Baltimore Injury Lawyer Blog

Last week I spent three days trying a car accident case in the Circuit Court for Charles County. There were two defendants- the driver who caused the accident, and my client's insurance carrier. There was a direct suit against the insurance carrier because the defendant driver had the minimum insurance permitted in Maryland (20k per person, 40k per incident), and we alleged that the plaintiff's damages exceeded the defendant's policy limit. So we brought in my client's insurance company as a defendant, because there were underinsured motorists' benefits available to cover the damages that exceeded the defendant driver's policy.

When you are litigating against the tortfeasor and the UM/UIM carrier, there are two legal issues you should expect to address before the trial begins.

First, it is a near-certainty that the insurance company will make a motion to allow it to try the case without being identified to the jury. This makes sense from their perspective, because they do not want the jury to know that any damages will be paid by an insurance company, or that the Plaintiff was forced to sue his own insurer.

The only problem is that Maryland law on this issue is exactly the opposite. There is a 2004 case from the Court of Special Appeals of Maryland that is directly on point. It is called King v. State Farm. When the insurance company is a party to the lawsuit, it may not remain anonymous. The insurance company may be identified to the jury, and the jury may be told why the carrier is a party to the case. I keep a copy of this case in my desk drawer, and bring it to court whenever I am trying a UM/UIM case. Normally, once this controlling authority is presented to the trial court, the insurance compnay's motion to stay anonymous is quickly denied.

The second legal issue is that when it comes time for jury selection, the two defendants will ask the court to award them each separate peremptory challenges. In a civil jury trial in Maryland, generally each side gets 4 peremptory challenges, plus one for the alternate juror. What typically happens is that the tortfeasor and the UM/UIM carrier ask to be awarded separate sets of peremptory challenges. This would be bad for the Plaintiff, since it would give the defendants twice as much control over the makeup of the jury.

All Maryland personal injury lawyers who handle these kinds of cases need to know about Md. Rule 2-512(e). Under the rule, joint defendants are considered to be a single party for the purposes of awarding peremptory challenges unless the trial judge determines that there are "adverse or hostile interests" between the defendants AND that the nature of those interests justifies granting them separate peremptory challenges. In a typical UM/UIM case, separate strikes should not be granted because the two defendants have identical interests with respect to the plaintiff- defending on liability and damages. Even where tehre is a cross-claim between the defendants, normally their interest against the plaintiff will be identical, and therefore they should share a single set of challenges. See Kloetzi v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985).

So before you head to court to try a UM/UIM case, always be ready to address these two issues. If you try a lot of car accident cases, I recommend doing what I do. I keep the authority on these two issues in a folder in my file cabinet, and bring it with me for all of my UM/UIM trials. Since the law is generally favorable to Plaintiffs on these points, it is nearly malpractice to be unprepared to present it to the court.

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.

I wonder if the lawyer representing Terrell Suggs’ girlfriend has much experience in plaintiffs’ tort litigation. Here’s why. First- filing a 70 million dollar lawsuit before the final protective order hearing is a bad idea simply because it offers a great financial motive cross-examination to the other side. Second- it hurts your settlement leverage, because for famous people silence is worth something. Third- running to the courthouse to file a suit for money damages isn’t going to look good to your mostly conservative, Ravens fan Baltimore County jury when the battery case goes to trial. Maybe the amount of the ad damnum won’t come into evidence, but the timeline sure will. Fourth- for a case arising after 10/01/09, your non-economic damages are capped at $725,000. So I guess you have $19,250,000 in economic damages, right? That must have been a really, really bad broken nose. I guess filing for such a large amount, so quickly, did accomplish one of the goals- it got the lawyer’s name in the paper, and he smartly declined comment. I really think the primary goals- getting a determination on custody and the protective order- could best be accomplished without all of the sensationalism and media attention caused by the 70 million dollar lawsuit. After all, there are three more years to file the tort claim.

If this woman had come to me for legal representation, the first thing I would have done would be to find the most expert family lawyer I could to handle the custody and protective order case. I have handled protective order hearings before, but there are people who do that for a living, more expertly than I could. I wonder if the family lawyer representing her will associate with experienced co-counsel for the tort case? I’m curious to see how this turns out, but based on what I have seen so far, I hope Ms. Williams has some pretty compelling evidence or she could have a tough fight on her hands. Too bad there's no grounds to transfer venue to Pittsburgh.

