Baltimore Injury Lawyer Blog

I am slowly getting back into my daily routine after concluding a long trial in the Circuit Court for Baltimore City.

Regular readers (assuming there are some) know that I usually provide a summary of my cases that go to trial, but I have to sit this one out. In lieu of my usual post-game wrapup, I offer the following: "The matter resolved in a manner mutually agreeable to the parties, beyond which I have no comment."

Sorry, curious readers. Maybe next time.

But that's OK. On to the next case. And I have some interesting things cooking: a trucking accident that caused a brain injury, a retained foreign body medical negligence case, and an appeal involving the scope of a trial court's authority to confirm an arbitration award, among others. So I won't run out of cool stuff to do.

As a bonus, here is a step into Bizzarro-world. In Shady Grove Orthopedic Assoc. v. Allstate, Justice Scalia writes an opinion in favor of a class of plaintiffs, allowing a class action to proceed in federal court despite a state law that arguably would bar the action. Scalia? Plaintiffs? Wierd, huh? Really, I think this has more to do with the scope of Congress' rules enabling statute and respecting precedent than anything else. But nonetheless, Scalia gives one to the good guys. HT to SCOTUSblog.

Even more bizarre is the makeup of the majority: Scalia, Roberts, Stevens, Thomas and Sotomayor(?) Strange bedfellows indeed.

By way of full disclosure, readers should be aware that I have a man-crush on U.S. Rep. Bruce Braley.

Here's the deal. Braley is a former president of the Iowa Association for Justice, and despite that, won election to Congress. I am also an evil, greedy trial lawyer, and I happen to sit on the board of the Maryland Association for Justice. We recently held our annual Installation Gala recognizing our immediate past president Kevin Goldberg and honoring our new president, Robert Zarbin. Congressman Braley was our keynote speaker.

As part of Braley's talk, he played to us this clip of bad people shouting "trial lawyer" and "ambulance chaser" at him when he spoke on the House floor about patient rights during debate on the healthcare bill:

It's funny how things change. Since the bad guys shouted good old Bruce down, there was a little oil well explosion down in the Gulf of Mexico. People seem to like trial lawyers a lot more when the stuff that "can't happen to them," you know, happens to them. Check out this video (HT to PopTort) of Braley ripping into a Transocean executive because his company coerced traumatized workers from Deepwater Horizon to sign affidavits the day after the accident saying they weren't injured and didn't witness anything. Nobody's shouting him down now, are they?

I wish I lived in Iowa, just so I could vote for Bruce Braley.

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare's interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant's liability insurer. And lets face it- we all know that the client and the defendant won't have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

Our practice at Miller & Zois is to discern early on in the client intake process whether the client is a Medicare recipient (or Medicaid,or state Medical Assistance). This lets us contact Medicare to put it on notice of the injury claim, and to request an itemization of the payments made by Medicare and a statement of Medicare's claimed interest.

Most of this ultimately operates for the protection of the client. First, the billing for the treatment is at the lower, Medicare rate. Once we have Medicare's itemization, we can make sure that the treatment listed is actually related to the case. It is not uncommon for a client who is in a car wreck and then suffers an unrelated injury a short time later, to have treatment for the second injury show up on a Medicare lien if the CPT codes for the treatment are similar. We also then have the opportunity to negotiate with Medicare to compromise the lien. Plus, if you don't do this stuff, not only is the client looking at Medicare coming after them to get the money back, they may find themselves with no coverage, or their Social Security benefits could be docked to recover the payment.

As part of serving on the board of the Maryland Association for Justice, I plan and speak at a fair amount of CLE seminars. These sorts of lien issues are always a concern because of the broad reach of Medicare's right to repayment. They are also a hot topic on our email listserve. I recommend that all lawyers do what they need to educate themselves on this issue, so they know the proper steps to take to protect their clients' interest and avoid committing malpractice. It looks like Maryland is heading towards implementing a mandatory CLE requirement, which should help raise awareness in this area.

Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called "Ten Things I Think I Think." He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):

Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP's actual liability, depending on the amounts recoverable under state law. Yeah, but: lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Missisippi, Alabama and Florida have caps that would apply, but I think it's an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.

Many lawyers in Maryland (and elsewhere, presumably) beleive that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like "within a reasonable degree of medical certainty." First, I think that is not the law. I think it is sufficient if it is clear that the standard is "more likely than not" for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proeedings as cumbersome, time-consuming and annoying for the jury as possible?

I think Bret Michaels is getting a lot of valuable exposure for having not died. I also think it is painfully obvious that the bandanna is because he is bald. One more reason to hit the Maryland State Fair.

I think the primary function of a "Motion for Reconsideration" is to elevate legal billings. In my experience, when trial judges are presented with an additional and more detailed recitation of facts that have already been presented to them, they rarely decide they were wrong the first time. I am sure these motions have some value in making a record for an appeal, but I can't recall ever having seen a trial judge grant one.

I think that when faced with a party or witness whose first language is not English, but has some limited proficiency, more lawyers should consider using an interpreter anyway and letting the witness testify in their native language. Interpreters have a cost and add more time to a deposition, but the transcript will be a lot more accurate. Particularly if the witness stutters and/or is a Seinfeldian "low talker."

You may remember me blogging about a defense verdict in a tough four-day trial recently. I think is was very nice of my client to send me a thoughtful personal letter saying what a great job I did, even though we didn't win. On balance, though, I would rather win and not get a nice letter.

I arrived at the office this morning only to find that we had no power. So then I walked the ten flights up to our office suite. Once I could breathe without feeling like I was going to throw up, I made some notes that became this blog post.

It has been awhile since my last post, so I will bring you up to date.

The week before last I was out with Laura Zois mediating a serious injury product liability case. Our client was crushed by an unsafe product, leading to bilateral skull fractures and emergency brain surgery. Our efforts at settlement did not work out, so we are getting ready for a long trial that should start in six weeks. It is a lot of work, but that is what we do here, and it is the fun part!

Then last week I had a four day trial in an auto accident case in the Circuit Court for Charles County. It involved a low property damage collision, where my client’s doctors concluded that she had developed a chronic pain syndrome secondary to a minor cervical spinal cord contusion. This is a tricky case to try, because juries typically put a lot of stock in vehicle photos, and because the injury sustained was of a type that often does not appear on diagnostic studies like MRI’s, and did not in this case. Ultimately, this was a tough case that resulted in an unfortunate defense verdict. The jury just was not persuaded that the car accident caused the client’s injuries.

You cannot imagine how much I just hated writing that. Perhaps like most trial lawyers, I am very competitive. I can’t help but believe that if I am smart enough and work hard enough, I can control the uncontrollable. I think I am supposed to win every time. But nobody wins every time. OK, nobody but Gerry Spence wins every time. Our saying around the office is that if you never lose, you aren’t trying enough cases. That is another way of saying we try to be aggressive- just because the odds are against something is no reason not to try. Plus, from a client’s perspective, a personal injury lawyer who is afraid to fight is of very little value.

As I write, I am looking at a print of Muhammad Ali standing over Sonny Liston after knocking him out to defend the championship Ali won in his first fight with Liston, a fight Ali was picked to lose. If you never fight, you never win.

Then I spent Friday and Saturday with all of the other lawyers in our office attending a trial skills seminar taught by jury consultant David Ball and noted trial lawyer Don Keenan. I learned trial techniques based on groundbreaking new research, and left excited and ready for the next fight. A great way to stay motivated and to share ideas with a group of talented lawyers, including the five M&Z lawyers I work with every day.

So that brings you current on what I have been up to the last two weeks. Did you miss me? I knew you did.