Baltimore Injury Lawyer Blog

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.

Continue reading "Appellate Opinion On Expert Witness Financial Bias" »

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.

The best way to attack a defense medical witness’ testimony is to conduct an effective cross-examination. One of the ways we do this is by exposing the doctor’s financial interest in acting as a professional witness.

Maryland law allows discovery of how much a professional witness earns from testifying, as well as what percentage of his overall income is earned from working as a paid witness. At Miller & Zois, we don’t take the doctor’s word for it. Our practice is to issue a subpoena for the financial records that document the amounts the DME (Defense Medical Exam) doctor is paid by insurance companies and defense attorneys.

The doctors do not like this very much. Usually the response we receive is a Motion for Protective order from the doctor’s attorney asking that the records not be produced. If the court orders that the financial records be produced, usually that is the last you see of the DME doctor. Doctors will generally refuse to testify before producing these records.

I had a hearing on one of these motions filed by an DME doctor last week in the Circuit Court for Montgomery County. The doctor lost. He was ordered to produce the 1099 and other tax forms showing how much he has been paid in the last two years by insurance companies and defense attorneys. I am waiting to see if he appeals or just bails from the case. Every time this particular doctor has been ordered to produce these records, he has either appealed or withdrawn.

The doctors and the defense bar think we do this because we know that if the records are ordered to be produced the doctor will refuse to testify. Obviously that makes my job as plaintiff’s counsel easier. The truth of the matter is that we subpoena these records because it is the only way to ensure a good cross-examination. Otherwise the witness can make up any number that he thinks won’t make him look bad, or claim not to know the answers at all, because some mysterious “bookkeeper” has that information. I don’t think it’s my fault that these doctors will refuse to testify before they admit the extent to which their opinions are bought and paid for by the insurance industry and the defense bar.

There's an old saying that you should never put anything in writing that you don't want to see as an exhibit someday. There is a lot of wisdom in this.

Yesterday I was taking a deposition in a collateral dispute related to a car accident injury case. I was cross examining a witness about a very strongly worded letter he had sent to one of the people involved. The witness was not happy to be asked about every intemperate thing he had said in the letter, and whether he had any factual basis to say those things. Maybe it will not ultimately affect the litigation, but it sure made him look bad.

Write this down: don't write correspondence when you are mad! Now, you will most likely do this anyway, but do it in a way that doesn't cause harm or embarrassment. If you write angry, don't mail angry. Let it sit for a day and then reread it. Or show it to a colleague to see if it should be toned down. Angry missives seldom contribute to a real resolution of anything, and can be embarrassing when you have to explain them in a deposition or respond to them as exhibits to a motion.

Be especially aware of email. People tend to write email very conversationally. Don't email something you don't want to see again.

Every personal injury lawyer I know has a pile of stories about the outrageous things that happen at depositions. This is the part of the pre-trial discovery process that is most subject to abuse. I think this is because it happens face to face, often in front of the client, and without a judge to play referee.

I was in a deposition in a car accident injury case this morning. The case is pending in the Circuit Court for Baltimore City. My client is a nice 25 year-old woman who was in a pretty serious accident with a gasoline tanker truck. Her right leg was more or less destroyed in the acccident.

The female defense attorney for some reason found the following questions appropriate:

"You had an abortion 2 weeks before your accident?"

"Did that upset you?"

"How far along were you?"

"Who was the father?"

Needless to say, I instructed my sobbing client not to answer these questions. The ostensible reason these were proper questions was that if my client were upset from the abortion two weeks prior, perhaps that emotional upset caused her to run the red light. What a pile of garbage.

I am confident that there isn't a judge in the state that would order my client to answer those questions.

I believe I was justified in instructing the client not to answer. In Maryland, the Discovery Guidelines of the State Bar are reprinted just before the section of the Maryland Rules pertaining to discovery. They are not part of the Maryland Rules, but are generally given the force of law by trial court judges.

Guideline Eight addresses instructions not to answer at depositions. It states that an attorney should not question a deponent in a manner "he knows or should know would serve merely to harass or annoy the deponent." Guideline Eight also says instructions not to answer are presumptively improper unless "the question is completely irrelevant or intended to embarrass the witness." I think the line of questioning I described is exactly what I am supposed to be preventing by instructing the witness not to answer.

I hope this results in the filing of a motion to compel. I want to see defense counsel try to justify this to a judge.

Yesterday I blogged about the special challenges inherent in conducting a deposition through an interpreter.

This is an important skill for Baltimore City injury lawyers. Historically, Baltimore City has been home to many generations of immigrants. This trend has continued, with Baltimore City's latino population rising. The jurisdictions surrounding Baltimore City also have many residents for whom English is a second language, notably Montgomery County and Prince George's County. There are also increasing Spanish-speaking populations on Maryland's Eastern Shore. So taking and defending cross-cultural depositions is an important skill for personal injury lawyers.

Injury lawyers preparing for depositions using interpreters may want to take a look at A Lawyer's Guide to Cross-Cultural Depositions. Nina Ivanichvili sent me this article in response to yesterday's blog post. Her article provides a number of useful thoughts on this topic. For example, she speaks about how important it is to have some idea of the deponent's cultural assumptions in order to get the required facts from the deposition. Nina also has a blog called Translation for Lawyers.