Car Accidents

How to Make Sure A Corporate Representative’s Deposition Testimony Sticks at Trial

In my opinion, one of the most powerful, yet underused, discovery devices around is the corporate representative deposition. This is because whomever is selected as the representative bonds the corporate entity with whatever their answers are. They are not testifying based solely upon their personal knowledge, but based upon all information known or available to the corporate entity.

That is the reason that the notice of the deposition must list the topic areas to be addressed- so that the corporation can select an appropriate designee who will be prepared to testify as to each of the topics. deposition4 (3)

I am usually taking corporate representative depositions in limited categories of industries: trucking, bus or taxi companies, other entities that employed a driver involved in a collision, or representatives of insurance companies. What I have found is that often the individuals produced to testify either have not been properly prepared by counsel, or they have not taken steps to familiarize themselves with the topic list, or have not made a search for the documents that I have demanded be produced. So here are a few ways to make sure that favorable responses to questions based on those failures will hold up and be admitted when you try to use them:

First, in the preliminary instruction portion of the deposition, I ask the following questions:

You understand that you are here to testify on behalf of XYZ Corporation?

You understand that your answers will be based not only on your personal knowledge, but also based upon all information that is known to or available to the corporation?

You understand that your answers today will be binding on XYZ Corporation?

Then I take the Notice of Deposition and mark it as Exhibit 1.

Mr. Representative, can you take a look at what I have marked as Exhibit 1, which is a copy of the notice for this deposition?

Have you ever seen Exhibit 1 before?

Have you read it before today?

Are you prepared today to give testimony about each of the subject areas that appear in Attachment 1, the Topic List?

If you will turn to the next page, you will see Attachment 2, which is a list of documents that I have asked you to produce.

Have you seen Attachment 2 before? When? Have you read it? Have you made an effort to search for responsive documents?

Then I go through the list of categories of documents. I read each request and ask the following for each category:

Do you have any documents to produce today in response to category 1? What?

Are there any documents that you are not producing today? What?

Why are they not being produced? If it’s a privilege issue, ask sufficient follow-up to be able to test the privilege. What is the document, who has possession of it, what is the date and what general topic does it address?

If they say there are no documents responsive to a particular request, ask: Have you made a diligent search in advance of this deposition for documents responsive to that request?

After that series of questions, you can go ahead and ask anything you like with reasonable confidence that you will be able to use it against the entity at trial, and they will not succeed in wiggling out of any answers they don’t like later on. And you will most likely get a ton of good stuff, because for some reason it seems like corporate representatives are never fully prepared, and even after you tell them in advance, they don’t appreciate the binding legal effect their answers will have. Just about every time I do this, I get useful binding concessions, and I bet you will too.

Keep your kids alive, buckle them up.

180px-Child_car_seat_By watching TV commercials, it seems that rear-facing backup cameras are all the rage in new trucks and SUV’s. They are supposed to reduce the risk of hurting a child, animal, or anything else that can be behind the vehicle but is short enough that you can’t readily see it through the rear window. But this article points out that backover injuries or fatalities may not really be as big of a problem as the commercials would have you believe, particularly when compared to the number of child fatalities that are caused by children being improperly restrained- not using a seatbelt, booster chair, or car seat. The article also argues that the cost of the cameras may not be justified because backover injuries are not as big of a problem as people think.

According to the article, in 2011 “back-overs” were the cause of 79 child deaths, while for the same year 371 unrestrained children under 15 died in car wrecks. I only see these backup cameras in new, usually expensive vehicles. If I am reading the graph in the article correctly, if backup cameras were required in all new vehicles, the estimated cost would be over 2 billion dollars a year. I wonder what it would cost (if it’s even possible) to install something that wouldn’t let you drive the car if a child was unbuckled or unrestrained?

I have been a personal injury lawyer for about 15 years. During that time I have handled hundreds, if not thousands, of car accident cases. Many of those cases involved cars that had children in them. In my entire career, I have never had a case where a child was seriously injured or killed in a crash when they were wearing a seat belt, or where they were in a car seat or booster chair. Not so much for unrestrained kids. The worst thing I have seen was a dead child on the floor of a minivan, right next to the car seat that nobody bothered to buckle him into. I can’t imagine how the parent looks in the mirror every day. Don’t be that parent. Make sure your kids are safely secured as the law requires, and save me from one more horrifying set of accident scene photos. Please.

So, uh, yeah, the internet is public. Just so you know.

You know what’s funny about stuff you post on the internet? It’s public, and that means people can see it. This includes those you would rather not see it. For example, if you are a disability claimant, you may want to forego that chance to post a video on Youtube of yourself half-naked, covered in tin foil, breakdancing to “Magic Carpet Ride.” Once somebody sees it, you could have a problem with your total disability claim.

This is also very important for people who are making a personal injury claim. Nowadays just about everybody has some form of social media account, and just about all of them give the use the ability to post pictures or video. As a personal injury lawyer, increasingly I am seeing defense attorneys checking my clients out on the web, including social media accounts. Defense attorneys are also seeking access to these accounts in discovery. I always object to producing social media login information, and so far I have not yet had anyone take the issue before a judge.

