time we have finished and hit the office, we are alert, in a great mood, and ready to start the day. Even when the morning workout results in what you see in the photo to the right. Other law firms may claim that they put their blood, sweat & tears into the work they do, but do they have proof? I do. Except for the tears part. There’s no crying in baseball (or litigation). And yes, after that happened, I finished the workout. I’m hardcore.

Proving Liability In “Red Light” Cases

Most lawyers who regularly handle car and truck accident injury cases are used to filing lawsuits in cases that happen at intersections controlled by traffic lights. These cases just seem to settle less often than other kinds of traffic accident cases.

I believe this is because these cases present more chances for insurance companies (and later, defense attorneys) to find a reason not to pay the claim. First, I think people are more likely to be seriously injured in intersection cases, because at least one of the vehicles involved is moving at full speed. So there is likely to be more grist for a dispute about the value of the Plaintiff’s damages claim. Second, these cases lend themselves to disputes over liability- namely, who had the right of way. This is great for the defense, because a liability dispute gives them a chance to beat the claim entirely.


In these cases it can be can be nearly impossible to prove liability without a witness, and sometimes can be problematic even when there is a witness. You may get lucky, and find that the police located a bystander witness who was traveling in the same direction as the plaintiff or defendant, and can testify as to the color of the light for that person.

Seems simple, right? Not always. What if the witness was on a cross street, and could only see her light, but not the lights that were facing either of the parties? What if there is no witness, and the defendant claims that she had the right of way because she turned left on a green turn arrow instead of a green ball where she would have had to yield the right of way? What if one or all of the signals at an intersection isn’t timed, but are instead controlled by a motion sensor?

In these kinds of cases, you need to be able to prove exactly what kind of signals were present, and what colors they would have been at different times. By way of illustration, if your witness on a cross street was looking at a particular color light, can that information be used to figure out what color the light facing the defendant was?

The only way to know is to obtain the sequencing information for the traffic control signals at the intersection. This information is readily available if you know where to look. First, find out if the road at issue is maintained by the state or county. In Maryland, this is easy to figure out. If the road has a state route number, the information you need can be obtained from the State Highway Administration. If not, each county has a traffic office that can usually provide the information you need.

Send a letter and request a copy of the sequencing information for the intersection. Make sure you specify in your request what time period you need the information for, since traffic light sequencing often changes based on traffic patterns and road usage. What I do is send a copy of the police report along with my request, so the traffic office has as much information about the intersection as I do.

When you receive the sequencing information, you most likely will not be able to figure out what it means because you will be looking at a chart that simply has the lights identified along with a series of phase numbers and timing intervals. OK. So to make sense of this you will need to have the government’s traffic engineer translate the timing chart for you. Usually, this is the person whose name was on the letter accompanying the sequencing information. But don’t pick up that phone just yet. For the engineer’s explanation to make any sense, you need to know what the intersection looks like and where the lights were located. If you have personal familiarity with the location, great, you are all set. If not, what I often do is pull up an aerial view of the intersection on Google Earth. Now I am ready to call the traffic engineer. Using the photo and the sequencing chart, the engineer can explain to me exactly which lights would be activated at particular times. Now I can hopefully use that witness on the cross street, in conjunction with the testimony of the traffic engineer, to show that the defendant had to have had a red light, or whatever else wins my case on liability.

Trust me, the defense is hoping that they can win the case by pointing out on cross that your witness couldn’t actually see the light that mattered, and then arguing you have failed to meet your burden on proving liability. Don’t let them get away with this. Close that door with the traffic engineer’s testimony and the sequencing chart, and go win your case!

Defense Medical Exams Outside The State?

I have two cases where the same issue has recently popped up. Each of these cases is pending in a Maryland Circuit Court in what I would call the “D.C. Suburbs.” Specifically, Montgomery County and Frederick County.

In each, the defense has selected a doctor or doctors to examine my clients. This is normal in a personal injury case, since the plaintiff puts his or her physical condition at issue by making a claim for damages for a bodily injury. I don’t have a problem with the defense wanting an examination of my clients, in and of itself. I agree that under Md. Rule 2-423, a court would likely find “good cause” to order an examination if I did not consent.

My problem is that in each of the cases, the doctors the defense has selected only have offices in Washington, D.C., which is outside the subpoena power of the courts where my cases are pending. So if (when) I need to serve a subpoena for deposition and document production, I would need to do all of the extra paperwork needed to obtain and serve a foreign subpoena. I don’t really think this is fair, since there isn’t exactly a shortage of Maryland doctors willing to perform defense medical examinations. If asked, I could probably give the defense lawyers a list of at least a half-dozen candidates in each specialty.

Usually, I tell the defense attorneys in these situations that I will only consent to the examination if they pick a Maryland doctor to perform it, or if the physician will voluntarily accept service of a Maryland subpoena and authorize the defense attorney to accept service. Sometimes we reach an agreement, and sometimes the defense files a motion to compel the examination.

What I would really like to see is an amendment to Md. Rule 2-423 requiring that any examination performed under the rule take place in the state of Maryland, by a physician licensed in Maryland, unless the court orders it to take place elsewhere after a showing of good cause. Other court rules address the location of events related to the litigation, so why should physical examinations be any different?

I’m not holding my breath, though.

Feasibility Study for Proposed New Baltimore City Courthouse Complex Released

The Maryland Judiciary has announced the release of a feasibility study for a proposed new courthouse complex for Baltimore City.

The study was overseen by the Maryland Stadium Authority, and performed by Washington, D.C. architectural and design firm Aecom. The study began in 2009 and has taken two years to complete.

I took a few moments and skimmed through the study. It reveals what every lawyer practicing in Baltimore City has known for years- the existing courthouse complex is outdated, inefficient, dangerous and difficult to maintain, to the point where the administration of justice is often affected. No fooling. I think the entire Baltimore legal community has agreed about this for years.


