Baltimore Injury Lawyer Blog

Yesterday I spent the morning in the District Court of Maryland for Baltimore City. I was there for a trial on an injury case from a Baltimore car accident. The defendant driver was a Russian immigrant who did not speak English. His defense attorney from Geico Insurance had done what she was supposed to do- file a request for an interpreter with the court. In fact, she had done it three times, because the first two times the court sent the request back to her, even though she had done it correctly. Ultimately the case got postponed because the interpreter the court selected had car trouble and wasn't able to get to the courthouse.

But the problems defense counsel had getting the interpreter scheduled in the first place got me thinking about how efficiently different Maryland courts are administered. For example, the District Court of Maryland is a statewide unified system. There are District Court locations in all of Maryland's counties and Baltimore City, but the system itself is funded and administered at the state level. This is great in that all of the locations have similar procedures, and share a common set of forms and rules.

But on the other hand, I think most experienced Maryland lawyers have shared my experience that some of these courts seem to work more efficiently than others. For example, in a multi-defendant case, some locations automatically continue a trial date when a new summons is requested for an unserved defendant, while others do not. This can be really confusing if you often practice in a variety of locations. At Miller & Zois, we practice in every locality in the state. This means we have to pay close attention to the procedures each locality uses in setting cases for trial.

It also seems like the procedures for specially setting cases varies by district. In some counties your case will be set on its own docket, in a particular courtroom. Other places, specially set means more than one case will be on the docket, but the docket will be only specially set cases. I have also had specially set cases that were for some reason left on the regular afternoon docket.

I can't figure out why there are so many differences in what is essentially a unified court system. It would have to be more efficient if these kinds of things worked the same statewide.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Law- General , Personal Injury , Trial Strategy

Bookmark:

I just finished writing an amicus curiae brief on behalf of the Maryland Association for Justice. The name of the case is Grady v. Brown, which is pending in the Court of Appeals of Maryland. This is a Boulevard Rule case.

The Boulevard Rule is the name of a legal doctrine in Maryland and elsewhere governing the right of way of drivers at intersections. Certain roads are favored, and any traffic entering those roads must stop and yield the right of way.

The issue in the case is that the defendant driver entered the favored roadway, but only to a degree that he didn't think would interfere with the flow of traffic. He was wrong, and there was an accident.

The trial judge in the Circuit Court for Baltimore City allowed the question of the defendant's negligence to go to the jury, despite the Boulevard Rule. The appeal is on the issue of the court's denying the Plaintiff's Motion for Judgment on the issue of the defendant's negligence. Plaintiff contends that the defendant was negligent as a matter of law.

The plaintiff in the case is represented by my colleague and fellow MAJ member Irwin I. Weiss, of Baltimore County. The defendant is being represented by Mark Brown of H. Barritt Peterson & Associates, also in Baltimore County. Talented, hardworking lawyers on both sides. I am involved in this case as counsel for the Maryland Association for Justice.

Because the resolution of this issue may affect the rights of car accident injury victims across Maryland, the MAJ petitioned for and was granted permission to file a brief as a "friend of the court." This means that I wrote a brief for the court's consideration addressing the policy implications of this decision for all drivers in the state.

I have done this before- I have served on the MAJ's Amicus Committee for three years. I also wrote the amicus brief in Mundey v. Erie Insurance. I love appellate writing, and writing as amicus often allows a little more creativity than representing one of the parties to the case. Plus, this is a way to directly affect the development of the law in my primary area of practice.

The trick in writing an effective amicus brief is to remember that you have a different goal than the attorneys representing the parties. The parties are stuck with their facts, good or bad. You're not. Amicus have the ability to change the facts or argue hypotheticals in order to illustrate to the court the potential policy implications of the matter before them.

