Baltimore Injury Lawyer Blog

Uninsured/undersinsured motorist cases are probably the most complicated kind of car accident cases you will see. These cases are called "hybrid" actions because they combine contract and tort law. You have the underlying tort case against the negligent driver, along with a contract cause of action against the UM carrrier. You will have the normal concerns about proving liability and damages that you would have in any car accident case. In addition, you must be careful to prove the contract elements that you need to show entitlement to UM benefits.

These are things like the existence and extent of the tortfeasor's liability coverage, the existence and amount of the UM coverage, and the plainitff's entitlement to benefits. Obviously, you would send interrogatories to seek to establish one or more of the contractual prerequisites.

But another good way to get the needed proof is to use an under-utilized but very powerful discovery device called a Request for Admission. These are governed by Md. Rule 2-424. Basically, they are a list of facts, the existence of which the defendant is asked to either admit or deny. If admitted, the admission is considered conclusive proof of the existence of the admitted fact for the purposes of the case. They are expecially good for proving the exitence of simple "paper" facts like the ones you encounter in a UM case. Here is a set of sample requests for a UM case. Give this discovery device a try, and I think you will agree that it will greatly simplify your proof.

Here is another great real-life trial preparation tip that I have forgotten myself in the past:

Check the weather the day before!

I am finalizing my preparations for a trial tomorrow in a car accident case in Baltimore County Cicuit Court. According to weather.com, there is a 60% chance of rain tomorrow morning. So my trial prep now includes making sure I remember my galoshes, raincoat and umbrella. It is hard to make a good first impression on the jury when you look like you wore your suit in the shower. From a performance perspective, it's nearly impossible to be at your best when you have wet, cold feet. I know I look like a dork in my galoshes. A warm, dry dork. So I don't care.

I highly recommend the overshoes that I wear (pictured), the Neos Villager. They come up well over the ankle, so they work great in rain or snow. They are more costly than simple rubber ones, but they work better and last longer. Mine were a gift (thanks, Mom!) but if they ever wear out, I will gladly buy another pair.

Also, it is important to have a way to keep your trial materials out of the elements between the car and the courthouse. Using my organizational system, this can be as simple as having a big plastic bag to put over my trial box to keep everything dry on the short walk from the garage to court.

Still, I will be happier if that 40% chance of good weather ends up being what happens.

Having the right equipment is worthless unless you know how to use it. That is why the second important element to using multimedia at trial is preparation. I never, ever, ever use anything at trial that I have not practiced with. For PowerPoint, this means doing a complete practice run just as if I was at trial. This starts with unpacking and setting up the equipment from scratch. Then I click through each slide to make sure that they are in the correct order, they all work and that they appear big enough for the jury to see them.

PRACTICE TIP: I hate text slides and bullet points. So do the experts. I only use PowerPoint for images (photos and important documents) and video. I want the jury focused on me, my client and the story I am telling, not looking past me to read text on a screen. I only use text slides in two circumstances: showing jury instructions in conjunction with my argument, and showing the verdict sheet as I believe it should be completed.

The preparation for using video is basically the same, but may be even more important. If you have a malfunction in opening, you can always ditch the PowerPoint and go old school, Moe Levine-style. Heck, if handled gracefully it might even help you with the jury by humanizing you and showing you are cool under fire. Good lawyers can tell a compelling story with nothing but their words, eyes and body language. Expert video is different. You can’t toss it aside if it doesn’t work because then all of your medical evidence is gone. You have a huge hole in your case where the expert testimony on medical treatment and causation should have been. Yeah, I guess you could read the testimony into the record if there was really no other option, but that is just awful. Unpersuasive and irritating.

Play the video ahead of time, preferably as soon as you get it. Not necessarily all the way through, but enough to make sure it plays on your equipment and that the recording was made correctly. Videographers make mistakes. I have had occasions where the video had audio, but only a black screen, where the video worked but the audio track was never attached, where the audio was obscured by a loud buzzing, and where the audio level was so low it couldn’t be heard even on the loudest setting. That is why I do not recommend doing the video dry run the night before playing it. It is best to practice far enough ahead of time that you can get the videographer to fix any problems with the recording before the trial starts.

