Baltimore Injury Lawyer Blog

A few months ago, I tried a case in Montgomery County Circuit court and got a great verdict. Shortly afterward, I received the defendant’s motion for a new trial. I read the motion, and discussed it with a few of the other lawyers in my office. None of us thought it was a strong motion, and we all believed it was likely to be denied. Until I got a hearing notice in the mail.

Well, I live in Baltimore County, near Towson. I have to be in the car by 7:30 if I hope to be in Rockville by 9 a.m., and I need to make alternative arrangements to get my daughter to daycare since they don’t open early enough to drop her off and still get to Rockville in time.

So the day of the hearing arrives, I make my arrangements, leave early, and drive the 1.5 hours to Rockville. Shortly before 9 a.m., I am sitting in the lobby outside the courtroom when our judge’s law clerk come out and lets me know that our judge was out sick, and the hearing would need to be rescheduled. Bummer, but O.K., everybody gets sick. I have had hearings rescheduled before because I got sick. It’s part of life. So we reschedule the hearing for the following Monday and I drive an hour back to my office.

The next Monday arrives. I do the same routine. Get coverage for daycare dropoff, get in the car early, drive 1.5 hours to Rockville. My hearing is set for 9:30 a.m.. I arrive at the courtroom a few minutes before 9 (I like being early, in case of traffic, etc.). Here comes the law clerk again. He tells me that our judge has two sentencings in criminal cases set for 9 a.m., so our hearing may start a few minutes late. O.K. I understand why these get taken first. You have the same prosecutor in both cases. You need prisoners transported from lockup. You need Sheriff’s deputies for security. I totally get why the judge wants to take these first and get them out of the way.

Continue reading "The Case for Videoconferencing?" »

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.

Here is another great real-life trial preparation tip that I have forgotten myself in the past:

Check the weather the day before!

I am finalizing my preparations for a trial tomorrow in a car accident case in Baltimore County Cicuit Court. According to weather.com, there is a 60% chance of rain tomorrow morning. So my trial prep now includes making sure I remember my galoshes, raincoat and umbrella. It is hard to make a good first impression on the jury when you look like you wore your suit in the shower. From a performance perspective, it's nearly impossible to be at your best when you have wet, cold feet. I know I look like a dork in my galoshes. A warm, dry dork. So I don't care.

I highly recommend the overshoes that I wear (pictured), the Neos Villager. They come up well over the ankle, so they work great in rain or snow. They are more costly than simple rubber ones, but they work better and last longer. Mine were a gift (thanks, Mom!) but if they ever wear out, I will gladly buy another pair.

Also, it is important to have a way to keep your trial materials out of the elements between the car and the courthouse. Using my organizational system, this can be as simple as having a big plastic bag to put over my trial box to keep everything dry on the short walk from the garage to court.

Still, I will be happier if that 40% chance of good weather ends up being what happens.

Having the right equipment is worthless unless you know how to use it. That is why the second important element to using multimedia at trial is preparation. I never, ever, ever use anything at trial that I have not practiced with. For PowerPoint, this means doing a complete practice run just as if I was at trial. This starts with unpacking and setting up the equipment from scratch. Then I click through each slide to make sure that they are in the correct order, they all work and that they appear big enough for the jury to see them.

PRACTICE TIP: I hate text slides and bullet points. So do the experts. I only use PowerPoint for images (photos and important documents) and video. I want the jury focused on me, my client and the story I am telling, not looking past me to read text on a screen. I only use text slides in two circumstances: showing jury instructions in conjunction with my argument, and showing the verdict sheet as I believe it should be completed.

The preparation for using video is basically the same, but may be even more important. If you have a malfunction in opening, you can always ditch the PowerPoint and go old school, Moe Levine-style. Heck, if handled gracefully it might even help you with the jury by humanizing you and showing you are cool under fire. Good lawyers can tell a compelling story with nothing but their words, eyes and body language. Expert video is different. You can’t toss it aside if it doesn’t work because then all of your medical evidence is gone. You have a huge hole in your case where the expert testimony on medical treatment and causation should have been. Yeah, I guess you could read the testimony into the record if there was really no other option, but that is just awful. Unpersuasive and irritating.