For example, in Mundey, the issue was a requirement that an insured must "physically reside" in the covered household in order to be eligible for uninsured motorists benefits. Unfortunately, the plaintiff in the case had bad facts. He had been kicked out of his parents house for getting in trouble with the law, and other misbehavior. I argued in my brief that the court should ignore the reason the plaintiff was temporarily not residing in his parents household. I argued that what was important was that the decision would affect other people who were temporarily absent from their households for a variety of beneficial reasons, and that it wouldn't be fair to issue a decision making all of those people uninsured. In order to do this I contacted the Peace Corps, the Church of Jesus Christ of Latter Day Saints, and the Marayland National Guard. They were more than happy to send me statistics showing the number of Marylanders who were temporarily absent from their households for national service, religious missions, or military service. I included these statistics in the Appendix of my brief. I think this was effective because even though Mundey lost his case, the Court of Appeals of Maryland limited its holding to the facts of that particular case.

In writing amicus briefs it is also important to remember to avoid filing what is called a "me too" brief. The court's time and attention is valuable. It doesn't help them to read a regurgitation of the arguments and analysis made by the parties. Brevity is key.

I think it is a lot more difficult to write an amicus brief where the parties are represented by quality appellate counsel. In the Grady case, Mr. Weiss did such a good job that there were policy arguments I avoided entriely in the amicus brief, simply because they had been ably addressed, and I didn't think there was value in telling the court "yeah, what he said."

The only part of writing as amicus I don't like is that under the Maryland Rules, only the parties get to present oral argument to the court. I am not sure exactly when this case will be argued, but I will be watching closely for a decision because this is an important issue in determining the rights of Maryland drivers.

Posted by John Bratt | Permalink | Email This Post | Comments (2)

Posted In: Car Accidents , Law- General , Personal Injury

Bookmark:

I just finished a trial in a car accident injury case in the Circuit Court for Baltimore City. This was a case involving a really nice lady who had suffered a soft tissue injury in a car accident. She was (I swear) just leaving church with her daughter when she was in a car crash.

There were two sides to this story, however. The defendant alleged that the accident was my client's fault, claiming she deprived him of his right of way. He retained his own personal injury lawyer and countersued, claiming his own injuries of comparable severity.

Well, the upshot is that I lost this case. The jury just thought the other side of the case seemed more likely. I'm not sure what I could have done differently that might have affected the outcome. I am going to keep thinking though. I think the property damage pictures influenced the jury's view of the mechanics of the accident.

Because of the counterclaims, there were four lawyers if this case- a plaintiff's lawyer and a defense attorney representing each side. A lot of people would say the likelihood of an experience being disagreeable is proportional to the number of lawyers involved. Actually, all counsel were people I like and found enjoyable to work with, and were experienced, competent attorneys. Everyone was civil and respectful, and did their best to do their job.

Nobody likes to lose. I hate it. I have a hard time getting past a bad result, turning it over in my mind trying to assess what went wrong, or what I could have done differently to change the outcome. But, at the same time you'll never win a fight if you're scared to take a punch.

In the end, I think I'd rather be the kind of lawyer who takes a hard loss too seriously than the kind who doesn't care.

My colleague Rod Gaston always says that only the tough cases get tried, but I can't help feeling like Reese Bobby- "If you ain't first, you're last."

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

Bookmark:

I was thinking about this topic because Monday morning I found myself in a very unusual place for a personal injury lawyer- United States Bankruptcy Court. How did I end up there?

I have an auto accident injury case pending in the Circuit Court for Charles County. I represent a plaintiff who was injured when another driver rear-ended her. During the course of that litigation, it came out that the defendant had a pending bankruptcy claim.

Defense counsel filed a Suggestion of Bankruptcy in the state court case. Pursuant to federal law, that case was stayed until resolution of the bankruptcy. This would be a bad thing, because it would mean that my injured plaintiff would be waiting more or less indefinitely to get her case moving.

