Baltimore Injury Lawyer Blog

I don't write much in this space about Supreme Court, since this blog is usually dedicated to topics of interest in personal injury litigation. Even though I have an appellate practice, I don't expect to find myself preparing an argument in the SCOTUS anytime soon. I imagine I will end my legal career in the 99.995% of all attorneys who never make it to the Supreme Court.

Even so, I usually pay at least cursory attention to the goings-on down on First Street, because I find it interesting as an appellate lawyer and because I try to be a well-informed citizen. So I am aware of Clarence Thomas' well-established reputation as the Court's silent man, and that people draw varying inferences from his silence. Some think that it is a sign of closed-mindedness, an unwillingness to be persuaded, or an ideological entrenchedness. Others see it as a sign of indifference. Still others see it as a mask for intellectual weakness (an inference I find ridiculous). Even though I think it is safe to say that Justice Thomas and I are at opposite ends of the ideological spectrum, I find him to be one of the most interesting justices.

Here is a great article from The Huffington Post about one of the few times Justice Thomas has engaged with counsel at argument. In 2002, he jumped in on the side of the State of Virginia in a case testing the constitutionality of a state law making cross-burning a criminal offense. As the Court's only African-American and a man who grew up in segregated Savannah, Georgia, he made the point that cross-burning isn't expression protected by the 1st Amendment, but instead a hateful act of terror and intimidation.

The Court, of course, struck down the statute. The article quotes Justice Thomas' dissent, stating: "Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point."

Although I am sure it wasn't his intent, this illustrates neatly for me why a diversity of experience and viewpoint is a very good thing for the Court. Clearly Justice Thomas saw this issue in a different, more personal way than another person would. Just one more reminder that it's nearly always a bad idea to pigeonhole a justice, or anyone else.

In my 13 years as a lawyer, I have tried hundreds of cases ranging from District Court small claims to million-dollar jury verdicts, and including appeals to Maryland's highest court.

I am well acquainted with the idea that suprise is a trial lawyer's constant companion. The only guarantee is that you never know what will happen. Even after all that experience, if the Chief Justice of the Supreme Court of the United States walked out unannounced to hear my argument, I think I might forget my toilet training.

So when that happened to this student in a law school mock argument, I am impressed that she was able to say anything at all. This will be a nice story for this student to tell in interviews to illustrate her ability to advocate effectively under pressure.

HT to How Appealing.

P.S.- Thankfully, it doesn't look like President Obama was surprised to see him.

Is an opinion that says this:

"The events recounted in this opinion show that [lawyer] is a menace to his clients and a scofflaw with respect to appellate procedure. The district court may wish to consider whether he should remain a member of its bar. Would-be clients should consider how [lawyer] has treated Lee, Washington and Moore. [Lawyer] has not asked for a hearing on the disciplinary order to show cause, and we now conclude that he has comported himself unprofessionally. We reprimand [lawyer] for this unprofessional behavior and fine him $5,000.00, payable to the Clerk within 14 days. [Lawyer] must send Lee, Washington and Moore copies of this opinion so that they may consider whether to file malpractice suits against him."

The really crazy thing is that this is another opinion from the United States Court of Appeals for the Seventh Circuit, the same court I wrote about here. This one was written by Chief Judge Frank Easterbrook, for a panel that also included Judge Posner.

I wouldn't even call this a benchslap. They hit this guy with a baseball bat. Seriously, don't screw around with the Seventh Circuit. HT to the ABA Journal.

A benchslap is when a judicial opinion makes it clear, in no uncertain terms, that a party has done something that was not appreciated.

Via How Appealing, here is a great example of a benchslap that also makes an imortant point about appellate practice. This comes courtesy of the Hon. Richard A. Posner of the United States Court of Appeals for the Seventh Circuit:

"We'll state the facts as favorably to the plaintiffs as the record permits, as we must given the procedural posture. The statements of facts in the defendants' briefs present the evidence they'd like a jury to accept, rather than just the evidence that, being unrefuted or irrefutable, provides a permissible basis for a grant of summary judgment. Such a mode of presentation is unhelpful to the court."

This was an appeal of the entry of summary judgment against the plaintiffs. On summary judgment, the trial court can only consider undisputed material facts and is obliged to view those facts in the light most favorable to the non-moving party. The defendant's statement of facts on appeal should have recited only those undisputed material facts that would have permitted the entry of summary judgment. Instead the defendant included disputed facts that no doubt would have been more favorable.

This is a bad call for a few reasons.

First, it makes the appellate court's job tougher, because it has to sift through the facts recounted by each side and those relied upon by the trial court to determine: 1) what undisputed material facts the trial court relied on; and 2) whether those facts were legally sufficient to permit the entry of summary judgment.

