Trial Strategy

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.

Citing 50 year-old cases from trial courts that no longer exist isn’t super persuasive, just so you know.

The most time consuming part of getting any case ready for trial is discovery. This is the process of the two sides learning (discovering, get it?) information about each other’s cases before trial. This is what the lawyers and clients spend their time doing for most of the year between when the case is filed and the trial.

Discovery happens two ways- by exchanging written material, and in person. In person discovery is usually in the form of a deposition, where witness testimony is taken under oath and transcribed for use later on. That’s not what this blog post is about.

I am here to talk about written discovery, or more accurately, the often ridiculous objections I see used in an effort to avoid answering it. The two primary forms of written discovery are interrogatories and a request for production. Interrogatories are written questions to the other side that must be answered under oath. A request for production is kind of the same, except it is a set of written requests that the other side produce documents or other tangible things relevant to the case.

When you receive the other side’s answers to your written discovery, you are going to get one of these three things (or some combination thereof): 1) an answer, 2) an objection, or 3) an objection with a partial answer. Under the Maryland Rules, only options 1 & 2 are really allowed, but option 3 is kind of an “everybody does it anyway” type deal.

That’s all fine. Objections to discovery requests are and should be allowed. Sometimes they are even meritorious (usually not). But what really bugs me is the way the objections I see over and over are supported. I think there are law firms in Maryland that have been using the same cases to support discovery objections since before I was born.

Here is a smattering of citations that were used to support objections to discovery requests that I have received this year (I swear this is true):

Sperti v. Muir, Court of Common Pleas of Baltimore City, Prendergast, J., Daily Record, Aug. 10, 1966, Maryland Rules Decisions, Pg. 291.

Thorn v. Good Humor Ice Company of Baltimore, Superior Court of Baltimore City, Prendergast, J., Daily Record, May 8, 1964, Maryland Rules Decisions at 265.

Brocato v. King, Daily Record, June 29, 1956.

OK. Here’s the thing. First, these are all unreported trial court opinions, which may not be cited as authority under Md. Rule 1-104 and the cases interpreting it. So that’s a problem. Second, they are trial court opinions from trial courts that no longer exist. Go to the Maryland Judiciary’s website and let me know when you find the Superior Court of Baltimore City, or the Court of Common Pleas of Baltimore City. Third, Maryland Rules Decisions was never an official reporter, just an unofficial volume put together by one of the bar associations. Finally, you can’t even get copies of these opinions anymore, at least not on Lexis. I even tried just to see if I could and got nothing.

So the moral of this story is that if you are going to object to my discovery requests, why not try to find some authority that is younger than I am, that’s actually from a published case, and maybe even from a court that still exists? I mean, it can’t really be that hard to find a real case that supports your objection, can it?

Sorry, your case is now on standby

Two weeks ago I had a trial scheduled to begin on a Monday.

It was a jury trial that was set for two days, to begin on an agreed date that had been selected 8 months earlier.  My client and his three witnesses all cleared their schedules to make sure they were available.  I had blocked off the time on my calendar, and so did the two lawyers involved on the defense side.

The Friday before the trial was supposed to start, I received a call from the court’s assignment office.  We wouldn’t be able to begin our trial as scheduled, because there was no judge available.  This put us on standby.  That meant that I could be called any time before 1:30 p.m., and I would have an hour to get to court with my client and my witnesses, ready to begin the trial.  If I wasn’t called by 1:30, I was instructed to call back at 3:30 to see if we would be assigned the next morning.  I called my client and all of his witnesses and let them know of this development.  They were not exactly pleased.

Of course, when Monday came, I was not called before the deadline.

So as instructed, I called back at 3:30.  I was told that we were not assigned for the next day, as there was still no judge available.  We would be on standby again, until 12:00 p.m.  If we were not reached by noon, the case would be postponed and a new date selected.  After asking, I learned that it didn’t look good for us to be assigned the next day, and that there were other cases older than mine that were also on standby.  I called my client and his witnesses to let them know what was going on.  Unsurprisingly, they had not gotten any happier about this scheduling problem.