There's a way around this problem. Upon proper motion, the bankruptcy court may lift the stay, where the loss is covered by insurance, up to the limit of the policy. This is because under those circumstances, the claim has no potential impact of the bankrupt estate. Once the bankruptcy court enters an order lifting the stay, the thing to do is file a motion in the state court asking that the action no longer be stayed, and that if needed, the court amend the scheduling order to account of all the time that went by due to the bankruptcy stay. Hopefully that will get my case moving again.

The experience got me thinking about appearing in unfamiliar courts in general. I'm no bankruptcy lawyer. Over my career, I've set foot in a bankruptcy court precisely one other time. So what I did Monday is what I do every time I have to appear in a court I don't know very well.

First, I got there early. This lets me get the lay of the land, and allows for a trip to the clerk's office if I need help figuring out what room the hearing is in (which in this case, I did). Second, I get into the courtroom as early as possible and check in with the clerk. I do this for two reasons. It lets me tell the clerk that I am there, and inform them as to the nature of my appearance before the court. This matters, because in terms of docket efficiency, the court will often take uncontested or preliminary matters at the beginning of the docket. Most importantly, this is my chance to ask the clerk how the court is run. What does this judge need? Where am I to stand? Are there any procedures particular to this court?

Court clerks always seem happy to help polite and respectful attorneys with this sort of "scouting report". It really does help, as I was able to get my matter called second on the docket, I knew the court's preferred procedure, and I found out that in the future, if the motion was uncontested, I could call ahead and the matter would be handled with no need for me to appear. It ended up being a very useful five minutes talking with the clerk. I recommend doing this any time you have to appear in a court you don't know very well.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

Bookmark:

We always have a few cases going on in the office involving car accident injuries caused by uninsured motorists. One of these cases had something interesting happen today.

The defendant insurance company had identified two doctors as expert witnesses. They secured an order compelling plaintiff to submit to an "independent medical examination" (three lies for the price of one, since it's not independent, nothing medical takes place, and there's barely any examination). After obtaining opinions from both doctors, the insurer withdrew one as a witness. Unsurprisingly, it was the one whose opinon was more favorable to the plaintiff.

There's a real argument to be made that this practice exhibits a lack of good faith. Shouldn't the insurer have to stand by the "independent" opinion they asked for?

Ultimately, it may not matter since there is a real chance we will call this doctor as our own expert now.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents

Bookmark:

I know I've been tagged by Ron Miller to continue a "meme" including my five favorite legal and non-legal blogs. That's upcoming, but I couldn't pass this one up.

Today's Daily Record reports that Progressive Insurance has convinced some of its customers to allow the installation of a "black box" in their vehicles that will track "abrupt starts and stops, speed, and even time of day." The data from this device will be used to compute the auto insurance rates for the customers who consent to its install. They concede this device is not something that will appeal to all drivers.

My personal belief is that anyone who would want something like this is an idiot. I want my insurance company tracking my driving habits about as much as I want the NSA reading my email. However, this blog isn't about the relative intelligence of Progressive customers.

What I am interested in is the possible effect this could have on litigating car accident injury cases. It seems to me that the data compiled by this device would be a proper subject of discovery in litigation, since it's a real-time recording of the actions of the vehicle. This will probably lead to a host of objections based on proprietary data, privacy of the driver, etc. Also, how would one get this decoded?

I can't imagine very many people would consent to such a device being installed, but eventually somebody who has one is going to get sued, and some smart plaintiff's lawyer is going to ask for the data. Then things will get interesting.

Posted by John Bratt | Permalink | Email This Post | Comments (2)

Posted In: Car Accidents

Bookmark:

Regular readers, assuming there are some, may recall my July 30, 2008 post on an Uninsured Motorist injury case I tried in the Circuit Court for Anne Arundel County.

Yesterday, I received a comment to that blog post from Mark Brown of H. Barritt Peterson & Associates, who was defense counsel in the case. This is a firm of attorneys who are employees of State Farm Insurance, and do nothing but defend State Farm and its insureds when they become involved in litigation. I deal with these folks all the time. They are one of the better staff counsel offices out there. They fight hard, but are generally reasonable in conducting litigation and easy to get along with. Mark is a nice guy and a talented lawyer who did an excellent job in this case.