PRACTICE TIP: Most laptops have a function that automatically blanks the screen or goes to a screensaver after a certain period of inactivity. Make sure you turn this off. It sucks if the whole setup goes blank during the most important part of your expert’s testimony. Don’t ask me how I know this, but trust me on this one.

I know there are still lawyers out there who are getting good results using 20th century technology like blowups and exhibit boards. But your 21st century jury expects a 21st century trial, and your client is looking for a 21st century verdict. Being organized with the right technology and preparation will allow you to be a 21st century lawyer who can get the results that his clients need.

In Part I, I talked about how useful a set of portable office supplies can be for staying organized at trial. But that is just a small part of the required level of organization. In this installment, I discuss another vital part of my overall organizational system- the trial box. Keep in mind that I am describing how I organize the typical 2-3 day jury trial. Longer, more complex trials travel in a larger set of boxes that are organized following the same basic outline.

I have a portable file box with wheels that all of my paper materials go in. This is a collapsible plastic box the size of a milk crate with wheels and a handle- the kind you see sales reps and business “road warriors” use. I organize it from front to back using file folders and large Redweld-style folders. Less important or less frequently used items go in the back, more important or often-used items are toward the front.

Starting at the back and moving forward, this is what it contains:

•The “hard” file for the case. I include this “just in case” although I rarely use it for the trial.

•The bound “pleadings binders” containing all the pleadings filed in the case. Each of the pleadings is indexed and tabbed in chronological order for quick reference.

•A folder for defense experts. This has deposition and video transcripts, extra copies of their reports, exhibits, and cross-examination material.

•A similar folder for plaintiff’s experts, containing the same things. If there is a video deposition to be played at trial, I attach it to the transcript with a rubber band or a binder clip, so that it can’t easily be lost.

•A folder (or folders) containing all of the exhibits I intend to admit into evidence, with courtesy copies for defense counsel.

•A folder containing all motions in limine, responses, and copies of the important cases referenced.

•A folder with my requested voir dire, draft jury instructions and verdict sheet. This includes an original for the court and a courtesy copy for defense counsel. None for me- that goes in my trial binder. I clip all three together, and label the ones for the court and counsel. Once I receive the defense versions of these, they go in this folder as well. That way, later in the trial when the court wants to go over instructions on short notice, I can lay my hands on the defense version quickly.

•The “medicals binder” containing a tabbed and indexed set of the Plaintiff’s medical records and bills (I will discuss this in detail in a later post).

•My trial binder (also to be discussed later). Often this goes on top, since I use it the most and it sometimes won’t fit front to back.

•Volume I of the Maryland Rules. This contains the rules for evidence and civil procedure. In my box, it goes on the right-hand side, since the box is wider than an 11-inch folder, so there is extra room over there. I can’t believe that many (if not most) lawyers go to trial without this.

This setup lets me have most of what I need to try the case available at a moment’s notice, in a way that is easy to transport. Next in this series, I will be discussing one of the most important items needed for trial- the trial binder.

Earlier this month, I had a three-day jury trial in a car accident case in the Circuit Court for Montgomery County. I tried the case along with the referring lawyer under a Rule 1.5 fee-sharing agreement. Although he is an experienced lawyer, he had never handled a jury trial before because his practice is primarily transactional. He sat second chair, handled a few of the witnesses, and did a great job.

We do this pretty frequently here at M&Z. We encourage our referring lawyers to stay as involved in the cases as they wish. This can range from a straight referral where M&Z has primary responsibility for the case, to a true co-counsel relationship with shared responsibility where we try the case together. I love trying cases with other lawyers, whether it is splitting a trial down the middle with another experienced M&Z trial lawyer or having a less-experienced attorney sit second chair as a learning experience. We had a great time, and our client ended up being very satisfied with the jury’s verdict (which was more than 5 times the last settlement offer of the medical bills only).