WhiteCoat advocates a loser-pays system in medical malpractice cases. Sure. I’ll go along with that, if it comes with automatic liability for the physician if the patient is not cured. After all, it’s fair for he who does not succeed to pay, right? Why don’t we all agree that doctors know more about medicine than lawyers, and lawyers know more about the law than doctors?

Paul Luvera has some tips for cross-examining Defense Medical Exam doctors. Paul calls this a basic outline, which it is. Miller & Zois lawyers use a much more detailed approach, but Paul provides an outstanding basic foundation for the cross.

I had never heard of Moe Levine until I got an ad for a book about him from the American Association for Justice. Then I found a closing he gave in a case about a young woman who broke her arm in a car accident. This is an outstanding effort in a case all of us have tried at least once. He truly does a wonderful job of personalizing his client’s non-economic damages in a case where there is a real, but not catastrophic, injury. Thanks to Howard Nations for providing this wonderful resource.

The way people think and speak about time is a recurring issue in personal injury lawsuits, particularly those involving auto and truck accidents. All drivers are constantly required to judge speed and distance simply to get where they are going. This leads to the perception that drivers and witnesses are able to accurately estimate time, speed and distance. However, scientific studies by professional accident reconstructionists confirm that eyewitnesses are most often wrong when they try to estimate these factors.

Often, people speak in a very non-literal way about time. A minute is seen as a very short period of time by most people. A minute is about 1/1400th of a day. When a witness says something took “about a minute” they very rarely mean that it took 60 seconds. More frequently, they mean “not very long.”

This can be extremely important in intersection cases. It may arise in the context of how long the plaintiff or defendant had to see and react to oncoming traffic. Or where a vehicle was when a light changed, or how long it took for a vehicle to travel from point A to point B.

Witnesses never realize that when they are asked to estimate time, it is rarely simply because the questioner wants to know about how long something took. You see, time/speed/distance is really just a three-sided math problem. If you know any two elements, finding the third is a simple calculation.

Continue reading "Don't Let Time, Speed or Distance Sink Your Case" »

I have but a single thought on losing: It sucks. I hate it, and I have a hard time getting past it. Thankfully, it doesn't happen all that often.

My fiancee's parents live next door to a lawyer I have known for many years, and used to clerk for. He lost a 2.8 million dollar judgment in a civil case. My future father-in-law likes to tease him about it. He doesn't mean anything by it- he isn't an attorney and doesn't understand that what he is doing is the legal equivalent of cracking jokes to Bill Buckner about the ball that went between his legs in the 1986 World Series, causing the Red Sox to lose Game 6 and ultimately the Championship.

Here are noted trial lawyer Paul Luvera's thoughts on losing, which I think gives a window into how trial lawyers really feel when they lose.

Everybody loses sometimes. Ted Williams hit over .400 and got to the Hall of Fame. He failed to get a hit 60% of the time. It happens to everyone (except, apparently, Gerry Spence) including me. But I don't have to like it, and I won't.

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.

Probably the most common question I (and most personal injury lawyers) get from clients is “I haven’t heard from you in a while, what’s going on with my case?”

Generally, the reason you haven’t heard from me in a while is because there is nothing going on with your case. I know, that’s kind of a flip answer.

I think the reason behind the question is that most clients do not have a detailed understanding of the life cycle of a personal injury case. After intake, and during the client’s medical treatment, not a whole lot goes on. This is particularly true in terms of personal interaction with the lawyer. We generally follow up with treating clients every three weeks. We have a staff member whose title is “treatment monitor,” who keeps track of the client’s medical progress and makes sure we are aware of all current medical treatment so that we can secure documentation. It just isn’t efficient to have a lawyer handling all of these communications.

So there is not a lot of direct contact between lawyer and client during this period, but that is because there are few legal issues that arise during this phase of the case. Once treatment is complete, there is much more personal involvement by the lawyer in addressing settlement issues and if needed, litigation.

So there you go. Don’t get worried. We are on top of your case. We just need to get you better before we can move the case along to the next stage.

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.

Today's Baltimore Sun reports that Judge Davis has been confirmed to a seat on the U.S. Court of Appeals for the 4th Circuit. Hopefully we will see the Senate act to end the shameful delays in judicial appointments.

He's a good judge. There is no good reason he wasn't immediately confirmed. Hopefully the Senate will move quickly to confirm the remaining three nominees to that court, fully staffing it for the first time in a very long time.

Last week, I argued an appeal in a truck accident case. I was in the Court of Special Appeals of Maryland, which is our state's intermediate appellate court. My case was fourth in line on the day's docket. That meant I got to (was forced to) sit through the argument on the cases ahead of mine.

