Baltimore Injury Lawyer Blog

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

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

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

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

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

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

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

So I asked him this set of questions:

You are here in your role as a neurologist?

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

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

You are a member of the American Academy of Neurology?

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

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

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

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

Do you agree with that statement?

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

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

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

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

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

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

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

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

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

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

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

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

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

So be creative, and have fun!

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

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

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

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

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

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

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

Most lawyers who regularly handle car and truck accident injury cases are used to filing lawsuits in cases that happen at intersections controlled by traffic lights. These cases just seem to settle less often than other kinds of traffic accident cases.

I believe this is because these cases present more chances for insurance companies (and later, defense attorneys) to find a reason not to pay the claim. First, I think people are more likely to be seriously injured in intersection cases, because at least one of the vehicles involved is moving at full speed. So there is likely to be more grist for a dispute about the value of the Plaintiff's damages claim. Second, these cases lend themselves to disputes over liability- namely, who had the right of way. This is great for the defense, because a liability dispute gives them a chance to beat the claim entirely.

In these cases it can be can be nearly impossible to prove liability without a witness, and sometimes can be problematic even when there is a witness. You may get lucky, and find that the police located a bystander witness who was traveling in the same direction as the plaintiff or defendant, and can testify as to the color of the light for that person.

Seems simple, right? Not always. What if the witness was on a cross street, and could only see her light, but not the lights that were facing either of the parties? What if there is no witness, and the defendant claims that she had the right of way because she turned left on a green turn arrow instead of a green ball where she would have had to yield the right of way? What if one or all of the signals at an intersection isn't timed, but are instead controlled by a motion sensor?

In these kinds of cases, you need to be able to prove exactly what kind of signals were present, and what colors they would have been at different times. By way of illustration, if your witness on a cross street was looking at a particular color light, can that information be used to figure out what color the light facing the defendant was?

The only way to know is to obtain the sequencing information for the traffic control signals at the intersection. This information is readily available if you know where to look. First, find out if the road at issue is maintained by the state or county. In Maryland, this is easy to figure out. If the road has a state route number, the information you need can be obtained from the State Highway Administration. If not, each county has a traffic office that can usually provide the information you need.

Send a letter and request a copy of the sequencing information for the intersection. Make sure you specify in your request what time period you need the information for, since traffic light sequencing often changes based on traffic patterns and road usage. What I do is send a copy of the police report along with my request, so the traffic office has as much information about the intersection as I do.

When you receive the sequencing information, you most likely will not be able to figure out what it means because you will be looking at a chart that simply has the lights identified along with a series of phase numbers and timing intervals. OK. So to make sense of this you will need to have the government's traffic engineer translate the timing chart for you. Usually, this is the person whose name was on the letter accompanying the sequencing information. But don't pick up that phone just yet. For the engineer's explanation to make any sense, you need to know what the intersection looks like and where the lights were located. If you have personal familiarity with the location, great, you are all set. If not, what I often do is pull up an aerial view of the intersection on Google Earth. Now I am ready to call the traffic engineer. Using the photo and the sequencing chart, the engineer can explain to me exactly which lights would be activated at particular times. Now I can hopefully use that witness on the cross street, in conjunction with the testimony of the traffic engineer, to show that the defendant had to have had a red light, or whatever else wins my case on liability.

Trust me, the defense is hoping that they can win the case by pointing out on cross that your witness couldn't actually see the light that mattered, and then arguing you have failed to meet your burden on proving liability. Don't let them get away with this. Close that door with the traffic engineer's testimony and the sequencing chart, and go win your case!

I have two cases where the same issue has recently popped up. Each of these cases is pending in a Maryland Circuit Court in what I would call the “D.C. Suburbs.” Specifically, Montgomery County and Frederick County.