I'm talking about this for two reasons. One- my personal belief is that if I am going to put myself out there and take stances on legal issues and my cases I should be prepared to stand by those positions. I could have elected to leave Mark's comment "unpublished", but I don't think that's fair. Two- I strongly believe that there are two sides to every story and that considering and discussing viewpoints that differ from my own can lead to good insights. You don't learn much discussing issues with people who already agree with you.

At Miller & Zois, we are glad defense attorneys and insurance adjusters read our blogs. We think this shows the quality of the information we provide, and that the legal community knows we will try cases and do the best we can for our clients.

Mark's additional information about the case is all correct. The client did have $60,000.00 in medical bills, including a spinal fusion surgery. I agree that the result was clearly a compromise verdict, since it awarded the medical bills only, and nothing for wage loss or pain and suffering.

I don't really see where Mark is coming from with the "editorial" comment. The fact is that State Farm did argue my client was contributorily negligent, did argue that the surgery was unrelated to the accident, and did hire a doctor to write a report saying that.

On the other hand, if Mark was talking about the part where I described State Farm as "an insurer known for its hardball tactics and low settlement offers." I agree that's "editorial." I also stand behind my comments. Ask 100 Maryland personal injury lawyers if what I said is accurate comment, and see how many disagree.

I still don't understand the settlement offer originally made. State Farm offered $7,000.00 to settle this case before trial. Even if the real value of the case at trial was just the $60,000.00 in medical bills, how on earth is $7,000.00 a reasonable settlement offer? (I am in no way trying to imply that was Mark's call, by the way.) Moreover, an offer of the amount of the medical bills would have settled the case well prior to trial.

Let's just pretend State Farm can call this one a win because the verdict didn't include all of the claimed damages. Think about that. The jury verdict is 8.57 times the amount of the settlement offer, without even awarding all of the damages claimed. This is what injury plaintiffs and their attorneys are up against.

This is similar to the experience Ron Miller wrote about in his Maryland Injury Lawyer Blog. Ron got a verdict three times the settlement offer in his case, but still "lost".

Obviously these offers are made because people take them. Ron is correct that a lot of the time clients take offers that are too low because they wish to avoid the process of going through the trial. I settled a case with State Farm today in the Circuit Court for Baltimore City under such circumstances. But, on the other hand, more lawyers should try these cases when the client is willing. Maybe this would lead to offers more in line with the actual value of cases at trial.

If you are an injured person considering hiring a personal injury attorney, ask the lawyer you are considering how many injury cases they have taken to trial in the last year. The answer will tell you a lot about the quality of the representation you will get.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

Bookmark:

Today I had a trial in an auto accident injury case. My case was in Montgomery County District Court. It was what I call a "left turn" case. The defendant driver made a left turn across my client's path, causing a pretty forceful collision.

The crash was bad enough that my guy wasn't able to tell the responding paramedics where he was or what time it was. He did know what day it was. Later he suffered from nausea, believed to be from a concussion. While he was in the hospital (2 days), he needed help from an occupational therapist to use the bathroom and to brush his teeth. Ultimately, he needed about a month of medical treatment. He was treated by the hospital's attending orthopedist and got physical therapy from a therapist that the orthopedist referred him to.

The insurance carrier contested liability at trial. The defendant driver said in his interrogatory answers that my guy was contributorily negligent because he was speeding.

At trial, he testified that he was making left turn on a yellow light. He said that he looked both ways and saw no oncoming traffic. He also said that his view of oncoming traffic was obscured, and that once he was halfway through his turn, all of a sudden Plaintiff's truck was there and there was a collision. He never said anything about my client's speed.

My guy testified that he was heading straight at about 30 miles per hour. He said that he looked up and saw the green light overhead when he was about 100 feet from the intersection. That's the last thing he remembers until he wakes up in the hospital.