The other arguments ran the gamut from abominable to excellent, and featured a range of attorneys from young lawyers to experienced appellate advocates.

One thing I saw some of these other lawyers do was to address the questioning judges by name. For example, "Great question, Judge Hollander." Actually, my example violates two rules of appellate argument. Never tell a judge they asked a great question. Presumably, they also thought it was a good question, or they would have remained silent.

But my real beef here is that I think it is never appropriate to call a judge by name in a courtroom. My practice is to refer to all members of the court as "Your Honor" if we are in a setting where I am being a lawyer and they are being a judge. To do otherwise seems disrespectful, and could be taken as implying a personal relationship that does not exist.

When I ran into a member of my appellate panel in the lobby prior to the start to the docket, I found "Good morning, Judge Pierson" totally appropriate. When I am in a courtroom and he is on the bench, that is "Good morning, Your Honor.

I happen to know the most recent past clerk for one on the judges on my panel. Afterwards I emailed her about this issue. She actually said she even called her judge "Your Honor" in chambers.

Maybe I am wrong about this, but I don't think so. At a minimum, sticking with the formal "Your Honor" is never going to get me in trouble. And it is also great if you happen to be bad with names.

You know why? Because reform is supposed to make something better, not worse. I am stealing the phrase "tort reform" back from those who would destroy injury victims' rights for the sake of simple economic expediency. So here are John Bratt's proposals for Maryland tort reform.

First, do away with the antiquated "contributory negligence" standard. In Maryland, if you are even a teensy, eensy bit negligent, you can never make a recovery in tort. "But wait", exclaims a chorus of the uninformed, "that's not fair- if you are negligent it is your own fault." Oh really? What about a pedestrian who looks left, but not right and then a drunk driver runs him down? His fault, huh? Good thing Donte Stallworth ran that guy over in Florida, not Maryland. In our state, there is a good chance that guy loses his case against the drunk driver. Maryland should abandon this unfair standard and move to a contributory negligence system such as those in use in 44 other states.

Second, our legislature should appeal the "actual malice" standard to recover punitive damages. What this means is that in order to recover ounitive damages, you must prove that whatever the defendant did was not only intentional, but done out of specific ill will toward the injured person. There is a great illustration in the news right now. A 20 year old college student, a pedestrian, was run down and killed by a repeat drunk driver, who then left the scene. It turns out, he was captured on various cameras driving erratically throughout the city before the fatal collision. That poor young woman's family will not be able to recover punitive damages. Is that fair? This is a case where allowing punitive damages is not only morally right, but would provide a benefit to society by showing that this conduct will not be tolerated n the community.

Finally, the big one. I would abolish all arbitrary damages caps. Damages caps are unfair, un-American, and deprive citizens of their right to have their damages determined by a jury. Juries are kind of a big deal in America. It's in the Constitution and all. Juries decide whether people live or die, go to prison or go free. But when it comes to some doctor or insurance company's pocketbook, we don't trust them anymore. That's stupid. The whole point of our system of government is that it puts the ultimate power in the hands of the people. Arbitrary damages caps take that power away from our juries.

Laura Zois and I had a trial this summer where we were representing a young woman whose right leg was crushed by a gas tanker that ran a red light. Our Baltimore City jury awarded her $63,000 in medical bills and $1,000,000 in non-economic damages. Because of Maryland's arbitrary cap on non-economic damages, the verdict was automatically reduced to $729,000. When we told the jury about this, they were mad. They put a lot of time and effort into arriving at a fair verdict, only to have it undone by a law they were not allowed to be told about during the trial. That's not fair. They intended their verdict to compensate my client for the rest of her life for her permanent injuries, not two-thirds of it.

These three tort reform proposals would do an immense amount of good for injury victims in Maryland. They make sense, and promote fairness in our civil justice system. On the other hand, the only real argument against them is an economic one, made by those who stand to lose the most- wrongdoers and their insurers.

Connecticut has outlawed the practice of using "runners"- when crooked lawyers pay third parties to solicit injury plaintiffs either in person at hospitals or by going through police reports. These injured folks are then steered to crooked doctors, and the crooked lawyer helps them recover on the trumped-up claim.

Of course, I am sure that there are also genuinely injured people who are ensnared by these "runners" as well. The problem there is that they end up with the lawyer who uses runners, rather than with the most competent lawyer for their kind of case.