The next day, I sat by the phone until noon hoping we would be called.  Of course, we were not reached.  Again, I waited until 3:30 and called the assignment office again to find out about having the case reset.  They told me that I would get a call the following week, because “the girl who does that is out on vacation until then.”  Again, I relayed all of this information to my client and the witnesses.  At this point, they were equal parts disappointed the case didn’t go forward and annoyed at how the scheduling was done.

Last week, I got a call from the court looking to clear dates on which the trial could be reset.  From a man.  I guess “the girl who does that” is still on vacation.  Now the case is tentatively rescheduled for 6 months from now.  I’m told that we will have a priority if the same thing happens again, but I hope I don’t have to find out.

Please don’t take this as “woe is me.”  I’ve been a lawyer for a while now, and this is not the first time something like this has happened to me.  I know it’s done that way to maximize the efficiency of the court, so that they never have a courtroom sitting empty.  I’m aware that I am part of a system that does not really care about my convenience.  I understand why it is the way it is, and I am used to it.

But my client and his witnesses are not.  They think this system is completely insane.  When I told them what was going on, it struck me that two of them said basically the same thing: “Oh, I guess some judge decided to go on vacation, and they don’t care if we have to sit and wait.”  I can see why they may have thought that, since August is a big vacation month.  I assured them that was probably not the case, that most likely what happened was that some trial went longer than anticipated, or someone had a sudden illness or family emergency.   I hope that’s true, but I don’t really know.  I am assuming the court would only put a case on standby for a good reason, and if there was at least some chance that it would be reached.

Now I have to tell my client and his witnesses that we are set for a new date, and that I hope the same thing won’t happen again.  Like I said, I’m part of the system and I am used to this sort of thing happening.  But for people who are not part of the system, this looks really bad.  From their perspective, they cleared their very busy schedules only to sit by the phone for two days waiting for a call that never came, without ever being given a reason why they were being inconvenienced that way.  Now they are concerned that this will go the same way the next time.  I can’t say that I blame them for being annoyed.  I can absolutely see why the status quo makes no sense at all to an outsider looking in.

I’m sure that the court and its staff do their best to make sure cases are tried on the dates they are set, and that they think the system they have is the best way to handle these kinds of problems under the circumstances.  I will say that if there is a better way, I hope somebody figures it out pretty soon, because the current system really gives the litigants and the witnesses an unfavorable opinion of our court system.  And once that opinion has taken hold, it is very difficult to change.

A Good Trial Quote

Here is a quote I saw recently that I think applies really well to trial work:
“Don’t let a win get to your head or a loss to your heart.”– from Public Enemy’s Chuck D.

Specifically, this is from the song “He Got Game” from the movie soundtrack of the same name. One thing about Chuck D., he always has something interesting to say.

I am one of those people who hates to lose. I can get over a win very easily, but a loss- not so much. So it is pretty easy to tell why this quote caught my attention.

Prince George’s County Accident Cases

Certainly, given their preference, plaintiffs’ lawyer will choice PG County or Baltimore City as the venue for almost any Maryland accident case.

If I can’t be in Baltimore, I want to be in P.G County if I have a Maryland traffic accident case.

Timeliness of Court Rulings

Litigation is a deadline-centric business. There are deadlines for just about everything lawyers must do in a court case. The statute of limitations sets a deadline for filing the complaint. There are deadlines for filing expert witness designations, for the close of discovery, and for filing pleadings, motions and appellate briefs. Nearly everything a trial lawyer does has a deadline imposed by the law, the rules of court, or a by court order.

You know who is in the litigation business but is not constrained by deadlines? Judges.

I think every lawyer has had the experience of filing something and it vanishes into the abyss, only to be heard from again when somebody finally gets around to it.

For example, in one of my cases, I filed a motion for sanctions on February 8. Today is June 1. It’s been nearly four months. No ruling has been made, no hearing has been set, no judge’s chambers has contacted me. And I know the court is aware of the motion. It has been docketed and assigned a document number. I filed another motion April 13. It has also been docketed and assigned a document number. Again, as of today, no ruling, no hearing set, no contact from the court. That motion has been ripe for over a month.
I do not believe that this is something that any judge would find acceptable if it were done by one of the parties or their counsel.