In each, the defense has selected a doctor or doctors to examine my clients. This is normal in a personal injury case, since the plaintiff puts his or her physical condition at issue by making a claim for damages for a bodily injury. I don’t have a problem with the defense wanting an examination of my clients, in and of itself. I agree that under Md. Rule 2-423, a court would likely find “good cause” to order an examination if I did not consent.

My problem is that in each of the cases, the doctors the defense has selected only have offices in Washington, D.C., which is outside the subpoena power of the courts where my cases are pending. So if (when) I need to serve a subpoena for deposition and document production, I would need to do all of the extra paperwork needed to obtain and serve a foreign subpoena. I don’t really think this is fair, since there isn’t exactly a shortage of Maryland doctors willing to perform defense medical examinations. If asked, I could probably give the defense lawyers a list of at least a half-dozen candidates in each specialty.

Usually, I tell the defense attorneys in these situations that I will only consent to the examination if they pick a Maryland doctor to perform it, or if the physician will voluntarily accept service of a Maryland subpoena and authorize the defense attorney to accept service. Sometimes we reach an agreement, and sometimes the defense files a motion to compel the examination.

What I would really like to see is an amendment to Md. Rule 2-423 requiring that any examination performed under the rule take place in the state of Maryland, by a physician licensed in Maryland, unless the court orders it to take place elsewhere after a showing of good cause. Other court rules address the location of events related to the litigation, so why should physical examinations be any different?

I’m not holding my breath, though.

A few weeks ago, I wrote about how to handle certain kinds of obstructive behavior from opposing counsel at depositions.

Here is a great blog post by Jay Shepherd over at Above The Law on dealing with opposing counsel who do not play well with others. See, there's at least one schadenfreude- free reason for us scummy, small-firm, personal injury types to read ATL!

According to Jay (and I think he's right), the key is not letting them get to you. Because getting to you is the only way they win. Lawyers like this are like children who throw tantrums. If the tantrum doesn't get a reaction, there is no reward for the tantrum-thrower. Consequently, the tantrums become fewer.

Does anybody else have suggestions or observations on how to handle opposing lawyers behaving badly? Let me know in the comments.

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

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

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

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

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

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

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

A. I am not making that contention.

Now, there are a couple of lessons here.

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

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

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

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

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

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

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

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

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

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

You specialize in spine surgery, correct?

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

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

When was the last time you performed that operation?

You have read Dr. X's deposition?

You disagree with his opinions?

Do you know Dr. X professionally?

What does he do?

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

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

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

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

Lawyers who do not regularly handle injury cases from truck accidents often think it is simply another car accident case, only with bigger vehicles. This could not be more wrong. Trucking accident injury cases have different factual and legal issues than car accident cases.

Although the factual differences are many, they will be addressed in a later post. This post is about some of the legal issues that are improtant in a truck accident case.

When they become involved in a lawsuit over a car crash, most people think it would be very helpful to their case if the other driver had a bad driving history, such as traffic violations or prior at-fault accidents. Of course, that would only be helpful if the jury ever found out about it. Usually they won't. That is because generally the only issues at play in a car accident case are 1) was the drviver negligent; and 2) damages. Prior driving history is usually not relevant to either of these issues, and therefore isn't admissible in evidence. For laymen, the jury isn't told about prior driving history because it doesn't have anything to do with whether the bad guy was negligent that day, or with the proper amount of damages.

Injury cases involving trucks or commercial vehciles are different. That is because usually, the vehicle is either owned or being operated on behalf of a trucking company or some other type of corporate entity. The driver is driving it because that's the job he was hired to do.

In these kinds of cases, experienced lawyers generally bring a claim for negligent entrustment, hiring, or retention. This is a claim made by the injured person against the owner of the truck or the driver's employer. It alleges that the owner or employer was negligent because they knew or should have known that it wasn't safe to allow the driver to operate their truck, but did it anyway.

This lets you get into the hiring and employment process to determine if the driver had a bad record and whether the employer knew about it or should have known about it if a proper invesitgation was done. Did the driver tell the truth about his prior record on the application? Did he notify the employer of accidents or traffic violations during the employment? Did the employer check his record? When? How often?