In Maryland, the law is that a driver who enters an intersection on a yellow signal may lawfully proceed through the intersection, even if the light subsequently changes to red. It's also the law that a vehicle making a left turn must yield the right of way to oncoming traffic.

My theory of the case was that using the defendant's admissions, I could prove liability even though my client had no idea what happened. I thought it was likely that the light was the same for both the defendant and my guy since they were going in opposite directions on the same road.

So I subpoenaed a traffic control engineer from Montgomery County government to testify about the timing of the light. He brought a set of timing diagrams with him, and was ready to testify that if the defendant had a yellow light when he entered the intersection, so did my client. I pointed him out to defense counsel before trial, and she spent a few minutes taking to him as well. I let her know that I would be calling him to testify about the timing of the light.

This is the funny part. Then the defense attorney looks at me and says that I really didn't need to subpoena the witness, that she would stipulate the light was the same both ways. I told her its funny how when the witness shows up, everyone wants to stipulate! There's a lesson there, which is that its always more convenient to stipulate to something YOU WERE ALREADY PREPARED TO PROVE. Trust me, it doesn't work the other way around.

I won the case, because if they both entered the intersection, even on a yellow light, the defendant still had a duty to yield the right of way. Our complaint asked for $30,000.00, and the verdict was $27,000.00. That's a good result.

I actually think that the defense would have had a better shot on damages in this case if liability was admitted. For a few reasons. One, counsel could have eliminated lengthy cross-examination on liability and used that time for a detailed cross examination on damages. Two, I think the attempt to avoid fault made the defendant (an otherwise nice young guy) look bad so the court didn't have any pangs of regret making a damages award.

I'm not going be one of those guys who wins every case they blog about. "In my last triumphant victory, I blah, blah, blah…." I hate it when lawyer blogs do that. I'm going to write about the cases that end up in the loss column too. There's always something to be learned from trial experience.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

Bookmark:

There was an article in yesterday's Baltimore Sun about a young man who was seriously injured in a car accident- he was hit by a taxicab while riding his bicycle. The article focused on his struggle to obtain medical care. One of the things that was pointed out was that the taxi only had $20,000.00 in liability insurance, which is the minimum amount of insurance allowed under Maryland law. The taxi's insurer is the Maryland Automobile Insurance Fund (MAIF), which is the state's insurer of last resort.

In handling auto accident injury cases in Baltimore City, I have noticed over the years that it seems that more drivers in Baltimore City have minimum limits than in other places. Also, more often than not these are MAIF policies.

In a serious injury case, a brief stay at Shock Trauma can eat up $20k immediately. 20k isn't enough coverage for anybody. Why does our state require such a minimal amount of insurance?

I am sure some of you are saying "That's why I have high limits on my policy- so I am protected from an uninsured or underinsured motorist." Some people are thinking that it isn't fair to low income, new, or geographically disadvantaged drivers to require more insurance. Those folks pay higher premiums, so a higher insurance requirement would be a financial hardship.

Well, there are a lot of people who aren't covered by any UM policy. For example, a person who doesn't own a car and does not live with a relative who owns a car is not likely to have any coverage available for UM/UIM. For example, my elderly aunt who doesn't drive but frequently walks to take care of her errands. Also, insurance isn't really that costly. What really hurts low income/high risk drivers is that they are often limited to coverage through MAIF. The problem is that MAIF requires payment up front on their policies, so consumers are at the mercy of financing companies that put up MAIF's premium and charge interest on monthly payments. Someone who has a minimum policy is also unlikely to have assets to pursue to satisfy an excess judgment.

What kind of public policy is this? Is the state promoting irresponsibility at the expense of victims? Maybe we would be better off if the required minimum were higher, even if it made insurance more costly for some people. Driving isn't a right. Should we help out people who can't really afford to drive at the expense of those who are just trying to walk around safely?