Our client was a young woman who had sustained a knee injury in the accident. The defense hired one of the local “usual suspects” to perform a defense medical examination and to give opinion testimony at trial.

Continue reading "Montgomery County Car Accident Trial Report" »

When a driver gets sued for injuring somebody in a car accident, they don't have to go out and spend their own money hiring a lawyer to defend the case. They call up their car insurance company and tell it that they have been sued. They send in the papers and the insurance company provides them with a defense attorney.

Sometimes this is an "in-house" insurance defense lawyer, other times it is an outside lawyer selected and paid by the insurance company. Either way, the insurance company picks and pays for the driver's defense attorney. So what you have is a three-sided (or "tripartite") relationship- insurance company, defense attorney, and defendant driver.

Whether in-house or outside counsel, the defense lawyer has a paramount ethical duty to act in the best interest of his or her client- the defendant driver. This is true even though the insurance company selected the lawyer, is paying the lawyer's fee, and controls most of the important decisions in the litigation, including whether to settle and on what terms.

Unsurprisingly, the defense lawyer may have a certain degree of loyalty to the insurance company with the magic checkbook. Especially when the lawyer is an "in-house" lawyer who is a direct employee of that insurance company, or when the lawyer is outside counsel whose firm depends on a steady stream of business from that insurance company. I can think of at least five small local defense firms that more or less survive off of cases from one insurance carrier.

There can be instances where this dynamic can affect the course of a case. One of these is in the context of an underinsured motorist case. Assume that the negligent driver was operating a car insured by State Farm with a $30,000 coverage limit. Assume further, that my client has his own policy from GEICO with a $100,000 coverage limit. If the defendant's liability insurance is not enough to cover the damages, my client can take advantage of $70,000 more coverage through his own policy ($100,000 - $30,000= $70,000).

Continue reading "How to Make the Defendant Driver Your Ally In UIM Cases" »

Emergency Personnel Need to Know Who to Call

When it comes to being hurt in an accident, we all think that it will never happen to us. It's always the "other guy." Nobody wants to prepare for when the unthinkable happens.

But if you are seriously injured or incapacitated in an accident, you want to make sure that the authorities are able to quickly contact your loved ones. Nobody wants to sit alone in a hospital, or have a stranger making medical decisions because the authorities didn't know who to notify. Now the Maryland Motor Vehicle Administration allows you to add three emergency contacts to your personal information using your driver's license number.

Here is the MVA's website. You will want to find "Do It Now Online" on the right-hand side, and click "Emergency Contacts." Then continue to select "Emergency Contacts" in the next menu, and proceed from there. Hopefully you will never need it, but it only takes a few minutes to get a little more piece of mind.

This one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs. But how accurate is that expert's C.V.?

Often, it pays to ask. Just recently, I found three inaccuracies on a defense expert's C.V.

First, he listed himself as an instructor at a national judicial college and a guest lecturer at a local law school from "1990-present." So I did some research. I found out that the national judicial college hadn't even offered the course he taught in the last two years. I found out that the law school did not list him in the faculty directory (where even part-time and adjunct faculty are listed). When asked, he admitted that he hadn't done either of these things in at least the last five years.

He listed himself as a "consultant" to the Maryland Worker's Compensation Commission- at an address ten years out of date. His explanation was that he doesn't go there very often. I guess they don't send him mail much, either.

Now, is this a silver bullet that takes out an expert's credibility with one shot? Of course not. But if you can show the expert has misrepresented his qualifications, even a little, it's a great beginning for sowing seeds of doubt in the mind of the fact-finder. This is especially true if you can build upon this theme in the rest of the cross. How objective is the guy who embellishes (or lies) on his resume? Can you really trust his opinions? These are the questions you want in the mind of the fact-finder.

As you can tell by some of my recent blog posts, I have been spending a lot of time lately cross-examining defense medical experts. So I thought I would let you in on another fun little technique I use: Using the defense experts to bring in favorable opinions.