This is one of the few things that reputable personal injury lawyers, insurance companies, judges and legislators all agree on. This is a practice that is a harm to society, and brings the legal system into disrepute. Thankfully, this practice has been illegal in Maryland for many years.

Thanks to Walter Olson at Point of Law for the link.

The Daily Record has published an AP report that the Archdiocese of Delaware has filed for bankruptcy protection in an effort to avoid litigating 88 legal claims of sexual abuse. According to the article, the filing was made Sunday night, "on the eve of a civil trial." The decision was made by the Rev. W. Francis Malooly, Archbishop of the Catholic Diocese of Wilmington.

I knew Bishop Malooly as a boy, in Baltimore's Gardenville neighborhood. Back then, we called him Father Fran. I served mass with him as an altar boy.

I think what he is doing here is terrible. I understand he has an obligation to the Archdiocese, and that the law allows for these kind of filings.

But I think this is terrible. Does the Diocese not have an obligation to these Catholics alleging abuse? Obviously, there is a potential legal obligation. But these victims are Catholics and children of God, who allege abuse by a priest. And by a single action, they have been deprived of their day in court. Does the Diocese not have a higher, moral obligation to see that justice is done?

I wonder which Commandment is the one that says it is OK to use man's law to avoid paying for actions that are forbidden by God's law?

Today is October 14. Each month the Maryland Board of Physicians posts on its website a report of sanction proceedings against the physicians and other medical professionals it regulates. The sanctions for September, 2009 were just posted today.

This is a big deal. That list of sanction proceedings is pretty much the only way for Marylanders to know if there has been a proceeding against their doctor’s license. Here is a great example to show why this is important, and why the Board of Physicians gives mere lip service to the safety of Maryland patients.

I have a client who was injured in an accident on January 1, 2007. She did what most people would do. She had a visit at the ER, and then followed up for treatment with her regular doctor. She was treated by her primary care doctor from January 20, 2007 to December 12, 2007. The doctor prescribed medications, physical therapy and chiropractic treatment. That all sounds great, right? Perfectly appropriate.

Until I tell you that this doctor had her license suspended effective September 30, 2006 for failing to resolve a state tax lien. On January 22, 2008, the Board finally realized that the doctor had been practicing without a license since October 1, 2006. They only found out because someone made a complaint. In February, 2009, the Board finally got around to sanctioning the doctor, with a $25,000 fine and imposing conditions for reinstatement.

So, all of the treatment my client got was done by a doctor with no license.

Continue reading "The Maryland Board of Physicians Puts All Marylanders At Risk (Except Bad Doctors, They Seem to be OK)" »

I just finished a two-day jury trial in the Circuit Court for Cecil County. Based solely on the preceding sentence, any experienced Maryland personal injury lawyers reading this probably have an idea where this post is going.

I was trying one of the most difficult types of cases to present to a jury. A rear-end collision with no visible damage to the vehicles involved, allegations of a fairly serious injury, and venue in a rural, conservative county with a (well-deserved) reputation for not being plaintiff-friendly.

The defendant driver claimed that she merely took her foot off her brake pedal a little too early while stopped at a traffic signal, and drifted into the back of my client's car. The photos of the vehicle damage supported this version of events- there was no damage visible.

My client felt pain in her neck, and was transported by ambulance to the local emergency department, where she was diagnosed with a cervical strain and told to follow up with her primary care doctor in 3-5 days if it did not improve. It didn't, so she did. Ultimately, she was diagnosed with a herniated disc at C5-6. This was confirmed by MRI, and the client's shoulder radiculopathy was confirmed by EMG.

At trial, the client's primary care doctor testified that he had been her doctor for many years, and that she had never had a neck problem before this accident. Her neurologist also testified that the herniated disc was caused by the accident. He testified that the vehicle damage photos did not change that opinion.

There was no defense medical expert.

The jury awarded $2,500.00 of the claimed medical bills, and $500.00 for non-economic damages.

I can't say this was an unexpected result on these facts in that jurisdiction. I tend to be more aggressive than most in trying low property damage cases. This is because I believe people do get injured in low-impact collisions and they deserve to have a lawyer willing to fight to get a jury to do the right thing; and because I look at these kinds of cases as one of the biggest challenges for plaintiff's accident lawyers.

Here, an ambulance crew transported my client to a hospital, the hospital diagnosed a neck problem, and two local physicians testified as to the medical causation issue. I am not sure what more evidence could have been produced linking the injury to the accident. I wonder whether any amount of evidence would have been enough to overcome the "nobody could have gotten hurt in this accident" defense.