But I do advise all of my clients that they should stay off social media entirely while they have a pending claim, or if that’s not possible, they should careful to never post anything that is even arguably inconsistent with the claim they are making- even to the extent of not posting a picture of yourself at a wedding, or outdoors smiling. It is very easy for that to be taken out of context.

Sometimes, it doesn’t even have to be taken out of context. I had a case in the past year where my client had pretty serious, objective injuries- broken clavicle, lacerated kidney, badly sprained ankle. It was a pretty bad accident with solid liability. In discovery, I found out that despite my advice about this very issue, 3 weeks after the collision my client had posted a video to her Facebook account showing her drinking and laughing with friends, and dancing in her sling and walking boot. When I told the client, she said “but I don’t understand, I had my privacy settings on lockdown.” Often on the internet, even what you may think is private really isn’t. Very shortly after I was made aware of this, we settled the case. And it settled at a dollar amount that reflected the new value of the case with the video in evidence, not the old “no video” value.

So for my lawyer and injury victim readers, be very careful about your online presence when you are involved in a claim, because whether you think so or not, it may come back to bite you.

What it’s like having me as co-counsel

I am often asked to co-counsel cases with other lawyers. Whether they are new lawyers or experienced attorneys, usually these are folks who do not have extensive experience trying serious personal injury cases, or who do not have the resources to try that kind of case the right way.

I figure the best way to figure out whether I am the right lawyer to help you with your serious injury case is to hear what other lawyers who have worked with me have to say. Here are some thoughts written by one of the lawyers I have worked with recently:

If you’re a lawyer looking for co-counsel, give me a call, even if trial is coming up. I particularly enjoy the challenge of jumping into cases shortly before trial.

Staying Objective Is Not Always Easy

Nobody ever calls me because something good happened. That’s an unfortunate reality for lawyers in my line of work. Every time the phone rings, it is because something bad happened. At best, the bad thing is a totaled car and a painful, but treatable, injury. At worst, the bad thing is a catastrophic injury or the death of a loved one. Empathy is an emotional quality that is a job requirement for personal injury lawyers. If I can’t imagine myself in my client’s shoes, how can I hope to tell their story to a jury in a compelling, persuasive way? I don’t think I could.

Of course, I also need to retain my objectivity so that I am able to give my client sound, well-reasoned legal advice. Decisions such as whether to settle (or for how much) or to press on to trial should not be clouded by being too close to the case. That’s why it is a bad idea for lawyers to represent close friends or family members. I have been doing this kind of work for a long time, and I think I am generally able to balance the right amounts of empathy and objectivity to get the best results for my clients.

Sometimes that is easier than others. Right now I am working on a wrongful death case against an insurance company. The victim was hit by a car that was being driven by a DWI driver. The driver left the scene and tried to cover up the crime by having his car repaired, but was eventually caught by the police. The victim’s family brought a claim and settled with the driver’s insurance company for the policy limit, which was the state minimum at the time. But the victim was covered by underinsured motorist insurance with a higher limit, so there are additional insurance benefits available to cover the damages. The deceased’s family made a claim for the additional insurance benefits. The insurance company denied the claim- it says that the victim’s death was his own fault, so it is not responsible for paying the claim because under Maryland law the victim was contributorily negligent.

I spent a whole day in depositions on this case earlier in the week. The widow testified that on the day of the crash, she had picked up their daughter (2 years old at the time) from her father. She said that the little girl sprinted right up to Mommy, the way excited little kids do. She was so excited to see her Mom that she forgot to give her Dad a hug goodbye. Mom, of course, did what good Moms do- she sent her daughter back to give Daddy a hug and a kiss. That was the last time the little girl ever saw her Dad.

After five and a half hours of this kind of heart-wrenching testimony, my work day was finally over and I went home to my family. The first thing I saw while I was going up the walkway to my house was my own beautiful 18 month old daughter running down the hallway to hug Daddy. I had a hard time getting to sleep that night. Every time I think about this case, I see my own little girl. Sometimes my job is hard, but I know I am on the right side.

Another appellate win for M&Z!

Yesterday the Court of Special Appeals of Maryland released this opinion reversing the Circuit Court for Baltimore County’s entry of summary judgment against one of our clients. The case involves the application of Insurance Article §19-511 in settling an underinsured motorist claim.

Ron Miller offers some preliminary analysis here. I’m not going to steal Ron’s thunder by getting into the specifics myself. I will say that this opinion doesn’t mean that the case is over, there’s still a long way to go. There may be a petition for a writ of certiorari asking the Court of Appeals of Maryland to hear the case, and even if there is no petition or a petition is denied, there are issues to be addressed on remand by the trial court.

But for the moment at least, this is a huge win for our badly injured client. Rod Gaston did a great job setting up the issue in the trial court, and I handled the case on appeal. Our law firm is best known for our trial practice, but we also take a lot of pride in the results we get for our clients on appeal. It matters to us that we are on the front lines of developing the body of law that applies to Maryland personal injury cases because that helps not just our clients, but injury victims all over the state.

OK, Who Needs A Nap?