The negligent entrustment claim allows you to get discovery of all these issues, and to put them before the jury. This can make a huge difference in cases where liability is contested because the individual case can become part of a larger pattern of the driver's conduct.

One more reason to make sure your lawyer has experience in the kind of case you have. Issues like this won't make a huge difference in every case, but in the cases where it matters, it's an advantage you don't want to give up.

I am involved in a court case in Prince George's County where I am representing a lady who alleges she was injured when a tractor-trailer struck her car.

We live in an increasingly technological age. One consequence of this is that trucking companies often equip their vehicles with a "black box" that records vehicle data, such as speed, location, movement, etc. They do this to promote efficiency in terms of scheduling, cargo tracking, route determinations, etc. To some extent it is also probably done to make sure the drivers are where they are supposed to be, doing what they are supposed to be doing, while they are out on the road.

Many lawyers think a trucking accident case is just a plain ol' car accident case on steroids. Wrong. This an example. Experienced truck accident lawyers, like me, know to ask for things like vehicle data recorder information in discovery requests. I do this in all of my truck accident cases, like the one in P.G. County I have going on now.

Well, I got a response back to my request. Here it is, verbatim:

OBJECTION. This Request is overly broad, unduly burdensome and seeks to discover information not reasonably calculated to lead to the discovery of admissible evidence.

Apparently, I had a liquid lunch at the local bar the day I wrote my request. Who would think that information about speed, stopping, vehicle load and driving time would be relevant to figuring out if a truck driver was negligent? Oh, right. EVERYONE. This response is about as ridiculous as arguing that a videotape of the accident is irrelevant.

That is, everyone except this defense lawyer with about 35 years of experience. What his response really means is "you are only getting this if you make me." The root cause of this phenomenon is lazy plaintiffs' lawyers who will not take the time to get this information the hard way. Obstructionist defense lawyers get away with this all the time because the plaintiff's lawyer doesn't read the discovery responses closely or at all until 2 weeks before trial.

Sorry dude, you picked the wrong guy. Red flag, meet bull. The only way I won't get it is if a judge denies my motion to compel it. Which I think unlikely, since there is nothing more relevant to a truck crash than vehicle movement data.

"The only thing neccesary for the triumph of evil is for good men to do nothing." Edmund Burke, (1729-1797)

One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It's not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients' treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor's license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the "Practitioner Profiles" database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you'd rather find out your expert was unlicensed during the defense attorney's cross-examination.

I have a lot of respect for federal magistrate judges. They spend their days handling settlement conferences, ruling on motions, and presiding over discovery disputes. Every once in a while, if they are lucky, the parties to a case will consent to a trial before a magistrate to liven things up.

Nothing sucks more than civil discovery disputes. Particularly those that involve deposition misconduct in the form of speaking objections, and motion papers inclusive of personal attacks. Here is the greatest court order I have ever seen (ABA Journal via ATL).

Judge Leen apparently got to this ruling too late to affect discovery in the case, but she's not exactly apologetic about it. As she explains: "I am not the Maytag repairman of federal judges desperately hoping for something to do." She thought so little of the merits of this dispute and the number of trees killed in its pursuit that she assigned her intern to read the 185 pages of transcripts submitted by the parties and to submit a memorandum. The intern was very quickly able to determine what the lawyers should have known- they were being bad.

Judge Leen isn't exactly happy about the conduct, and describes how she would handle it in a perfect world.