Second, this approach really hurts your credibility with the appellate court. When you pull disputed facts into a case in this procedural posture, you can't be surprised if the court takes that as a tacit admission that you know that you don't win on the undisputed facts.

Third, as Howard Bashman points out, not considering the standard of review in reciting the facts can really hurt your chances of success on appeal. Essentially (this is me, not Howard), it's bad lawyering. The standard of review decides many, many cases on appeal. If you are handling that appeal, you have to know that and tailor the brief to the applicable standard.

The standard of review is a prime strategic consideration in an appellate practice. As an appellant, it affects whether to file the appeal in the first place. You won't see me filing many appeals that will be reviewed under an abuse of discretion standard. And no matter what side you are on, the standard of review is a consideration in settlement negotiations while the appeal is pending, because it affects the chances of prevailing.

Good lessons if appeals are part of your practice.

* To get the full effect of the title of this post, you have to read it aloud using the voice of Chris Tucker's character Smokey in the 1995 movie Friday ("You got knocked the **** out!").

** It is as yet undetermined whether Judge Posner "got mind control on Deebo," but I wouldn't put it past him.

We are personal injury trial lawyers here at Miller & Zois. Let there be no doubt about that. But even our referring lawyers often do not know that M&Z has one practice area that is not solely focused on representing injury victims.

That is my Maryland civil appellate practice. Although I have a record of success in appeals involving personal injury, I handle civil appeals of all types.

Last week, I was able to achieve a successful result on appeal for a client in a non-injury case. This resulted in a reported opinion in the Court of Special Appeals of Maryland. The name of the case is Capital Select Realtors, LLC v. NRT Mid-Atlantic, LLC. You can read the opinion here.

The case involved a real estate commission dispute that was submitted to arbitration. A party to the arbitration went to the circuit court to attempt to confirm the arbitration award (which basically means to turn it into a judgment that can be collected in court). Instead of just turning the arbitrators’ award into a judgment, the trial judge modified the award to add two judgment debtors. I was able to persuade the appellate court that the trial judge should be reversed because the other side had failed to follow the Maryland statutes governing the situations where a circuit court is allowed to modify arbitration awards.

The significance of this being a reported opinion is that reported opinions are published in the Maryland law reporters (here Md.App.) and can be relied upon as precedents by litigants in later cases. In contrast, unpublished opinions only govern the case at hand and are not considered legal precedents. The idea behind arbitration is that it is supposed to cut down on litigation. So there are not really that many published Maryland opinions on the topic. I think that is one reason this case resulted in a published opinion. Hopefully, this good result for my client will also be helpful to other litigants down the road.

I am currently accepting referrals (from attorneys only) for civil appeals of all types. If the case is important to you and your client, you should consider consulting with a skilled appellate lawyer with a record of good results.

I'm happy to announce that I have been named to the 2011 Maryland Super Lawyers Rising Stars list in two practice areas: Appellate and Personal Injury- General. Inclusion in the list is limited to less than 2.5% of the practicing attorneys in Maryland, and is determined by a fairly rigorous review process.

Most of our lawyers have been included on this list at various points since it began. So it is only natural that we have had discussions around the office about the value of this honor and what it means. Ron Miller blogged about this last year, when all of Miller & Zois' lawyers were named.

Does it mean the lawyers on the list are better than those who are not? No. Does it mean that if you are picking a lawyer to handle your case, you should always pick a lawyer from this list? No. There are a lot of different lawyers who excel at different kinds of cases. I personally know some outstanding lawyers who were not included. But are these kinds of lists and awards something that should be considered in picking a lawyer? Yes, along with many other factors, such as experience, trial experience and results, and substantive knowledge in particular practice areas.

At the end of the day, though, an honor like this is a good thing and I am happy to have received it. It is rewarding to have been found worthy by others in the legal community. Feel free to check it out below:

John B. Bratt

online at

visit superlawyers.com

If I only knew which one, since it's a per curiam opinion. Who says federal judges have no sense of humor? Thanks to my buddy Dave for passing this along:

A computer lets you make more mistakes faster than any invention in human history-- with the possible exceptions of handguns and tequila...

Vince v. Rock County, 604 F.3d 391 (7th Cir. 2010)(quoting U.S. v. Carelock, 459 F.3d 437 (2006)).

The Supreme Court of the United States will hear oral argument tomorrow in Snyder v. Phelps. SCOTUSblog has a great summary of the factual background and legal issues here.

This is the case where the father of a Marine killed serving in Iraq sued the Westboro Baptist Church for picketing his son's Maryland funeral. Picketing, as in standing 1000 feet away with signs such as "God Hates Fags." Westboro Baptist believes that God is killing U.S. military personnel due to our society's tolerance of homosexuality and abortion, among other crazy ideas.