I know courts are busy. I know the clerk’s offices are inundated with paper and don’t always operate under ideal conditions. But seriously. Is it really that hard to send a 5 page motion to a judge, have them spend 10 minutes reading it, and then either set a hearing or sign an order?

I wish there were a court rule requiring courts to take action on a motion within a set time period after a motion becomes ripe for a ruling. As it is, there’s not an easy solution to the problem, beyond calling and pestering the clerk’s office to get it sent to a judge. Of course, that creates at least some concern of irritating clerks and/or judges that you will need to interact with in the future.

Not an easy problem. Any readers have a better idea for how to handle these situations? Perhaps require clerks and motions judges to wear clocks like Flavor Flav?

Don’t Forget About Your Witnesess When the Case Settles


I just reached a settlement in a case that was set for trial next week. Obviously that is great news for my client, who now has some closure on a difficult period in his life.
But memorializing the agreement and having the clerk remove the case from the docket doesn’t mean the end of my job when it comes to settlement.

I had subpoenaed three witnesses to appear for trial: an independent “bystander” witness, a traffic engineer from the State Highway Administration, and a police officer. I made sure to contact each of these witnesses as soon as the case resolved to let them know they would not need to appear. They really appreciated that I let them know. The traffic engineer in particular made it a point to let me know how often attorneys subpoena witnesses from his office and then do not let them know when the case settles. Then they travel to court for nothing.

I can’t believe that. It’s just unprofessional, and arguably violates Md. Rule 2-510(h), which states that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to the subpoena.” As far as I’m concerned, not telling a witness under subpoena that the case settled and they don’t have to appear causes the witness “undue burden or cost.”

So just a reminder, when your case settles right before trial, make sure to notify the witnesses. That way you can save them the hassle and missed time from work of showing up at court for no reason.

What to Do When Your Expert is a D.O.?

Putting a bad pun in the title is always a great start to a blog post, right? Try the veal, I’m here all week.
But seriously, proving medical causation of an injury in a personal injury case nearly always requires expert medical testimony. There a few exceptions for objective injuries that would be obvious to a layperson (like cuts and bruises), but generally proving medical causation requires a physician to testify that within a reasonable degree of medical probability, the injury or medcial condition was causally related to the accident.

The most obvious source of this testimony is the plaintiff’s treating physician. There are strengths and weaknesses in using a treating physician as an expert witness. One of these can be that since you generally do not choose the treating physician, you are stuck with their qualifications, however good or bad they may be.
This issue can arise when the treating physician turns out to hold the degree of Doctor of Osteopathy rather than Medical Doctor. When this happens, it is a natural area of cross examination. Juries expect physicians and expert medical witnesses to be M.D.’s, and tend to be skeptical when they are not.

One way to try and remedy this is to point out that in practice, this is a distinction without a difference. On direct (and perhaps in cross-examination of the defense expert) illustrate the commonalities between the holders of the two degrees.

A few days ago, I happened to come across Declaratory Ruling 97-1 of the Maryland Board of Physician Quality Assurance. It contains a paragraph that neatly explains the many similarities and singular difference between the two degrees:

“According to Education of the Osteopathic Physician, a publication of the
American Association of Colleges of Osteopathic Medicine, both doctors of medicine
and doctors of osteopathy are physicians who have taken a prescribed amount of
premedical training, graduated from an undergraduate college, and received four years
of training in a medical school. They both use scientifically accepted methods of
diagnosis and treatment, and are often licensed by the same state medical board. The
philosophical difference is the osteopathic profession’s emphasis on the importance of
the musculoskeletal system in health and disease and the development and uses of
manipulative diagnosis and treatment.”

It is easy to see how this kind of information can be useful in putting together a list of questions that may help in ameliorate any credibility issues that may arise with a witness who holds a D.O. degree. These are all things that would be very difficult for a defense expert to deny on cross.

I’m going to save a .pdf copy of this ruling to use in the next case where my treating physician expert is a D.O. I will have to remember to let you know how it turns out. Does anyone else out there have experience with this issue? How did you handle it?

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.