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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.

The best work day of the year.

Today is my favorite workday of the year.

Obviously, I love being home with my wife and family during the holidays, but I can’t shake my affinity for working the days between Christmas and New Year’s. December 26th is the best day of the year to be in the office.

Like many offices, ours is half-empty because a lot of folks have decided to stretch the holidays into a week of family time. My phone will barely ring today because clients, opposing counsel, and insurance adjusters are busy vacationing or just enjoying family time. Other than new case intake (unfortunately, serious injuries don’t take the holidays off) I don’t expect to get many calls today.

So today is a great day for catching up on correspondence, writing and blogging. Got an unusual case where you need to custom-draft discovery requests? Today is the perfect time to do it. Responding to a motion or working on an appellate brief? Today is ideal.

So I plan to spend the day in my office listening to music and catching up on a variety of writing I have been trying to find time for.

Of course, my happy outlook on being at the office the day after Christmas has nothing do with the fact that my house looks like a Christmas cyclone swept through it. I promise.

I hope you have all had a great holiday season, and that if you find yourselves working today, you are being productive!

How to handle expert witnesses with disciplinary charges/orders.

There has been some controversy recently in the community of Maryland lawyers who handle personal injury and worker’s compensation claims.

It can sometimes be difficult to locate medical providers who will treat patients who were injured in accidents or on the job. If the patient was injured in an accident, the physician may have to wait for payment until the personal injury case resolves. In the case of a work-related injury, the physician must by law accept payment according to the fee schedule set by the Maryland Worker’s Compensation Commission, which is usually far less than the rates paid by private insurers. Many medical providers aren’t willing to accept these conditions, so the few who will are an invaluable resource for Maryland personal injury lawyers and our clients.

One of the local medical practices willing to treat these sorts of patients has become involved in proceedings before the Maryland Board of Physicians. Some of their doctors have pending disciplinary charges, and some others have already consented to orders resolving the charges. This has attracted the attention of those in the legal community working on those sorts of cases, and has been commented on by industry bloggers.

I kind of view this as a tempest in a teapot. The charges are not the sort where I would expect any of the physicians involved to lose their licenses or have them suspended.

Perhaps most importantly, the existence of the charges and/or disciplinary orders before the Maryland Board of Physicians is not discoverable or admissible in any civil or criminal action in the State of Maryland.

We have a statute for this- Md. Health Occupations Code Ann. §14-410 (a). The statute says that:

(1) The proceedings records, or files of the Board or any of its investigatory bodies are not discoverable and are not admissible in evidence; and

(2) Any order passed by the Board is not admissible in evidence.

So if you find that you have a treating physician or an expert witness who has been involved in proceedings before the Maryland Board of Physicians, relax. Those proceedings are never going to come into evidence, and the jury will never hear about them. Provided, of course, that you are prepared with a motion in limine citing the law on the issue.

How to tell if your jurors are using Twitter from the courthouse

In the last few years, the use of social media has increasingly become an issue in the legal field. We are seeing social media being used as evidence in civil and criminal trials. There have been recent Maryland appellate opinions on how to admit evidence of social media use.

There have also been cases involving social media use by jurors. Here in Baltimore, there was an issue in the sensational Sheila Dixon trial about jurors becoming Facebook “friends” with one another. It has now become commonplace for jurors to be instructed that they are not to discuss their jury service on social media during the trial.

Here’s at least one tip for lawyers concerned about jurors using social media: there is a way to at least try to see if there are jurors or potential jurors using Twitter from the courthouse. Bing (Microsoft’s answer to Google) has a Twitter Maps feature that allows you to type in any address, and it will show you the location of any Tweets that have recently been made in the vicinity, as long as the user has geolocation enabled. Just go to Bing Maps, type in the address, click on Map Apps, and select Twitter. Voila!

For example, I just saw a Tweet made a block from the Circuit Court for Baltimore City asking “Is there snoring allowed in the courtroom?” I bet that’s not somebody you want on your jury, right? I’m not sure exactly how useful of a tool this will be, but it’s certainly interesting to play with.

This is what we have to deal with

Can you believe this? A juror just left for vacation during deliberations. And then when she came back all she got was a $300 fine! This is inexcusable, especially when you consider that during the jury selection process prospective jurors are given several chances to tell the court about anything that would prevent them from serving, like a pre-planned vacation.

She should have been put in jail, at least for a day, and been assigned some community service. Fortunately the case was able to continue without a mistrial. That’s probably why the judge let her stay out of jail.

Using Safety Rules in Truck and Car Accidents

I have written in the past that a trucking accident case is much more than an auto accident case with a bigger vehicle involved. Lawyers representing people injured in trucking accidents need to consider the different agency relationships that may be involved between the driver, owner/lessor/lessee of the vehicle, as well as the causes of action and/or insurance issues that arise out of those relationships.