Play the video ahead of time, preferably as soon as you get it. Not necessarily all the way through, but enough to make sure it plays on your equipment and that the recording was made correctly. Videographers make mistakes. I have had occasions where the video had audio, but only a black screen, where the video worked but the audio track was never attached, where the audio was obscured by a loud buzzing, and where the audio level was so low it couldn’t be heard even on the loudest setting. That is why I do not recommend doing the video dry run the night before playing it. It is best to practice far enough ahead of time that you can get the videographer to fix any problems with the recording before the trial starts.

PRACTICE TIP: Most laptops have a function that automatically blanks the screen or goes to a screensaver after a certain period of inactivity. Make sure you turn this off. It sucks if the whole setup goes blank during the most important part of your expert’s testimony. Don’t ask me how I know this, but trust me on this one.

I know there are still lawyers out there who are getting good results using 20th century technology like blowups and exhibit boards. But your 21st century jury expects a 21st century trial, and your client is looking for a 21st century verdict. Being organized with the right technology and preparation will allow you to be a 21st century lawyer who can get the results that his clients need.

OK- I am pulling a bit of the ol’ switcheroo here. I know you were probably expecting this installment of my series on trial organization to focus on the trial binder. Relax, that’s coming. I decided to change topics at the last minute because I recently saw two blog posts that touch on another trial organization issue that I was planning to talk about anyway- using PowerPoint or other multimedia presentations at trial.

The legal field tends to lag far behind the business world in its use of technology. But our jurors live in the modern world. They are accustomed to most presentations being accompanied by digital media or video, and they expect this from trial presentations as well. They expect the technology to work right and they expect us to know how to use it.

I often use PowerPoint at trial. It’s more visually impressive than a foam-board blow-up, and I like being able to use the remote to click through images as I speak. I also use video a lot because often it is the only realistic way to present expert medical testimony. Many doctors are unwilling to close down their practice for an afternoon to appear live at trial, and for many cases the fee they would charge to come live is outside the budget for the case. This leaves only Plan B, which is a de bene esse video deposition to be played at trial.

Using either PowerPoint or video at trial poses the same set of organizational challenges. They can be powerful persuasive tools, if they are used the right way and they are used properly. Some studies indicate that jurors only pay close attention for about 4 minutes, and even then they are focusing on visuals and body language more than anything. You don’t want all the jury remembers from that 4 minutes to be you fumbling around, frantically trying to get your equipment to work. Professional jury consultant Alexandra Rudolph agrees that when trial technology doesn’t work, it makes the lawyer look like an amateur and puts the jury’s attention on the attorney instead of the evidence. I don’t think I needed a jury consultant to tell me that, but she's right. Keeping organized minimizes the risk of this happening. So here are my tips for using multimedia technology at trial, some of which I have learned from painful experience.

The first important element to using technology at trial is the equipment itself. Many courts offer access to audiovisual equipment, or it can be reserved through the local bar association (sometimes for a fee). I never use somebody else’s equipment. This is because I don’t have experience using it, I don’t know if it works right, and I would probably have trouble using it seamlessly. Trials are hard enough without learning new equipment on the fly. Instead, I always bring my own equipment.

Physically, this is what I bring to court:

•My laptop

•A 10 foot HDMI cable. This gives you some flexibility on where the laptop is in relation to the screen.

•A 36-inch HD flatscreen monitor with remote control. We have a portable one with its own carrying case for easy transport. Replace this with a projector and screen for longer, more complex, trials.

•A 10 foot, 3 pronged extension cord with multiple outlets. There’s not always going to be an outlet in the courtroom where you want to set the equipment up.

•A remote “clicker” that plugs into the laptop’s USB port, with spare batteries. This allows you to move from slide to slide as you talk, without requiring another person to help. Mine also has a built-in laser pointer, if that’s your thing.