In cases where the plaintiff has had complicated or prolonged medical treatment, it is often not possible to present testimony from all of the treating medical professionals that had favorable opinions. This can be because of time constraints, because there would be overlap in the testimony, or because the economics of the case don’t allow it. But that doesn’t mean that there is no way to get these favorable opinions in front of a jury.

One way to do this is through the testimony of the defense medical expert. Usually these witnesses are provided with a complete set of the medical records in the case prior to examining the plaintiff and/or writing their report. Often, the report itself lists and/or summarizes everything they reviewed. The witness will usually agree that they reviewed all of the medical records and considered them in formulating their opinions.

Then I simply take the defense expert through every favorable opinion expressed by a treating doctor.

Did you review the reports of Dr. X’s treatment of the plaintiff?

The reports of the 23 visits he had between July 1, 2007 and August 28, 2008?

You agree that Dr. X had a greater opportunity to observe and evaluate the plaintiff than you did?

Did Dr. X reach a diagnosis?

What was his diagnosis?

Do you agree with that diagnosis?

Why not?

This can be a very effective approach, especially where there are several favorable opinions to work with. You have brought out that there are favorable opinions from other doctors. You have established that the other doctor(s) saw the plaintiff many times over a long interval. Finally, you have “polarized the case” by making the defense expert specifically disagree with these favorable opinions.

I can’t claim credit for these techniques. They are derived from the writings of Rick Friedman, David Ball, Dorothy Clay Sims, and others. But I am sure having fun incorporating them into my practice.

As I write this, I’m sitting in a hotel in Houston, Texas. I’m here for depositions of some out of town medical experts. So I thought I would share a great tip for cross-examining defense medical experts: Use their own ethics code against them.

Nearly every medical expert belongs to some sort of professional group that has an ethics code. The American Medical Association, American College of Surgeons, American Psychological Association, and American Association of Neurology all have their own ethics rules. So do most other medical professional groups. Sometimes they even have specific guidelines for giving expert testiomny. These can be great fodder for cross.

Most of their members are aware these ethics rules exist but are unfamiliar with their content. If they have ever read them at all it was usually years ago. But they really have no choice but to admit that the rules exist and that they are governed by them. I mean really, who would refuse to admit to being subject to their own professional group’s ethics rules?

Friday I cross-examined a neurologist who was rendering opinions on causation based solely on treatment he had given the plaintiff two years earlier over a three day period, out of six years of the plaintiff’s medical treatment. I knew he had not read the entire medical record- not the four years of records from before he saw my client or from the two years after.

So I asked him this set of questions:

You are here in your role as a neurologist?

Because you have knowledge and experience in the field of neurology that a layman does not, right?

You are offering opinion testimony in this court case based on your knowledge, training experience, and your treatment of Mr. Smith?

You are a member of the American Academy of Neurology?

You consider yourself bound by the AAN Code of Professional Conduct?

Please take a look at what has been marked as Exhibit 2, which is a copy of the AAN Code of Professional Conduct.

Allow me to direct your attention to §6.4- Legal Expert Testimony.

Please read the second sentence of §6.4- “Before giving testimony the neurologist should carefully review the relevant records and facts of the case and the prevailing standards of practice.”

Do you agree with that statement?

Have you “carefully reviewed the relevant records and the facts of the case?”

As of last Friday, you had never seen any medical records relating to Mr. Smith except the ones you created, correct?

And at that point, you had not even seen your own records since they were created in 2009?

Have you now seen any of those records? When did you look at them, how much time did you spend reviewing them? (He first saw them when he arrived at the deposition.)

As of today, have you reviewed any of the records other than your own?

You have never seen the records from the four years of medical treatment before you saw him?

You have never seen the medical records for the two years of medical treatment Mr. Smith has had since you last saw him?

Have you ever read the whole 1500 pages of medical records in this case?

You would agree that a physician who had reviewed the entire medical record would have more information available to him than you did?

Do you agree that having more information would be helpful in rendering an accurate opinion?