This one is now stored in the "Get 'Em Next Time File." I am still mad, though. When I lose and don't care, I will quit doing trial work.

Ok. If you are a really dedicated reader of the blogs written by Miller & Zois lawyers, you may have caught that the title above is a (sort of) facetious reference to Ron Miller's post about the various types of law blogs out there.

My very own Baltimore Injury Lawyer Blog has exceeded the life expectancy of most new attorney blogs. As Ron notes, the Drug & Device Lawyer Blog reports that more than half of lawyer blogs fail in the first year.

This is not surpising, because most of them are horrible. Usually there are three culprits: 1) bad writing, 2) lousy content, and 3) infrequent updates. These are the "usual suspects" in the mystery of "why is your blog crappy?" Which makes sense, considering that the price of admission is low- a computer, an internet connection, and something to say.

I have now escaped failure for fourteen months. Go me! Some would consider this a surprise, but they are mostly people who thought that giving me an unedited pipeline to the world would be a recipe for disaster because of my tendency to say (and write) what I actually think. I think that is why this blog works.

My blog is not a chore because I like to write. I write about something that interests me, namely the law, specifically personal injury litigation. It would be a lie to say that marketing is not a reason I write the blog. It would be a bigger lie to say marketing is the only reason I write the blog.

Ron talks about his blog being a hybrid- the focus is on providing quality content that people want to read and come back to, but remembering to throw your keywords in there to keep our Google overlords happy. That is how I approach this blog.

Accordingly, here are my tips on keeping a personal injury lawyer blog from failing in the first year:

1) Be a person who likes to write. If you hate to write you will not update the blog, and it will fail.

2) Write about something you know about and like. The value of what you have to say is proportional to your level of knowledge of the subject. Lack of knowledge = crappy content= no readers= fail.

3) Have at least a basic knowledge of written English. You can't write= crappy content=no readers=fail.

4) Provide actual content that might be of use to someone. Blatant marketing pitches are unhelpful. "I am a personal injury lawyer so you should hire me for your personal injury case" doesn't give the reader much. Neither does veiled marketing like "Five Killed in Accident on I-97." On the other hand, "Top Ten Deposition Tips" might actually be useful.

5) Be patient. It takes time to build a readership. If you give up, your blog will certainly fail.

If you are thinking of becoming a blogger, do it because you want to, not because some marketing consultant told you it was a good idea.

I was just having a conversation with a former colleague who works defending against personal injury cases, mostly auto and truck collisions. We were discussing a trial he had recently finished, and he had remarked to me that he thought the plaintiff was poorly prepared for his testimony at trial. Basically, he thought that the jury would have awarded the plaintiff more money if he had been better prepared.

This confirms my own experience. Client preparation is something many personal injury lawyers do not do very well. I'm not sure if this is because of the time pressure created by a busy practice, or because of a simple lack of awareness of how important client prep is to success at trial.

At Miller & Zois, one of the fundamental principles of our personal injury trial practice is that we strive to get the most out of the portions of our case that we control. Perhaps the biggest thing in a trial that you have some degree of control over is the presentation of the client. The old saw that a personal injury trial is a "beauty contest" is true. If the plaintiff is not credible and likeable, it will be very tough to get a good result.

The client should never hear a question at trial that has no been gone over in prep. This is a twofold challenge. The client needs to understand the goals and structure of their counsel's direct examination, and also needs to be ready for questions to be expected in cross-examination. I generally do at least one mock direct and mock cross with each client. The client needs to be aware of any prior injury claims, or any medical problems to the body parts at issue. The client needs to be familiar with their deposition testimony, and the answers to interrogatories. I make sure the client has copies of the following: all medical records and bills, answers to interrogaotries, deposition testimony.

At a minimum, the client should know and be able to relate the basics of the injury, its effects, and the medical treatment. I have found that clients who are well prepared get better results at trial. Generally the time spent is worth it.

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.

A long time ago, I used do do tort defense work at a prominent Baltimore law firm. My caseload mostly consisted of defending injury cases filed against an amusement park. Summer is the busiest time of year for these operations, and lately I have been seeing a lot of amusement park commercials on television.

These places are popular because of the thrills they promise. I think most customers assume these places are a safe place for thrill-seeking because they are inspected and regulated. You'd be wrong about that. Because of the forces applied to the human body during most amusement rides, injuries are commonplace. But most people don't know that the regulatory scheme varies from place to place, and is usually dictated by state law.