Other laws requiring set amounts of money have built in increases over time, like Maryland's statutory cap on non-economic damages. Why can't our mandatory required insurance be modified as well?

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents

Bookmark:

I recently finished a jury trial in a really tough uninsured motorist case. This was a case involving a woman who was struck as a pedestrian while she was crossing a parking lot. What made this particular case so difficult was my client’s history.

This unfortunate lady was involved in two other accidents the same month, luckily after the accident I was handling. Additionally, she had no less than five prior injuries to the same body part, one of which resulted in a 20% permanent partial disability. Her damages in my case included a torn lumbar disc documented by discography and a corrective surgery.

This case was against State Farm, an insurer known for its hardball tactics and low settlement offers. In fact, the American Association for Justice recently named State Farm the 4th worst insurer for consumers. The last settlement offer we received was $7,000.00, which we viewed as very low in light of the client’s injuries.

State Farm is unusual because in UM cases, once they establishes what they think the case is worth, they send the claimant a check for that amount. This is regardless of what recovery is eventually made. Namely, if the client had gotten nothing, she wouldn’t have had to pay it back. This is an admirable principle, but it would be more effective if the values placed on these matters were in the range of the actual value at trial.

In defending this case, State Farm followed its established “deny, delay, diminish” playbook. First, the insurer argued the accident was really the client’s fault anyway, despite the uninsured driver being ticketed, failing to appear in traffic court, and failing to appear for our trial. Second, they argued that her injury and surgery weren’t related to the accident, and that she only sustained a minor soft tissue injury. To that end, they hand-picked a doctor to create a five-page report saying so.

Thankfully, the jury was able to see past these tactics, and ultimately awarded my client $60,000.00. This is even though this case was in Anne Arundel County, which most injury lawyers view as a very conservative jurisdiction.

Posted by John Bratt | Permalink | Email This Post | Comments (2)

Posted In: Car Accidents

Bookmark:

I received a motion to compel my client to execute a medical records authorization in a personal injury car accident case earlier this month in Prince George's County.

If you are every faced with this issue, you can click here for my response. Even if you are not in Baltimore, the logic of the motion will apply to most jurisdictions and most states have rules similar to the Maryland Rules on this issue.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents , Trial Strategy

Bookmark:

It’s an acronym used by insurance companies to describe certain kinds of auto accident injury claims. It stands for Minor Impact, Soft Tissue. Some insurance companies have a policy of denying these type of claims, notably GEICO. What the Baltimore injury lawyer gets in response to a demand package is a letter from a claims adjuster that says “we are unable to understand the nature of the injuries claimed in light of the minor damage to the vehicles involved.” This is true even though liability may be unquestioned, like in a rear-end collision.

The problem with this unfair claims policy is that people DO get injured in auto accidents where there is little damage to the vehicles. I suppose this policy saves the insurance companies in a macro-economics sense, otherwise they wouldn’t do it. Insurance companies get a lot wrong, but usually their instincts are pretty good when it come to trying to keep their money. I think they are relying on lazy plaintiff’s injury lawyers who settle all of their auto accident injury cases. If the only way to make a recovery on a case is to go to trial, I’m sure there are a percentage of lawyers who won’t bring these cases, especially since the possible recovery is usually quite modest.

In a micro-economics sense, this policy is worthless. These kinds of cases can be, and are won at trial. Other lawyers in our firm have had great success in trying auto accident injury cases where there is little or no property damage. I took an informal poll around the office, and none of us can recall trying a case like this and not recovering damages (other then where there was a liability issue).

I’ve also found that being willing to try these cases is great for client relations. Clients view a MIST letter as the insurance company saying they are lying. Clients aren’t stupid- this is exactly what the carrier is doing. Nobody is going to come back to an injury lawyer who is unwilling to fight for them. I actually really enjoy trying these cases. It’s a challenge, and a great way to hone your trial presentation skills.