A physician who had access to more information than you would be more likely to render an accurate opinion?

If you had read the entire medical record, there could be things in there that might impact your opinions about Mr. Smith, couldn’t there?

You get the idea. This is just one example of how to use a medical expert’s own ethical obligations against him. There are a million things you can pull out of these various ethical codes that can be helpful in cross. It just takes a little research, and luckily most of these ethics rules are available for free on the internet.

So be creative, and have fun!

It has been a very busy summer for me and there is no respite in sight. This is a good problem to have during a time when even large national law firms have been downsizing because of a lack of work.

I just finished a jury trial in Baltimore City against two defendants - the driver who struck my client and her uninsured motorist’s insurance carrier. This lady was hit by an uninsured driver. He was uninsured because he was an excluded driver on the insurance policy for the car he was using.

At first, it didn’t seem like a terrible accident. My client first noticed back and leg pain at the scene that got progressively worse. She was taken to the emergency room by ambulance, and during her follow-up treatment she was diagnosed with two herniated discs from the accident. She was evaluated by an orthopedist who said that the two herniated discs were caused by the accident, and that her problem would be permanent. Her medical bills weren’t extreme - approximately $8,000.

The UM carrier only offered $3,000 to settle this case because the damage to the vehicles was not severe and because my client had some prior problems over the years involving back and leg pain. She had some pre-existing arthritis, but there was no evidence that she had ever had herniated discs before this accident. The insurance company hired one of “the usual suspects” to review her medical records and write a report saying that she wasn’t injured in the accident and that her problems were pre-existing. This doctor never even examined her.

The Baltimore City jury awarded more than ten times the last settlement offer - $37,000. I think that is much closer to a fair result. But my client wasn’t demanding anywhere close to $37k to settle the case. Rather than subjecting herself to a trial with an uncertain result, she would probably have settled the case for half that. The insurer could have saved itself a lot of time and money by making a fair settlement offer in the first place.

I guess I will never understand why UM carriers keep taking such hard line positions against their own insureds in settlement negotiations. I don't think juries like it when plaintiffs have to sue their own insurance companies to get the benefits they have already paid for.

There is really no way to be a competent personal injury lawyer without spending an awful lot of time reading medical records. Poring through stacks of records is boring, time consuming, and we are all faced with an ever-increasing list of seemingly more important things to get done.

Many lawyers have a paralegal read and summarize these records (if anyone reads them at all)because a) they don’t want to do it; b) they think their time is too valuable to spend on it; and c) they don't want to do it. Did I mention they don't want to do it? I did? Good.

I am not one of them, although I have an excellent paralegal who usually does a run-through of the records and attaches a cover memo pointing out entries of interest. This is very helpful, but I read them all myself every single time, and create my own contemporaneous notes. Not just the records generated as a result of treating the injury my case is about, but also any prior medical records I can get my hands on.

Why? Lots of reasons. Two sets of eyes are better than one. Maybe something got missed. Or, presumably I have a broader knowledge base, so sometimes I catch something significant that the paralegal didn’t have reason to question.

But the real reason is for my own preparation. I need to be familiar with the records to give my client advice about case strategy, to confer with my expert witnesses, and to prepare my trial presentation. Ultimately, it’s me standing in front of a jury, not my paralegal.

And for me, the best way to assimilate a large volume of material is to summarize it. It all goes back to Ms. Shuler’s 9th grade French class. I wasn’t a big note taker, because I thought I was smart enough to remember it all. I was wrong, and my grade was less than outstanding. My teacher noticed, and she started requiring me to copy down notes on the lessons and turn them in. Her theory was that “if you write it, you remember it.” Well, at least for me, she turned out to be right. My grade got better, and I still use the same method today to learn important material.

It works, but I can't say I enjoy doing it.

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!

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.

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.

Law blogs are full of "how to's" on deposition techniques. Do a quick search and you will find tons of hints of all kinds. You can find checklists, tips for client preparation or articles on effectively using exhibits. I've written some things like that myself. But today I have a quick lesson in what not to do when defending a deposition, and how to handle it when it happens.