Mr. Snyder sued in Maryland federal court for intentional infliction of emotional distress. And won big time, to the tune of $11 million. Not that he would ever see a nickel of it, since fringe fundamentalist churches are rarely sitting on a pile of filthy lucre. The very conservative U.S. Court of Appeals for the Fourth Circuit flipped the verdict on appeal on First Amendment grounds. Mr. Snyder and his lawyers petitioned for certiorari and the Supreme Court took the case.

I'm not sure how this will come out. I find abhorrent what these people did to Mr. Snyder. I also think that generally, the First Amendment protects our right to say whatever we want, no matter how offensive. I can't wait to see how the Court resolves this, but I hope Mr. Snyder wins. The protesters right to swing their fist ends at his nose. After all, there are a lot of places around the world where what Westboro Baptist did gets the protesters lined up and shot, not sued. Mr. Snyder's son died helping to turn Iraq from the former into the latter. Here, they can say whatever they want, but should be made to accept the consequences of doing so.

I have just discovered an interesting legal blog I hadn't seen before. The Legal Profession Blog is written by four law professors and focuses on legal ethics and issues afecting the practice of law.

The blog links to an Ohio ethics opinion suspending a lawyer for two years, for get this, looking at dirty pictures and stories depicting consenting adults, in his home, with his wife. Apparently he was also convicted of a felony for obscenity under federal law. He served 15 months in federal prison and upon release got hit with a suspension from practicing law. His story is that his ex-wife broke into his home and stole his computer, and delivered it to the FBI in order to gain an advantage in custody lititgation.

When I saw this, I thought wait, what? Then I thought some more. I suspect there is more to this than the opinion lets on. There almost has to be. I don't think that you get 15 months at Club Fed and a two-year suspension for Googling up the Kim K. sex tape. I mean, I doubt it gets you prison time if there are stories about it on TMZ.

This whole episode brings to mind Rule 34 of the Internet. Rule 34 states that if you can think of it, somebody, somewhere, has made porn of it.

Whatever this guy had on his computer had to be to the left of dirty, into the area of really, really dirty. I won't speculate since I try to keep the blog PG-13. But you can. What kind of blue material both depicts only consenting adults, and would also support an obscenity conviction? Let your mind wander, it won't take long. And when you are done you will think: "Gross!" But 15 months in prison, no more law license gross? For what you looked at on your computer, in your home, with your consenting adult wife?

So, lawyer readers, be careful what you look at. Not only might it make you go blind, you might go to prison and lose your license to practice.

The Hon. Michele Hotten was sworn in yesterday as a judge on the Court of Special Appeals of Maryland. According to news accounts, this makes her the first black female appellate judge in Maryland. Officially, anyway. I know for a fact that women of color have sat on appellate panels in Maryland by special assignment, because I have argued in front of them.

I wonder how long these kinds of firsts will continue to be relevant. I have appeared before Judge Hotten many times during her time as a circuit court judge, and I can't say that I have ever really noticed her ethnicity. Maybe to the general public, this is significant, but for me it's not an issue. There are lots of black judges in Maryland. Unsurprisingly, they tend to be a lot like the white ones. Some are great, others not so much.

I guess every time a "first" like this is crossed off the list, we as a society take one more step toward race becoming irrelevant. That is probably a good thing.

Occasionally U.S. Supreme Court Justices find the need to recuse themselves from hearing a particular case. Generally this is because of a conflict of interest. The classic example is where a Justice owns stock in a company with a case before the Court. In the near future, we will see Justice Kagan recuse herself from hearing several cases that she worked on as Solicitor General before her nomination.

This has a strange end result. Most appellate courts have an odd number of judges. The Supreme Court has nine, the Court of Appeals of Maryland has seven. The reason for this is obvious- to prevent a tie.

The potential problem is that when the Supreme Court loses a member to recusal, the case is heard by an eight-member court. This raises the possibility of a 4-4 tie. This article from the Washington Post discusses a plan to fix this potential problem. Senator Patrick Leahy has proposed allowing retires justices to be recalled for particular cases to prevent a tie, and also to promote recusal in light of an appearance of a conflict. Retired Justices occasionally sit on every federal court we have, except for the Supreme Court.

Of course, politics has reared its ugly head on Senator Leahy's very practical idea. The dispute is over how to decide which retired Justice to recall in a particular case. Basically, how to prevent the Chief Justice or whoever makes the call from cherry picking a retired Justice of a particular ideological bent in an attempt to swing the outcome of a case.

First, I think its unfair to assume conduct like this would happen. I would hope anyone who was confirmed as Chief Justice would find the thought of doing this ethically repugnant. Second, we have had this in Maryland forever, and I have never heard of such an accusation being made about our Court of Appeals.

If it were up to me, I would do it the way they hand out overtime in union factories. Whoever had the most seniority woudl get offered the chance to sit first, and then go down the list of seniority until a retired Justice volunteers. Then when there is another case, you start where you left off on the list. Seems pretty fair, right?

Since this seems practical, it will probably never happen.

I am slowly getting back into my daily routine after concluding a long trial in the Circuit Court for Baltimore City.

Regular readers (assuming there are some) know that I usually provide a summary of my cases that go to trial, but I have to sit this one out. In lieu of my usual post-game wrapup, I offer the following: "The matter resolved in a manner mutually agreeable to the parties, beyond which I have no comment."

Sorry, curious readers. Maybe next time.

But that's OK. On to the next case. And I have some interesting things cooking: a trucking accident that caused a brain injury, a retained foreign body medical negligence case, and an appeal involving the scope of a trial court's authority to confirm an arbitration award, among others. So I won't run out of cool stuff to do.

As a bonus, here is a step into Bizzarro-world. In Shady Grove Orthopedic Assoc. v. Allstate, Justice Scalia writes an opinion in favor of a class of plaintiffs, allowing a class action to proceed in federal court despite a state law that arguably would bar the action. Scalia? Plaintiffs? Wierd, huh? Really, I think this has more to do with the scope of Congress' rules enabling statute and respecting precedent than anything else. But nonetheless, Scalia gives one to the good guys. HT to SCOTUSblog.

Even more bizarre is the makeup of the majority: Scalia, Roberts, Stevens, Thomas and Sotomayor(?) Strange bedfellows indeed.

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.

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 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.

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.

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.

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.

Continue reading "Appellate Opinion On Expert Witness Financial Bias" »

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.

Maybe Georgia hates plaintiffs less than I thought.

They have a "tort reform" law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that "the right to a trial by jury shall remain inviolate." The Georgia Supreme Court recently held the cap to be unconstitutional, stating that "[t]he very existence of the caps, in any amount, is violative of the right to trial by jury." It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.

But I don't practice law in Georgia. I am stuck here in Maryland, wishing that the Court of Appeals of Maryland had shown the same courage as the Georgia Supreme Court. But alas, the Court of Appeals of Maryland considered the exact same constitutional argument, and rejected it in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1990). Our court defied logic, and held that as long as the jury determines the plaintiff's damages, the right to a jury trial is not impaired when a statute arbitrarily reduces the jury's award to a predetermined amount having nothing to do with the damages in the case.

I swear, I am not making this up. This is what the Court of Appeals of Maryland said in Edmonds:

"Section 11-108 fully preserves the right of having a jury resolve the factual issues with regard to the amount of noneconomic damages. Neither the $350,000 limit on recovery nor the provision that the jury shall not be informed of the limit, interferes with the jury's proper role and its ability to resolve the factual issues which are pertinent to the cause of action."

Basically, as long as the jury determines the damages, the Court of Appeals says that it is irrelevant that the jury's verdict will be arbitrarily ignored, and it is irrelevant that they will not be told this is going to happen.

It isn't just me thinking the Maryland ruling is illogical and legally unsupported. The Georgia Supreme Court considered the Court of Appeals' holding in Edmonds and called it "unpersuasive reasoning."

But wait! The Court of Appeals of Maryland has a chance to fix its mistake. On April 2, 2010 the court will hear argument in DRD Pool Service, Inc. v. Freed. That case has a constitutional challenge to the non-economic damages cap in non-medical malpractice cases. Hopefully, the court will get it right this time and do away with a law that does a terrible injustice to the most seriously injured Marylanders.

Our system of justice places an immense amount of trust in juries. Juries decide whether people live or die, go to prison or remain free. Why do we no longer trust them to determine damages? Presumably, the right to a jury trial was pretty important since they put it in the very document that provides for our system of government. Hopefully, our courts will restore the will of the jury to its rightful place in our civil justice system.

But I'm not holding my breath.

Here is an article about a recent opinion of the Georgia Supreme Court (that state's equivalent to the Court of Appeals of Maryland) that uphold "tort reform" laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of "tort reform" laws.

The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove "gross negligence" by "clear and convincing" evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

First, it raises the standard of proof from a "more likely than not" standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to "gross negligence", which means a failure to exercise even a slight degree of care.

I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it's all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor's malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.

The Georgia court determined that the legislature's goal of making physicians' malpractice insurance more affordable was a "legitimate legislative purpose." This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.

This rule allows a Georgia ER doctor to to walk up to a family and say something like "I am really sorry. I messed up because I just wasn't paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead." Under Georgia's standard, that doctor is probably not liable for malpractice. If you can't tell what is wrong with that, you have my pity.

I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don't intentionally hurt you.