JUDGE LEEN:

If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am
an experienced lawyer and know that objections must be concise, non- argumentative and
non-suggestive. I understand that the purpose of a deposition is to find out what the witness
thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the
witness’s own words to form a legally convenient record. I know I am prohibited from
frustrating or impeding the fair examination of a deponent during the deposition. I know
that constant objections and unnecessary remarks are unwarranted and frustrate opposing
counsel’s right to fair examination. I know that speaking objections such as “if you
remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you
understand the question” are designed to coach the witness and are improper. I also know
that counsel’s interjection that he or she does not understand the question is not a proper
objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

ME AGAIN: You go, Judge Leen! Just the right mix of sarcasm, ridicule and contempt. But tastefully done. She has the street cred to back it up, too, since she is the only female Nevada lawyer to be elected to the International Society of Barristers, the International Academy of Trial Lawyers, and the American College of Trial Lawyers (see page 9).

I will never be a federal judge. I lack judicial temperament. I would have wanted to do something more to these lawyers than reprimand them in an order. But I suspect they will not do this kind of thing again in federal court.

I am working on a few cases involving corporate defendants of various sizes. One of the most effective discovery devices around for these kinds of cases is the corporate representative deposition.

Md. Rule 2-412 allows a corporation or other organization to be deposed through a designated representative. The way it works, is that the party seeking the deposition sends a notice, where they "describe with reasonable particularity the matters on which examination is requested." Then the corporation must designate one or more people who will be prepared to testify regarding those matters "known or reasonably available" to the corporation.

This is a powerful discovery tool because the answers given by the corporation's deignated representative are binding. The entity is under an obligation to have the designee review the areas upon which the examination is requested, and be prepared to give answers that will be binding. There is law saying that once a designee testifies, the corporation may not later present affidavits or other evidence in contradiction to the answers given by the designee. Under some circumstances, even an "I don't know" can be binding on the corporation when said by its designee.

There is a great resource for preparing for these kinds of depositions produced by the National Institute for Trial Advocacy called The Effective Deposition. I started out trying cases as the only lawyer in charge of the civil docket for a small Baltimore firm concentrating in serious criminal defense. I worked with two outstanding criminal lawyers who were a great resource on trying cases generally, but not so much on civil cases. This means that to a large degree, I am self-taught, and early on The Effective Deposition was the main resource I used for preparing for depositions of all types. My subsequent experience has taught me that the advice in the book is right on the money.

I didn't include cites, but all of the statements I made above are supported by either Maryland case law, or federal law interpreting the corresponding federal rule. Because the Maryland Rules are largely patterned on the federal rules, in the absence of controlling authority, Maryland courts look to interpretation of the federal rule for guidance.

This is true for all of the Maryland Rules, not just those pertaining to depositions. This is a very useful rule to know. If you deal regularly with procedural issues in discovery, you know that there are often not a lot of Maryland appellate cases on point. First, discovery issues are not appealable until the end of the case, so if you get a verdict it may never be appealed. Second, by then the economic realities of the case may not allow for an appeal. Finally, even if there is an appellate issue and there is the will and economic ability to appeal, the standard of review that will be applied is the very deferential "abuse of discretion" standard.

However, there is a very large body of law interpreting the federal rules, because federal trial court decisions are often reported. These may be found either in F.Supp., or in the Federal Rules Decisions. So when you have a thorny legal issue involving Maryland pretrial procedure, don't forget that federal law may be very valuable in providing guidance. This is particularly true when you can locate and rely upon opinions authored by well-known local federal judges. I have found that Maryland trial court judges will place great weight on evidence and discovery opinions decided by Hon. Paul W. Grimm, for example.

So once you are prepared on the strategic and factual considerations involved, and know where to look for the law if you have a problem, the corporate representative deposition is a great way to learn facts and get binding answers in cases involving corporate defendants. Have fun!

Last night, the Maryland General Assembly passed a bill to put a contitutional amendment on the ballot in November raising the jury prayer amount in civil cases. Currently, in any civil case filed seeking more than $10,000.00, the defendant has a right to a jury trial. This provision does not have an escalator allowing it to rise along with the cost of medical care and wages lost.