Even though the project is estimated to cost $602 million, the report does not address the elephant in the room- how to get the $602 million. Just like everybody knows the new complex is desperately needed, everybody also knows that the City is broke and the state government is facing a down economy and a structural budget deficit. And now that the GOP and the Tea Party (regardless of your political views, clearly fiscal conservatives) are running Congress, I don’t see federal funds falling out of the sky anytime soon. Particularly since Maryland and Baltimore City tend to vote solidly blue.

But if funds can be found to build the thing, the MSA and Aecom have some intriguing ideas about revenue generation. For example, the study contemplates Courthouse East including rental office space marketable to law firms. In total, the completed project is estimated to generate approximately $1.6 million annually in rental income.

Interestingly, one of the revenue options discussed is the concept of selling naming rights in a variety of different ways. I wonder if this is the fingerprint of the Maryland Stadium Authority, the folks who brought us Ravens Stadium at Camden Yards (1998), PSINet Stadium (1999-2002), Ravens Stadium (2002, after PSINet’s bankruptcy), and M&T Bank Stadium (2003-present)? Thanks, Wikipedia! An interesting idea, but not one without controversy.

How awesome would it be to try a case in “Miller & Zois Courtroom No. 5?” Unfortunately, this is as unlikely as it is cool. Nonetheless, I hope the stakeholders can find a way to fund this badly needed project.

I like Baltimore juries, but I hate dust, mold, faulty air-conditioning, broken elevators (often shared with prisoners being transported), and contaminated drinking fountains.

More Advice for Dealing With Difficult Opposing Counsel

A few weeks ago, I wrote about how to handle certain kinds of obstructive behavior from opposing counsel at depositions.

Here is a great blog post by Jay Shepherd over at Above The Law on dealing with opposing counsel who do not play well with others. See, there’s at least one schadenfreude- free reason for us scummy, small-firm, personal injury types to read ATL!

According to Jay (and I think he’s right), the key is not letting them get to you. Because getting to you is the only way they win. Lawyers like this are like children who throw tantrums. If the tantrum doesn’t get a reaction, there is no reward for the tantrum-thrower. Consequently, the tantrums become fewer.

Does anybody else have suggestions or observations on how to handle opposing lawyers behaving badly? Let me know in the comments.

One More Mediation Pet Peeve

Mediation has been on my mind lately.

I recently mediated a serious accident case with a retired Court of Appeals judge, where after a 7.5 hour mediation we were able to reach an agreement to resolve the case. This was a lot of work. A meeting to prepare the client. Draft a long (in this case 11 single-spaced pages)confidential statement to the mediator with all the facts of the case, my theory of liability, damages and an analysis of the important legal and evidentiary issues. Add exhibits showing the scene, the injuries, and key documents (deposition excerpts, witness statements, medical records). Get the exhibits turned into PowerPoint slides for the opening statement. Etc. A mediation like this amounts to about a week’s worth of work, if you include the day of the mediation itself.


A few days later, I saw a great blog post by Brian Nash, where he listed his top five pet peeves about the mediation process. And then this past Friday, I moderated a panel discussion on mediation at the Maryland Association for Justice’s Spring 2011 Auto Negligence Seminar (our mediation panelists were Hon. Clifton Gordy (Ret.), Hon. Carol Smith (Ret.), John Sandbower and Scott Sonntag).

Since I have been thinking about mediation so much lately, here is one of my own pet peeves about the mediation process- insurance companies that send a representative to the mediation who does not really have “full authority” to settle the case. I even commented on Brian’s blog post about it.

Let me explain what I mean when I say “full authority to settle the case.” To me this means that the adjuster at the mediation has the discretion to settle the case for any number between zero dollars and the defendant’s maximum legal exposure, without making any phone calls or asking anybody’s permission. This almost never happens.

Instead, you get an adjuster who flies around the country attending mediations, but who only has “full authority” to settle up to a certain pre-selected number. To go beyond that number, they need to make a phone call. This can be a huge problem in mediation. In fact, this was mentioned as an issue by both of the retired judges on my mediation panel.

A big reason mediation can be so effective is because everybody is in the room, committed to reaching an agreement. Presumably, one reason the particular mediator was selected was because both sides had a certain level of trust in that person. And that mediator can look the decision-makers in the eye, and push both sides toward an agreeement. That is, if they are actually there.

If you add in somebody who isn’t in the room, and most likely isn’t even in the state, it really hurts the mediator’s ability to work, even if they can speak to the real decision-maker on the phone. That person hasn’t been in the room, and typically doesn’t have the in-depth knowledge about the case that the people who are there do. This out-of-town decision-maker only knows what has been reported to them. Often this is only the case reports that the defense attorney periodically sends to the adjuster, and the adjuster’s file notes. They didn’t see my presentation, so they don’t know what the photos look like, how the Plaintiff presents, or anything else that has been driving the mediation.

Even worse, what if you have a case where the defense lawyer has not done a good job of preparing it for trial, or hasn’t fully investigated the plaintiff’s damages? Then the real decision-maker is operating off of incorrect or incomplete information, that I can’t correct. This makes it very tough to get an offer above the pre-selected number. Even if the real decision maker is willing to go higher when brought up to speed, they may not be able to do so without answering questions about why the case settled so much higher than it was reserved. All of this hurts the parties’ ability to get anything accomplished at the mediation.

I think I am going to start requesting as part of the mediation agreement that whoever attends on behalf of the defendant’s insurance company have my version of “full authority” to settle the case- for any number without making a phone call or getting anybody’s permission. I wonder if it will make a difference. Actually, I wonder if anyone will even agree to it.