The key to doing this successfully is exercising care in case selection and trial preparation. Obviously, there are no cases where this isn’t important, but in these cases, often that’s all you’ve got.

Take care to find out if your client has a history of prior claims, particularly for the same kind of collision or injuries. Also review the medical records with care. If there is an ER visit, compare the complaints at the ER to the complaint made to the doctors who provided the follow-up care. Also look for objective verification of injury, such as an x-ray, ct scan, or MRI showing a straightening of the normal lordotic curve of the spine.

Also, get to know your client. The client’s background and impression are the key to your case. If your client is established, has a family, and has a good track record of employment, there are fewer reasons for a judge or jury to doubt her injury claim. I tried a claim like this where my client had been employed for 11 years as an ER nurse at a large Baltimore hospital, which originally diagnosed her injuries. The defense had a hard time attacking her credibility as a witness, even though she had a similar prior claim.

I’m not suggesting that injury lawyers actively seek out these kinds of cases. But on the occasions where you find yourself facing a MIST defense, remember that you can try and win these cases.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents

Bookmark:

I think one of the tougher things to do in preparing an injury case for litigation can be determining the proper court and ad damnum amount for suit. This usually comes up in cases where the damages are significant enough that the case can’t be filed in the District Court for $10,000.00 or under.

The injury lawyer handling the case then has to decide whether to file in the District Court for $30,000.00, or to seek a higher amount and file in the Circuit Court. This can be a tricky decision, and there are a number of factors that come into play. For example, does the case justify the cost of paying the doctor to testify live at trial or on video? Where the case is too large to be filed for $10,000.00 is too small to justify filing in the Circuit Court, the only option is to file for $30,000.00 in the District Court.

This raises the possibility that the defense may pray a jury trial. In Maryland, defendants have a right to a jury trial in any injury case where the damages claimed are $10,000.00 or more. This means that you are going to wait longer for trial, spend more time conducting discovery, and spend more money getting the case ready.

What can be done about this? Make sure that the defendant has followed the rules. A defendant must file a jury demand within ten days after the time for filing a notice of intention to defend. Md. Rule 3-325. Normally, a notice of intention to defend must be filed within fifteen days after service of the complaint. Md. Rule 3-307. So generally, a timely jury demand must be made within twenty-five days after service of the complaint. If the jury demand is not timely, the right to a jury trial is waived. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001).

Any motion to strike a jury demand must be filed in the Circuit Court once the record has been transmitted there. Md. Rule 3-325(c). This procedure can help you make sure that the cases you file in the District Court stay there.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents , Trial Strategy

Bookmark:

I’ve heard plaintiffs’ depositions in injury cases described as “beauty contests.” This is because the deposition of the plaintiff in an injury case is often the defense attorney’s first chance to actually lay eyes on the plaintiff. This is essential to properly evaluating the plaintiff’s likelihood of success at trial because the plaintiff’s appearance, manner of speaking, command of details, and likeability all have an impact on the jury. This is particularly true with respect to pain and suffering damages. The jury is unlikely to make a large damages award to a plaintiff that doesn’t appear likable or believable.

The title of this post, which may be me trying to be too cute, is a reference to the last two pageant winners to hold the title Miss USA. Both of these young ladies had the misfortune of making the Miss Universe pageant, only to trip and fall during the evening gown portion of the event. I am sure both of these ladies are hardworking, intelligent and generally graceful. Unfortunately for them (neither became Miss Universe) it is very difficult to overcome a negative impression.

The same holds true for the plaintiff’s deposition. Careful preparation can keep your client from falling on her face at deposition. As a group, injury lawyers are prone to forgetting that the average person has no idea how the litigation process works.

First, I always make sure that the client has a firm understanding of the purpose of the deposition, and the likely topic areas. Normally, the deposition has three parts, which I like to call Background, Facts and Medical/Damages. I explain the kinds of information that is usually included in each part.