This is from a deposition I recently took of a defendant driver in a car accident case that is pending in federal district court (I have redacted all of the names but my own):

Q. And are you contending in this lawsuit that Mr. Plaintiff is a faker?

A. Again, that is not something personally I have any evidence to suggest otherwise. I think that will come out with testimony and through this fact-finding.

Q. So is that yes, no, or I don't know?

Defense Counsel: I object. The question's been answered. Go on to the next question. That's a
dumb question.

Q. (By Mr. Bratt) I'm not sure I understand your answer, Mr. Defendant. Are you making a contention that Mr. Plaintiff is a faker in this case?

A. I am not making that contention.

Now, there are a couple of lessons here.

First, this is not how to object at a deposition. Can you spot any legally cognizable objections in what defense counsel said? Arguably, I can spot one- "asked and answered." Although I don't agree that it is a meritorious objection, at least it sounds like something that could conceivably have a legal basis. The next thing defense counsel said- "Go on to the next question", isn't an objection at all. It's just an attempt to bully and obstruct my questioning. And finally, the last part: "That's a dumb question." Really? I don't know what this is or what it was supposed to accomplish. But in any event, it isn't an objection either.

The lawyer defending this deposition (a partner at the Baltimore office of a national law firm) should have known better. What he's doing doesn't advance his client's interest or help defend the case. And let's face it, it makes him look kind of silly. Especially if someone were to put it in a blog post and make fun of him on the internet. Not that I would do that kind of thing. But you do see things like this from time to time, usually from a senior lawyer trying to bully a less experienced lawyer into accepting a non-responsive answer from the deponent.

Lesson two here is what to do when opposing counsel tries to pull something like this. There is a school of thought that believes in fighting fire with fire. Under this approach I would have acted all angry and offended, and said something like "This is my deposition, I decide when to move along and I will continue my questions until I get a responsive answer. Make your objection and then be quiet."

As you can see, that's not how I roll. I see no value in getting into arguments with opposing counsel at depositions. I just ignored the guy and kept with my examination, ultimately getting a responsive answer. And I would have kept at it until I got a responsive answer, or he instructed the witness not to answer. Instead of a useless argument with counsel, I got a responsive answer to my question.

I think I know what was really going on. This lawyer didn't know me, and we had never had a case together before. So near the beginning of the deposition, he took his shot to see if he could push me around. It didn't work, and I don't think he said anything else during the rest of the deposition.

So if this happens to you, stick to your guns and be peristent. Eventually, you will get one of two things: a responsive answer, or a transcript showing a witness being overtly evasive with the assistance of counsel. The former is what you wanted all along, and the latter has a variety of uses at trial, especially if it is on video.

Laura Zois recently wrote about a problem we are seeing more and more often in car and truck accident injury cases- mismatched experts designated by defendants. What we mean by "mismatched experts" is that the expert identified by the defendant appears to be of the wrong type, or in the wrong field.

I had this situation recently in a car crash case. My client had a shoulder injury. Specifically, an AC joint separation that required surgery. The main issue in the case was whether the shoulder surgery was causally related to the car crash. My expert witness was one of the treating doctors- a local orthopedist who specializes in upper extremity surgery. This doctor is known as one of the top shoulder specialists in the area.

The defense did what would seem like the natural thing to do- it named an orthopedist as an expert witness. The problem was that the orthopedist the defense chose limits his practice to spine surgery and does not treat shoulder problems at all.

So in addition to the two questions that Laura throws out there for these situations, here are a few of my own:

You specialize in spine surgery, correct?

The professional biography of you on your practice's website indicates that your practice is limited to spine surgery?

What is the name of the surgical procedure that Dr. X performed on the plaintiff?

When was the last time you performed that operation?

You have read Dr. X's deposition?

You disagree with his opinions?

Do you know Dr. X professionally?

What does he do?

As far as you know, he is an ethical, reputable doctor?

He is known as one of the top shoulder specialists in the metropolitan area?