Most amusement operators vigorously defend injury claims. Next time you go on a roller-coaster, take a good look at the signage. If you ride and are injured, you may end up facing an argument that you were contributorily negligent by failing to follow the ride instructions. Or that you assumed the risk of your burst fracture at L4-5 because you rode the coaster anyway, despite knowing that you had a sprained back in 1994 (where the signage says folks with back problems shouldn't ride.)

Remember the description in Fight Club of what a recall coordinator does? To paraphrase, if the cost of the recall ends up being more than the average lawsuit payout times the number of expected claims, they don't do one.

I once defended an injury suit against a park made by a rider who alleged that he had broken his tailbone when he skidded across the stop pool on a water ride and collided with the pool wall. Over the prior few years, four other people had the same problem. Common sense would tell us that the landing pool was simply too small. Unfortunately, it was also the most expensive proposed fix. So the park tried a few stop-gap measures, but folks kept getting hurt. I don't know if they ever just extended the pool. I do know that all of the riders who filed suits faced defenses like the ones outlined above.

So some advice for personal injury lawyers considering ride injury claims against amusement parks. First, expect to go to trial. These places are typically aggressive on claims. Second, locate a liability expert early on in the process. Park staff and their attorneys are very knowledgeable on these issues, so you will need to level the playing field. Familiarize yourself with any state regulations and reporting requirements. Subpoena the inspection file from the regulatory authorities. Fight during discovery to make sure you know of any prior problems with the ride at issue. Get copies of any instructions or signage. Act quickly to pin down witnesses. Most park staff are students who quickly disappear at the end of summer, often to foreign countries. Consider whether there may be a negligent design or failure to warn claim against the ride manufacturer. If you do not have experience in product liability claims, consider locating more experienced co-counsel.

I have now resurfaced after a hard-fought four day trial in the Circuit Court for Baltimore City. This is the case that Ron Miller references here.

Laura Zois and I were privileged to obtain a verdict of $1,063,807.37 for our client, who was a 22 year old mother of a one year old at the time of the accident.

This was a hotly contested liability case. Our client contended she was injured when the Defendant, driving a full gasoline tanker, ran a red light. The defendant claimed he had a green light, and that our client must have had the red light. The accident happened at the intersection of Pennington Avenue and Church Street in Baltimore City. Our client's car was totaled, and the gas tanker was damaged, which caused a gasoline spill. Our client had her one-year old son in the car when the crash happened and had to watch him scream for his mom in a stranger's arms while our client was trapped in her car due to her badly broken leg.

There were liability witnesses on both sides. The pivotal witness was a young neighborhood boy was eleven years old at the time of the accident. He testified that he saw the gas tanker run the red light. The primary witness for the defense was a man who had been having a few beers that afternoon on a front porch near the scene of the accident. He testified that the gas tanker had a green light as he went under it. Based on conversations with the jurors after the verdict, the jury was persuaded by the young boy's testimony. He is a very bright young man who made an excellent witness.

Our client had a horrific right leg injury. She fractured her tibia and fibula, and required two surgeries. Now she has a plate and eighteen screws in her leg, permanent scarring, and walks with a limp. Her treating doctor testified at trial that her injuries are permanent, and that she will need a fusion surgery in the future. She was 25 at the time of trial, and her life expectancy is 52.8 more years. She lost nearly a year of her life recovering from this accident.

Our trial judge was the Hon. Sylvester Cox. Judge Cox is a former Baltimore City prosecutor who has tried many, many jury cases as a lawyer before being appointed to the bench. Appearing before him was a pleasure. His rulings were fair, although they did not always go in our direction. He was attentive to the arguments of the lawyers, and he was great at putting the witnesses and jurors at ease. He was a stickler for details and expected excellence.

Cases like this remind me of why I chose to become a lawyer representing injury victims. It is a great feeling to represent people who need our help. Our client is a remarkable young woman who, in spite of adversity, stayed upbeat and kept her faith that everything happens for a reason and that in the end justice would be served. During the three years between her accident and the trial she stayed focused on her job, her education and her son and did not let anything keep her down.

This case should remind us all that our justice system works. Our lawyers believe that helping a person who has a terrible injury as a result of someone else's negligence is always a case worth pursuing, even in a contributory negligence state like Maryland. The only settlement offer in this case was $25,000.00, and that did not come until two weeks before trial. That is less than the client's medical bills of $63,807.37 (which must be repaid to her health insurer). This was a case that had to be tried. Laura and I are very thankful that after a lot of hard work and worry, we were able to achieve a great result for a deserving client with a tremendous need for the justice the jury delivered.