Another difference is that trucks are perceived to be more dangerous on the road than standard automobiles. They are bigger and heavier, have more and bigger “blind spots”, and are operated by drivers who may have fatigue issues from spending hours and hours in the driver’s seat. Most drivers/jurors have had at least one terrifying personal experience out on the road as a result of an encounter with a big rig.

In fact, I nearly had one take me out on my way to work this morning. In rush hour traffic on I-695, the truck was weaving in and out of traffic (always a great idea) and came into my lane without checking to see if it was safe. Since I was on the driver’s side, this can only mean that the driver never checked his mirror before coming over. We’ve all seen those signs on trucks that say “if you can’t see my mirrors, I can’t see you.” Well, I could see this guy’s mirrors, which makes me think he would have seen me if he had looked. Thankfully, I was able to avoid a collision, but I am confident the driver had no idea I was there until he heard my horn.

Because of the real and perceived dangerousness of these vehicles to other drivers, personal injury cases involving tractor-trailers are ripe for a “Reptile/Rules of the Road” approach. Sidebar: if you are handling personal injury cases and you have not read Don Keenan and David Ball’s “Reptile” or Rick Friedman and Pat Malone’s “Rules of the Road“, you should 1) not tell anybody; and 2) read them right now.

Here is a link to Don Keenan’s blog explaining how to begin to formulate “Rules” that are simple, easy to understand, and that will resonate with your jury. Using the example from my morning commute, a Rule might say “Tractor-trailer drivers must be sure the way is clear before changing lanes, to protect other motorists on the roadway.” These can be drafted many different ways, and doing so is definitely an acquired skill. How would you draft the appropriate Rule for this situation?

Should Lawyers be Required to Carry Malpractice Insurance?

I just ran across an article in the ABA Journal that points out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. There, lawyers must purchase at least $300,000 of coverage through a state fund.

My state, Maryland, does not require it and never has. I know there are many, many lawyers “running bare”. I think this is colossally stupid. If the economics of your practice do not allow for the purchase of malpractice insurance, you might be in the wrong game. It is easy to think that because you are a dedicated, competent lawyer, you will avoid committing malpractice. But what if someone brings a claim that turns out to be unfounded? If you have insurance, it is defended at low or no cost by an attorney who is an expert in legal malpractice defense. You will have access to well-qualified experts to testify in your defense. You will have counsel with experience in assisting you with any bar complaint that may be made. With no coverage, you don’t get any of that, and if you do, you pay as you go.

Whether or not the state requires lawyers to purchase malpractice insurance, its a good idea to have it. I just can’t belive there are lawyers who go without. Why do I suspect that these are probably also the lawyers most likely to need it?

Proving Liability in Car Accident Cases Using Google Earth

As the Internet Age progresses, I expect personal injury litigation to change in keeping with the times. Naturally, this extends to the “tool kit” that lawyers use to prove liability in car accident injury cases.

Overhead views of highways and intersections can be invaluable in proving liability for collisions. They can be useful for showing the general layout of accident scenes, establishing the location of traffic signals, illustrating sightlines, showing the movement of vehicles between lanes or through intersections, or establishing the location of witnesses. Not long ago, it was commonplace to see questions on bar association listserves looking for sources of aerial photographs of roads and highways for use in car accident cases.

No longer. Google Earth has become the go-to resource for many for overhead photos. They are in color, searchable, and can be zoomed in or out depnding on what view the situation calls for.

I have seen these admitted into evidence in a variety of ways: by stipulation, through a request for admission, or through the testimony of a party, witness or police officer. My view is that laying the foundation is essentially the same as for any photograph- using a witness to testify that the image is a photo of what it purports to be.

I am not aware of any Maryland authority directly addressing the admission of this kind of material into evidence. I would not be surprised if someday we have an evidentiary rule specifically addressing the issue.

Even though sometimes you may have a problem getting Google Earth images admitted, it may be worth a try just based on the price. I am unaware of any other reasonably priced means of obtaining overhead images. Of course, making sure you have the proper permisssions or licenses to use the material is your responsibility.

I’m back!

Sorry the blog’s been unattended for a little while. In the last three weeks I’ve had a daughter and been through an earthquake and a hurricane. So things have been a little busy. But now I am back and you can expect this blog to be updated regularly.

While I’m here, I have an announcement. I will be speaking at the Maryland Association for Justice’s Fall Auto Negligence Seminar on Novenber 11, 2011. I will be speaking about obtaining financial interest bias discovery from defense expert witnesses after the Court of Appeals of Maryland’s decision in Falik v. Hornage (a case I briefed and argued).

This is a great day-long seminar. My colleague Rod Gaston will be speaking about claims before the Maryland Insurance Administration alleging a lack of good faith, and the Hon. Howard Chasanow will be talking about alternative dispute resolution. I am sure they will be adding other topics as well so sign up now!