This bill will permit a Constitutional amendment raising that amount to $15,000.00. Because this law relates to a constitutional amendment, it needed a 2/3 majority to pass. It will now appear on the ballot in November's general election, where it will hopefully be approved by the voters.

This is an important issue for car accident lawyers in Maryland. As an example, consider a typical soft-tissue injury case. There is an emergency room visit with X-rays and a bill from the ER physician. That's about $800, conservatively. The client needs 8 weeks of follow-up physical therapy. That's about $4600. Then include two weeks missed from work, at about $1400 total. That's $6800 in out of pocket losses. If the client needs an MRI to rule out a structural problem, you are looking at $8,000 in out of pocket damages for a relatively uncomplicated sprain/strain case. Filing for $10,000 does not really provide the potential to make a recovery to adequately compensate that client. But filing for more means that the defendant may pray a jury trial and delay the case for up to a year waiting for a trial date in Circuit Court, and requiring expensive, time consuming discovery. The plaintiff may need to miss even more time from work to appear at a deposition, a court-ordered medical exam, and a settlement conference.

If the voters approve the proposed change, that case can be filed in District Court for $15,000.00 and it will stay there. This is a good change. It will keep less serious cases from clogging the Circuit Courts, and will relieve our jurors of the burden of appearing to hear these cases. A jury demand is also used tactically by defense attorneys and auto insurers in cases in this value range.

In a county with a conservative jury pool, any case over 10k will almost always result in a jury demand. This means expensive discovery, delay, and the prospect of trying the case before a panel of jurors who may very well believe their time is being wasted on a case of that size. These cases can also be more difficult to try before a jury because of the nature of the injury claimed. A muscle strain can be very painful, and can take a few months to resolve. It also does not show up on an X-ray or MRI. Even if you achieve a satisfactory result for the client, you have taken a year to do what should have been done in six months. Of course, in counties where the jury pool is perceived as being more plaintiff-friendly, jury demands are much less common.

Hopefully Maryland's voters will make the right choice. In the context of a modern economy, $15,000 is not the huge sum it once was. The change will allow the District Court to fulfill its purpose of resolving less serious cases in a fair and expedient manner with as little cost as possible.

Look for more on this issue as the November election approaches.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases. Rod Gaston was trial counsel in Hornage; I am trial counsel in Holthus, and I was privileged to brief and argue both cases in the appellate court.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.

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I have been away from the blog for a few days because I have been preparing for oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought out by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do, is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

What I see is the same group of doctors being used repeatedly by certain defense attorneys, law firms, and insurance companies. Many of these doctors are very well compensated for giving testimony. I have encountered doctors who have billed as much as a million dollars in one year for doing this type of work.

We want to put this information before the jury to show that the witness is biased in favor of those who are writing his very large paycheck. Often, the witness will not tell us how much they are paid for working as a professional witness, or will greatly under-report their earnings. So we subpoena financial documentation to see if we are being given a straight answer.

The Court of Appeals is expected to address the scope of the documentation we are able to obtain, and the means for obtaining it. The opinion could have broad implications for all Maryland lawyers handling injury cases. I think the oral argument went pretty well. If you are interested and have the free time, you can see the argument here. They are cases No. 60 and 90.

I am not sure how long it will take the court to issue an opinion, but I expect to wait at least a few months. I will post the opinion when it comes out. I am hoping the court will come down on the side of our juries having accurate information about the self-interest of the witnesses presented to them.

Yesterday I was in the Circuit Court for Baltimore City for a hearing on a motion for summary judgment filed by a defendant in a products liability case.

I think the way the hearing went down contains a lesson for defending against summary judgment motions.

My primary argument in opposition was a legal one. Without getting into the facts of the case, I thought I had a pretty strong legal argument that even if the facts were undisputed, the motion could not be granted because the defendant was not entitled to judgment as a matter of law. That was the primary argument I made in the motion papers and at the hearing.

The only problem was that it soon because apparent that the hearing judge hated this argument.