Since this is my equipment and I use it all the time, I can set it up in less than five minutes without fumbling around. For opening or closing, usually I sit the video monitor on a table a few feet in front of the jury box. That lets me move around as I speak, and I can see the screen as I use the remote to move through slides. I do the same thing when I am going to play a video deposition, except I make sure the laptop is behind the monitor with the screen facing the trial tables. That way the lawyers and the parties can follow the testimony without moving to a different location in the courtroom.

Having the right equipment organized and ready is only half the battle, though. Next up: preparing yourself to use it at trial.

In Part I, I talked about how useful a set of portable office supplies can be for staying organized at trial. But that is just a small part of the required level of organization. In this installment, I discuss another vital part of my overall organizational system- the trial box. Keep in mind that I am describing how I organize the typical 2-3 day jury trial. Longer, more complex trials travel in a larger set of boxes that are organized following the same basic outline.

I have a portable file box with wheels that all of my paper materials go in. This is a collapsible plastic box the size of a milk crate with wheels and a handle- the kind you see sales reps and business “road warriors” use. I organize it from front to back using file folders and large Redweld-style folders. Less important or less frequently used items go in the back, more important or often-used items are toward the front.

Starting at the back and moving forward, this is what it contains:

•The “hard” file for the case. I include this “just in case” although I rarely use it for the trial.

•The bound “pleadings binders” containing all the pleadings filed in the case. Each of the pleadings is indexed and tabbed in chronological order for quick reference.

•A folder for defense experts. This has deposition and video transcripts, extra copies of their reports, exhibits, and cross-examination material.

•A similar folder for plaintiff’s experts, containing the same things. If there is a video deposition to be played at trial, I attach it to the transcript with a rubber band or a binder clip, so that it can’t easily be lost.

•A folder (or folders) containing all of the exhibits I intend to admit into evidence, with courtesy copies for defense counsel.

•A folder containing all motions in limine, responses, and copies of the important cases referenced.

•A folder with my requested voir dire, draft jury instructions and verdict sheet. This includes an original for the court and a courtesy copy for defense counsel. None for me- that goes in my trial binder. I clip all three together, and label the ones for the court and counsel. Once I receive the defense versions of these, they go in this folder as well. That way, later in the trial when the court wants to go over instructions on short notice, I can lay my hands on the defense version quickly.

•The “medicals binder” containing a tabbed and indexed set of the Plaintiff’s medical records and bills (I will discuss this in detail in a later post).

•My trial binder (also to be discussed later). Often this goes on top, since I use it the most and it sometimes won’t fit front to back.

•Volume I of the Maryland Rules. This contains the rules for evidence and civil procedure. In my box, it goes on the right-hand side, since the box is wider than an 11-inch folder, so there is extra room over there. I can’t believe that many (if not most) lawyers go to trial without this.

This setup lets me have most of what I need to try the case available at a moment’s notice, in a way that is easy to transport. Next in this series, I will be discussing one of the most important items needed for trial- the trial binder.

I’m writing from a hotel in Wicomico County (on Maryland’s Eastern Shore), where I will begin a two-day jury trial tomorrow morning.

Here’s a great tip for staying organized during trials, especially the ones that keep you away from the office for several days. I always bring a set of portable office supplies. I keep them in a black nylon case that fits right inside my laptop bag. Inside I have:

•A travel-sized stapler

•A miniature three-hole punch for last-minute additions to my trial binder

•Small and medium Post-It notes for flagging transcripts and medical records, or labeling copies of exhibits.

•Paper clips

•Binder clips- one or two in each size

•A yellow highlighter

•A black Sharpie marker

•A red pen

•Extra pens- in my case blue Pilot P-500 Extra Fine point. I have messy handwriting, so the extra fine point helps it stay legible.

I leave the office supply case near where I keep my laptop bag at home, so all I have to do when I am getting organized for trial is open it up, check to make sure I don’t need to replenish anything, and throw it in the bag. Little details like these really help keep my trial presentation organized. I hate a messy, disorganized trial table- I find it very distracting. Having a set of portable office supplies helps me to keep everything in its place in my trial binder and my exhibit folders.