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

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

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

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

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

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

A Referring Lawyer’s Thoughts on Co-Counseling With M&Z

If you have been injured in a car or truck accident in Maryland, it is easy to find a lawyer to take your case. Just about every general practice lawyer in the state handles auto accident cases to some extent, and can usually do a good job. But sometimes these lawyers get involved in cases that can’t be settled, and they may not have the experience or resources to take the case to trial.

That’s where we come in. We get involved in a lot of cases as referrals from other lawyers under Rule 1.5 fee-sharing agreements. The referring lawyer can stay as involved in the case as they wish- it can be a straight referral, or they can stay in the case through trial.

The best way for you to find out about what co-counseling with M&Z is like is directly from one of our referring lawyers. Here’s what one of our referring lawyers had to say about a case that I got involved in about 60 days before trial:

      I have a general practice law firm and I also do personal injury work, mainly auto accidents. I have tried a number of District Court cases but I had never done a personal injury jury trial in the Circuit Court. I had an auto accident case that had to be brought in the Circuit Court. I was hoping that after discovery, etc. I would receive a reasonable offer from the defendant to settle the case since liability seemed pretty clear; a rear-end case. However, the defendant was a self-insured taxi company and, probably sensing my inexperience in the Circuit Court, would not make any offer to settle. At that point, I decided to contact Miller & Zois to see if I could get them to co-counsel with me on the case. Even though it was late in the game, I received a call promptly from Attorney John Bratt. Miller & Zois then agreed to co-counsel with me and they gave me the option to stay involved or let them take over all the way. I chose to stay involved. It was a great learning experience for me.
      Mr. Bratt is an excellent attorney and a great teacher. I was pleased with the way he handled the case, his willingness to share his knowledge and to explain the rationale behind the things he did. I was also impressed with the way he took the time to understand the case, his timeliness in appearances before the Court (he was always early, never just on time) and his composure and delivery in Court. His approach to the case was to present our strongest evidence for damages and avoid presenting evidence that would sidetrack the jury and weaken our case.
      Just before trial the Defendants’ attorney, a good defense attorney, predicted that “on our best day we could not recover more than 2 times specials” when I replied that stranger things have happened; he said “stranger things may happen; but not in Montgomery County Circuit Court.” When the jury returned a verdict for our client for almost 6 times the specials; you could have heard a pin drop in the Court room. Needless to say, I was very pleased with the outcome and with my decision to co-counsel with Miller & Zois, and in particular, for the excellent work and skills of Mr. Bratt. I would recommend Miller & Zois highly to any attorney that may need assistance in a personal injury matter.
      Elton F. Norman

The Norman Law Firm, PLLC

    Silver Spring, Maryland

So if you find yourself needing experienced trial counsel for a car or truck acccident case, consider contacting our law firm. We are happy to review referral matters form other attorneys.

Using Private Investigators in a Personal Injury Practice

I’m 38. For many in my generation, when we hear the phrase “private investigator”, Tom Selleck playing Magnum, P.I. is what springs to mind. But in the real-world practice of law, there are certain times when a good private investigator can be invaluable, even if he isn’t a Ferrari driving ex-Navy SEAL.

One example is locating difficult to find witnesses. A few years ago we had a red light – green light case in Baltimore City where our client had a permanent crush injury to her ankle. The case was vigorously contested on liability, and the only locatable witnesses agreed that the defendant had a green light. So I got my investigator working on locating the other witnesses who were listed on the police report. He found one of them- an 11 year-old boy who had seen the accident happen from a friend’s porch that was located a short distance from the light. He confirmed that my client had entered the intersection on a green light.

We tried that case. The jury found the boy more credible than the adult witnesses, who had been drinking that afternoon. The jury awarded our client over a million dollars in damages- on a case we never could have won if we hadn’t found that witness.

Private investigators just seem to be better at locating people than process servers. So in addition to locating witnesses, often I will use a private investigator to serve a summons on a defendant if they are hard to find. I think one reason PI’s are better at this lies in the compensation structure. Process servers only get paid when service is made, while PI’s get paid by the hour. So the process server has a financial disincentive to spend time working to locate a “hard serve” while the PI does not. Of course, another factor is that the PI likely has investigative training that the process server does not.

PI’s are also good for taking recorded statements from witnesses once they are located. This is important, because it is possible for the person who obtained the statement to become a witness in the case if there are any questions about the authenticity of the statement or the circumstances under which it was taken. That prevents counsel from becoming a witness in the case.

Practice tip: Oftentimes, insurance companies will get a recorded statement from a witness shortly after an accident occurs. In many cases, this will be months or even years before you know the witness even exists. So when I send an investigator to locate and get a statement from a witness, I send along a pre-printed permission form for the witness to sign allowing me to get a copy of any statement they have given previously. Once it is signed, under Md. Rule 2-402 (f), the defense must produce a copy of the statement.

Florida Court Allows Financial Bias Discovery of Plaintiff’s Treating Physicians

Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.

In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. One was handled in the trial court by my colleague Rod Gaston, the other by me, and I was appellate counsel in both. So we feel that our law firm is out on the leading edge in this issue.

One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is neccessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.
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