Luckily, I was able to shift to the backup argument- that the defendant had failed to show that the material facts of the case were undisputed. I was able to show the court inconsistencies between the defendant's corporate representative's depostion testimony and the facts he swore to in his affidavit in support of the defendants motion.

Ultimately, the hearing judge was persuaded that these inconsistencies were sufficient to preclude the entry of summary judgment.

I think the lesson here is that a defendant needs two things to get summary judgment- undisputed facts and a right to judgment as a matter of law. If you have arguments to make on both of these points, make them. The facts and the law work together, so you need to be prepared to use both in opposition.

I think it is generally best to lead with your strongest argument. But where you have more than one good-faith argument to make, do it.

Yesterday I received an order from the Court of Appeals of Maryland scheduling oral argument in two cases I am handling. Really, it is one argument, but relates to two cases that have been consolidated on appeal.

The first case is a case my colleague Rod Gaston had for trial in the Circuit Court for Anne Arundel County. The defendants named a neurosurgeon as an expert witness. Rod obtained an order compelling him to produce certain financial records in an effort to find out how much he is paid for testifying in general, and for the defense attorneys, defense law firms and insurance companies involved in the case specifically. The doctor has appealed that order.

The second case is a truck accident case I am handling in the Circuit Court for Montgomery County. That case has been stayed in the trial court pending the outcome of the appeal. There, the trial court entered a similar order, only with a strong confidentiality provision protecting the privacy of the records to be produced. The doctor has appealed that order as well.

It's the same doctor in both cases. The evidence is clear that he is a "professional witness." We also have him as a retained defense medical expert in a few other cases we have in the office. He has been ordered to produce financial information in other cases as well, and I understand more appeals will be forthcoming. It appears to be the doctor's position that all of the judges in various counties across Maryland who have ordered him to produce this material are wrong, and have abused their judicial discretion.

The issue before the Court of Appeals is whether the trial courts' orders were an abuse of discretion under the Maryland Rules and the relevant case law, including Wrobleski v. DeLara.

These cases may have broad implications for how expert witness bias discovery is conducted in Maryland auto and truck accident cases. Miller & Zois believe that juries are entitled to know if the professional witnesses put before them have a financial interest in testifying, or in testifying for any particular lawyers, firms or insurance companies. And what the extent of that financial interest is.

The Court's opinion in these cases is likely to significantly affect plaintiffs' lawyers' ability to find evidence of bias so that juries have the facts they need to determine whether they should believe the witnesses put before them.

So if you are interested, circle 1/12 on your calendar. The argument will be broadcast live on the web from the Maryland Judiciary website.

We are always hearing about these evil, un-American frivolous lawsuits that threaten the very fabric of our society. OK, I get it. I dislike frivolous lawsuits as much as anybody. They devalue the claims of the truly injured, diminish the reputation of the plaintiff's bar, and waste time and money.

But what about meritless defenses that are made against non-frivolous lawsuits? Two great examples today.

First, Eric Turkewitz writes about a New York defense attorney making the argument that pain is not a "personal injury." Riiiiiight.

Next, Walter Olson at Overlawyered blogs about attorneys defending a hotel against a negligent security case. The plaintiff alleged that the hotel's negligent security led to her violent rape. The geniuses defending the case withdrew the defenses that the woman was contributorily negligent, careless, and that she failed to mitigate her damages. Good call guys. Blaming the victim may not be the best defense strategy in a rape case. Last time I checked, women were 50% of the population, and most likely the jury pool. As an aside, I like Walter's blog because he calls out stupidity where he perceives it, on both sides.

So, tort reformers, take note. Beware of frivolous defenses that do nothing but burden the judicial system, cost everyone money, and set up unfair roadblocks to justice for innocent victims.

The Maryland Accident Lawyer Blog provides a good tip for Maryland accident lawyers trying to serve out-of-state defendants in car accidents in Baltimore.