Second, if there are facts crucial to the litigation, I make sure the client is aware of these areas. I hand out homework. The client should get a copy of her Answers to Interrogatories, medical records and bills, and any other important documents. This way the client knows the contents of any prior statements made in discovery or contained within the medical records. I also make sure the client gets to read the defense medical examiner’s report, if there is one.

Third, I explain the expected attire. So far I have not had anyone be offended by this- most people who are unfamiliar with the legal process are uncertain about what to wear. I make sure the client has the address of the location where the deposition will be held, and that they have my cell phone number in case of any last minute changes.

I think the attention paid to these issues helps clients make a better presentation at the deposition. It also sets a good foundation for getting the client ready to testify at trial.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents

Bookmark:

I love Joe Pesci, and one of my favorite scenes of his is from My Cousin Vinny where he uses the time it takes to cook a pot of grits to cross examine a witness about his misperception of time.

According to the Court of Appeals of Maryland, the laws of physics are irrelevant to the laws of this state. In Mason v. Lynch, 388 Md. 37, 878 A.2d 588 (2005), the Court of Appeals of Maryland held that photographs of minimal vehicle damage are relevant as to the question of whether a plaintiff was injured in a auto collision injury case. The court held that common sense tells us that there is “a correlation between the nature of the vehicular impact and the severity of the personal injuries.”

The court didn’t seem to mind that the weight of scientific authority says exactly the opposite. The two dissenting judges, the Hon. Irma S. Raker and Chief Judge Robert M. Bell, actually quoted a scientific study that concluded “the assumption that injuries relate to the amount of external vehicle damage in all types of crashes has no scientific basis.”

Apparently the majority felt that our courts should rely upon “common sense” even when scientific fact tells us that common sense is wrong.

At various points in history common sense told us that the world was flat, and that the stars and planets revolved around the earth. I doubt the Court of Appeals of Maryland will be endorsing these theories anytime soon.

Since apparently “the laws of physics cease to exist in this state”, Baltimore car accident lawyers must continue to contend with the defense argument that low or no property damage equals little or no injury, and that common sense tells us that anyone who says otherwise is lying. There are a few ways to deal with this.

One is to be absolutely upfront. Don’t try to say the pictures show anything but what they show. To do otherwise kills your credibility with the judge or jury. Concentrate on making sure the injury victim is able to describe her movements in her vehicle, whether she hit any part of the interior, and what the force of the collision felt like. Also rely on any “independent” verification of injury, such as ER or ambulance records.

I have also heard other ways to minimize this kind of problem. Author and trial consultant David Ball suggests using a high school physics teacher to explain the physics of force transfer. I don’t know if this would work, but it’s an idea to think about. Some lawyers will use a biomechanics expert to get the same testimony. I wonder if one would be able to cross examine defense doctors who use the lack of vehicle damage to support their conclusions by using the studies that Judge Raker and Judge Bell quote? Maybe that is a technique to try the next time this issue comes up.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents

Bookmark:

There’s currently an opening on the District Court of Maryland for Baltimore City, as a result of the retirement of the Hon. Charlotte M. Cooksey. It will be interesting to see who is appointed to fill this seat. Judge Cooksey primarily heard criminal cases, but it’s always possible that her retirement may result in some shuffling around of the judges among the various Baltimore City court locations.

The makeup of the District Court bench is always a topic of conversation among Baltimore injury lawyers. That court has the reputation of being a very conservative court on damages issues. Most of the lawyers I know agree that trial verdicts in the Baltimore City District Court tend to be lower than in other jurisdictions.

When I am handling a Baltimore injury case, I generally pay close attention to venue issues. Often, there are several jurisdictions where the case can be filed. Just because a truck or auto accident happened in Baltimore City doesn’t necessarily mean the case must be filed there. Venue is proper where any defendant resides, or has its principal place of business. This allows some flexibility in selecting venue, and one of the considerations any injury lawyer must look at is the likelihood of obtaining a favorable damages award.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents

Bookmark: