Monthly Archives: April 2012

New Federal Safety Regulation Bans Handheld Cell Phones for Commerical Drivers

We all know that distracted driving is one of the leading causes of motor vehicle accidents. At this point most lawyers handling car and truck accident injury cases are asking questions in interrogatories and at depositions about possible distractions from electronic devices, cell phones in particular. Many states, including Maryland, prohibit all drivers from using hand-held cell phones. Now the feds have followed suit, imposing a similar rule for drivers of commercial vehicles (mostly tractor-trailers).
Scott Turner’s Truck Crash Blotter has a post discussing the Federal Motor Carrier Safety Administration’s (FMCSA) ban on hand-held cell phones that went into effect in January, 2012. The new rule applies to all drivers who drive routes through more than one state, and to drivers who operate only in one state if they are carrying hazardous materials.

There is a very important point in Scott’s blog post for lawyers handling truck accident cases in states without a hand-held cell phone ban. You might think that if the motor carrier defendant is operating only intrastate and not carrying hazmats, neither state law nor the new regulation would prohibit handheld cell phone use. But you might be wrong.

Many states incorporate the FMCSA safety regs into state law either explicitly or by reference. Maryland does this- the cite is COMAR 11.21.01.02. It specifically adopts the FMCSA regulations found at 49 C.F.R. 390-393, which includes the handheld cell phone band, which is 49 C.F.R. 392.82. So if we didn’t already have a state-wide ban on handheld cell phone use, the federal regulation would still apply to tractor-trailers and most other commercial vehicles. Good to know, especially if you happen to be handling truck accident injury cases in a state without an existing ban on using handheld electronic devices. Of course, Maryland lawyers should not forget that the same COMAR section also incorporates many other useful FMSCA safety regulations on topics like vehicle operation and maintenance, and driver conduct, qualifications and hiring.

Scott’s post also advocates carriers implementing a training course on distracted driving. He makes some good points in favor of this. Perhaps this is something to think about having your expert address if you are making a negligent training claim against a motor carrier in a distracted driving case.

Is Being A Bad Lawyer An Ethical Violation?

The Legal Profession Blog has a post linking to a lawyer discipline case from New York where an attorney was suspended for two years after being sanctioned by the U.S. Court of Appeals for the Second Circuit. Even after the two years is up, he can only practice again after the entry of a court order allowing it.

This is a pretty serious sanction. What did he do? Steal from a client? Miss a filing deadline? Get a criminal conviction? Was he a tax cheat? Nope. He got suspended for being a terrible lawyer. The court noted that on multiple occasions he had submitted briefs of “shockingly poor quality.” Things like getting the names of his clients wrong, including irrelevant boilerplate, referencing evidence that was never submitted, and filing the work of a paralegal without reviewing it.

I am so happy to see a court take a stand like this. My practice is 100% litigation, and you would not believe the astonishingly poor quality of some of the written material I see submitted to both trial and appellate courts. I’m not talking about proofreading or citation errors. Everybody makes a mistake sometimes. I mean stuff so appalling that it is clear that no attempt was made to edit or even read it before filing.

I have a case now where opposing counsel has filed papers with the court certifying that pleadings and discovery were served on me three weeks before the date they were actually mailed to me. When I got them, they were unsigned and turned out to be mostly gibberish. The best part, and I swear to God I am not making this up, is that they were printed in the Comic Sans typeface. I asked twice, in writing, for the filing to be corrected so the court knew the correct dates I received the material. Nothing. It’s the most astonishing thing I’ve seen in 14 years practicing law. I’m now awaiting a ruling on my second motion for sanctions.

I wish courts were more active in policing this kind of thing. But the reality is that most of the time nothing gets done about it unless the behavior is particularly egregious or it is repeated often enough that eventually a judge ends up getting really mad.

A Few Quick Hits

Here are just a few things from around the web that I thought were interesting:
THR, Esq. comments on Teller, of Penn & Teller fame suing another magician for ripping off one of his tricks. The best part of the whole thing is the illustration Teller provided when he copyrighted the trick. Awesome. I’ve seen Penn & Teller, and they rule. To show how they appreciate the audience, after every show they wait in the lobby and meet everyone, sign autographs and pose for pictures. It’s worth every penny of your entertainment dollar. Anyway, they could make that dollar disappear whether you liked it or not, if they wanted to. Just be glad they let you see the show instead.

Can an undocumented immigrant be admitted to the Florida Bar? Everyone’s knee-jerk reaction is probably to say no, but here’s the thing: there’s no rule against it.

Another vote in favor of cooperation among members of the bar- when opposing counsel asks for an extension, think about saying yes. They might get appointed to the bench engaging discussion of an article on Ten Questions You Must Be Prepared to Answer Before Oral Argument, with a hat tip to the BILB!

George Zimmerman’s lawyers have asked the judge to recuse herself. Apparently, her husband is partners with an attorney who was approached to represent Zimmerman, declined, referred him to his current lawyer, and now has been hired by CNN to comment on the case. I don’t know if that creates the quote, unquote “apppearance of impropriety,” but I do know that if I were the judge, I’d be happy to kick that traveling circus down the road. I wonder how Lance Ito’s doing now?

Defense Requests for Medical Authorizations

One thing I am seeing defense attorneys do more and more is using a Md. Rule 2-422 Request for Production to try to get plaintiffs to sign authorization forms permitting the defense to access medical and other information without a subpoena. For them, it’s a more efficient (some might say lazy) way to obtain the same material they could get by serving a subpoena on the person who has whatever records they want. For plaintiffs, it’s allowing the defense free license to root through anything they want without worrying about the protections afforded plaintiffs under the Maryland Rules and the Health General Code.

Since I see this so often, I imagine there must be personal injury lawyers out there who allow their clients to sign them. Other personal injury lawyers, that is. Not me or the lawyers in my firm.

Now, I’m a reasonable man. I’m not saying that there are no circumstances where I will allow a client to sign a defense authorization. In some cases I don’t have a choice. In first party claims against an insurance carrier for UM/UIM benefits, for example, the carrier often has a contractual right to obtain an authorization written into the policy. Or if the records being sought are maintained out of state (and therefore outside the subpoena power of a Maryland court) I will often agree to an authorization, as long as it includes appropriate limitations that I have approved in advance, like excluding records about mental health, substance abuse, or STD/HIV/AIDS treatment. If they don’t agree to my requested conditions, they are welcome to get an out-of-state subpoena issued the hard way.

I don’t believe in making opposing counsel’s life difficult just for the heck of it, although sometimes it’s tempting. But I would be remiss if I gave away my clients’ privacy protections under the law for no good reason, and that is what I would be doing by allowing my clients to sign these broadly-drafted defense authorizations.
Here is one of these requests that I just received, and my response:
REQUEST NO. 20: The Plaintiff is required to execute the attached Medical Release Authorization form and the Employment Records Release authorization form so that the Defendant may obtain any and all documents requested not currently in possession of the Plaintiff, the Plaintiff’s agents, or the Plaintiff’s attorneys.
RESPONSE: No, she’s not.
Yes, that was my actual response. I won’t deny I’m a smartass, but it’s also legally accurate.
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Another Good Tip for Structuring an Apellate Brief

One thing I always try to do when I am writing an appellate brief to to use the Table of Contents as an outline of the argument. If you can read the TOC and you don’t know my basic argument by the time you’re finished, I’ve failed. I use each section heading as a summary of the argument and each sub-heading as a summary of the main points in support. My thinking has always been that appellate courts are busy, and that making your argument concise, accessible and easy to understand is a great way to make it easy for the court to rule in your favor. It’s just good advocacy.

Jay O’Keefe’s Virginia appellate blog De Novo has a summary of a talk at The Greenbrier Resort given by Justice LeRoy F. Millette, Jr. of the Supreme Court of Virginia. Maryland and New York are the only states I know of where the highest court is called the Court of Appeals, and where its members are judges not justices. Maybe there are others, I’ve never really checked.

But anyway, Justice Millette says that a brief should be organized in “clear, outline format.” Jay agrees, adding that “it is helpful to include descriptive subject headings that reflect the outline organization of the brief.” Not only is this approach helpful from an advocacy standpoint, but it also allows nearly instant reference to any point made in the brief or oral argument.

Also, I love Jay’s description of The Greenbrier: “seizure-inducing, Technicolor grandeur.” I’ve stayed there, and it looked like Laura Ashley threw up in my room. It is located in the beautiful West Virginia mountains. Interestingly, in the 1950’s it had a giant bunker underneath where the U.S. Congress would be evacuated in the event of a nuclear attack. Now, they offer tours of the bunker. If I went back there, it would be to go see that.

OK, Who Needs A Nap?

One thing we all know is that we aren’t as sharp when we are tired as we are when we are well-rested.
That’s why some occupations have rules about on-duty hours, truck drivers for example. There are federal regulations governing how many hours professional drivers can work. Working in violation of these limitations could be considered evidence of negligence in many circumstances.

Even in the private sector, the Maryland Depatment of Transportation’s Motor Vehicle Administration requires drivers to inform the MVA’s Medical Advisory Board when they are diagnosed with certain sleep-related medical disorders, like sleep apnea or narcolepsy. “The objective of the MAB is to assess medical fitness to drive of individuals who have medical conditions that can impact on their ability to safely operate a motor vehicle.” I think we can all agree that sleep deprivation can be a major factor affecting the abilty to drive a car or truck, or operate heavy machinery.

So it was with great interest that I saw this feature in the Baltimore Sun listing the top ten most sleep deprived professions. The list was put together by Sleepy’s Mattress retailers using data compiled in the CDC’s National Health Interview Survey.

The top 10:
Home health aides
Lawyers
Police Officers
Physicians/paramedics
Economists
Social Workers
Computer Programmers
Financial Analysts
Plant Operators
Secretaries

I dont know if they were listed in order. I’m not surprised at some of these. Policemen, doctors, paramedics and plant workers often work odd shifts because they are in fields where they operate 24 hours a day. It did surprise me that economists and secretaries made the list.

Maybe all of the lawyers reading this (myself included) should make trying to get more or better rest a focus, lest we end up on the wrong side of the “v” as a result of our fatigue.