The jury sees everything, so having a clean trial table and a meticulously organized trial binder (and the supplies I need to keep them that way) helps create the right impression right from the start.

One of the odd things about writing a blog is that unless a post happens to generate comments, you don't really get a lot of feedback. That's why it is nice to get some occasional recognition like being included in the LexisNexis Top 25 Top 25 Law Blogs. It is very gratifying to see that people are reading and enjoying the blog nationwide!

But it's not over- voting is open for the #1 Tort Law Blog until December 10. Go over to this link, register and vote. Like just about every (good) trial lawyer I have ever met, I am incredibly competitive, so I want to win this competition! Go vote. Now!

This is all being done by the LexisNexis Litigation Resource Community. I am always in favor of any resource to help lawyers share and use cutting-edge information and trial techniques, and I am happy to be a part of what LexisNexis is doing here.

Earlier this month, I had a three-day jury trial in a car accident case in the Circuit Court for Montgomery County. I tried the case along with the referring lawyer under a Rule 1.5 fee-sharing agreement. Although he is an experienced lawyer, he had never handled a jury trial before because his practice is primarily transactional. He sat second chair, handled a few of the witnesses, and did a great job.

We do this pretty frequently here at M&Z. We encourage our referring lawyers to stay as involved in the cases as they wish. This can range from a straight referral where M&Z has primary responsibility for the case, to a true co-counsel relationship with shared responsibility where we try the case together. I love trying cases with other lawyers, whether it is splitting a trial down the middle with another experienced M&Z trial lawyer or having a less-experienced attorney sit second chair as a learning experience. We had a great time, and our client ended up being very satisfied with the jury’s verdict (which was more than 5 times the last settlement offer of the medical bills only).

Our client was a young woman who had sustained a knee injury in the accident. The defense hired one of the local “usual suspects” to perform a defense medical examination and to give opinion testimony at trial.

Continue reading "Montgomery County Car Accident Trial Report" »

When a driver gets sued for injuring somebody in a car accident, they don't have to go out and spend their own money hiring a lawyer to defend the case. They call up their car insurance company and tell it that they have been sued. They send in the papers and the insurance company provides them with a defense attorney.

Sometimes this is an "in-house" insurance defense lawyer, other times it is an outside lawyer selected and paid by the insurance company. Either way, the insurance company picks and pays for the driver's defense attorney. So what you have is a three-sided (or "tripartite") relationship- insurance company, defense attorney, and defendant driver.

Whether in-house or outside counsel, the defense lawyer has a paramount ethical duty to act in the best interest of his or her client- the defendant driver. This is true even though the insurance company selected the lawyer, is paying the lawyer's fee, and controls most of the important decisions in the litigation, including whether to settle and on what terms.

Unsurprisingly, the defense lawyer may have a certain degree of loyalty to the insurance company with the magic checkbook. Especially when the lawyer is an "in-house" lawyer who is a direct employee of that insurance company, or when the lawyer is outside counsel whose firm depends on a steady stream of business from that insurance company. I can think of at least five small local defense firms that more or less survive off of cases from one insurance carrier.

There can be instances where this dynamic can affect the course of a case. One of these is in the context of an underinsured motorist case. Assume that the negligent driver was operating a car insured by State Farm with a $30,000 coverage limit. Assume further, that my client has his own policy from GEICO with a $100,000 coverage limit. If the defendant's liability insurance is not enough to cover the damages, my client can take advantage of $70,000 more coverage through his own policy ($100,000 - $30,000= $70,000).

Continue reading "How to Make the Defendant Driver Your Ally In UIM Cases" »

This blog has been nominated for inclusion in the Lexis-Nexis Litigation Community's Top 25 Tort Blogs for 2011!

It's certainly gratifying to see that the blog's reputation is continuing to grow nationwide. So if you like the blog, sign up and vote!

You can do that here.

This phase of the competition ends on November 17, so don't procrastinate.

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?