Who knows more about shoulder problems, you or Dr. X?

Now, this kind of a cross only really works when your treating doctor actually is a well-known specialist at the top of his field. But you get the idea. Contrast your expert's experience and qualifications with those of the mismatched expert, with the idea being that the jury should trust the opinion of the more qualified doctor.

Today, I will be testifying before the Maryland General Assembly's House Environmental Matters Committee in favor of HB125. This bill will require the MVA to establish regulations requiring self insureds to provide the name, address, self-insurance certificate number, and claims information for the self-insurer at the scene of accidents. A hearing before a committee is one of the first steps in a bill becoming a law. Remember the Schoolhouse Rocks? Even though this is a state bill instead of a federal one, check out "I'm Just a Bill" for a basic description of the process:

Most vehicles on the road are covered by standard insurance policies issued by insurance companies everyone has heard of. State Farm, Allstate, Nationwide, Progressive, etc. Maryland law currently requires drivers involved in an accident to give the other party his name, address, vehicle registration number and insurance information. This is usually enough for the party who was not at fault to make a claim and have the vehicle damage repaired and any injuries addressed. If there is a police report, this information is included.

Where the system breaks down is in the case of a self-insured entity. Maryland law permits motorists to be self-insured if they meet certain requirements. Often, these are private buses, fleet vehicles for large corporations, or taxicabs. When a driver or owner of a vehicle is self-insured, it can be difficult to obtain the information needed to make a claim. The police report will just say "Self" in the block for insurance. Even an MVA check leads back to the owner's address. Then you have to try and get the information on how to make a claim directly from the driver or owner. Often, they "forget" to respond to your letters or calls. A cynical man might argue that this is because they have no interest in you being able to make a claim, because as a self-insured, it is their money that gets paid out.

HB 125 is a good thing not only for lawyers handling car and truck accident cases, but for all consumers. It will let the average motorist who is in a fender-bender have the information they need to get the damage to their car fixed and paid for. For those of us in the legal field, it will let us make claims more quickly and easily, and hopefully make it more likely that claims will be resolved without filing a lawsuit. I have had cases where I have had to file a lawsuit simply because I was completely unable to find claims information. If it passes, HB 125 will streamline the process for everyone involved.

Car accident claims against the City of Baltimore can be a challenge as this Maryland Injury Lawyer Blog post indicates.

I am representing a client who has been deaf from birth. Unfortunately, he also suffers from a brain injury. The combination of the two makes communicating with him challenging under the best of circumstances.

Most of us are familiar with the process of using an American Sign Language (ASL) interpreter to communicate with deaf clients. However, I just became aware of another sort of interpreter that is invaluable for communicating with deaf clients who also have diminished or different communication skills. This is a Certified Deaf Interpreter, or CDI.

ASL interpeters are hearing individuals who translate the spoken word into sign language. However, they are not able to communicate with deaf people as effectively as another deaf person can. This is because every person signs differently, and because sign is often augmented by gestures and expressions. A CDI is another deaf person who is certified as an interpreter. They assist the deaf client in understanding and responding to the translation of the ASL interpeter. This is particularly helpful for people who have communication difficulties beyond deafness, like a diminished mental capacity.

Here's how it works. A question is spoken. The ASL interpeter translates the question into sign. The CDI signs the question again to the deaf client, and then takes the client's signed answer and communicates it in sign to the ASL interpreter. The ASL interpereter then translates the answer into speech for the hearing participants.

It sounds cumbersome, and it is. It certainly adds to the time required for a deposition, for example. But having done depositions like this both with and without a CDI, I can say that for the right client, it makes a huge difference in the ability to communicate effectively.

Attorneys should also know that these kinds of reasonable accomodations are required by the ADA. Not only that, but the cost of these services cannot be passed along to the client as a case expense. My experience is that the deaf are generally aware of their rights, so you should not be surpised when you receive these sorts of requests. Afterwards, you will be glad you complied. It really makes a material difference in the quality of the representation.