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?" »

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.

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 one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs. But how accurate is that expert's C.V.?

Often, it pays to ask. Just recently, I found three inaccuracies on a defense expert's C.V.

First, he listed himself as an instructor at a national judicial college and a guest lecturer at a local law school from "1990-present." So I did some research. I found out that the national judicial college hadn't even offered the course he taught in the last two years. I found out that the law school did not list him in the faculty directory (where even part-time and adjunct faculty are listed). When asked, he admitted that he hadn't done either of these things in at least the last five years.

He listed himself as a "consultant" to the Maryland Worker's Compensation Commission- at an address ten years out of date. His explanation was that he doesn't go there very often. I guess they don't send him mail much, either.

Now, is this a silver bullet that takes out an expert's credibility with one shot? Of course not. But if you can show the expert has misrepresented his qualifications, even a little, it's a great beginning for sowing seeds of doubt in the mind of the fact-finder. This is especially true if you can build upon this theme in the rest of the cross. How objective is the guy who embellishes (or lies) on his resume? Can you really trust his opinions? These are the questions you want in the mind of the fact-finder.

As you can tell by some of my recent blog posts, I have been spending a lot of time lately cross-examining defense medical experts. So I thought I would let you in on another fun little technique I use: Using the defense experts to bring in favorable opinions.

In cases where the plaintiff has had complicated or prolonged medical treatment, it is often not possible to present testimony from all of the treating medical professionals that had favorable opinions. This can be because of time constraints, because there would be overlap in the testimony, or because the economics of the case don’t allow it. But that doesn’t mean that there is no way to get these favorable opinions in front of a jury.

One way to do this is through the testimony of the defense medical expert. Usually these witnesses are provided with a complete set of the medical records in the case prior to examining the plaintiff and/or writing their report. Often, the report itself lists and/or summarizes everything they reviewed. The witness will usually agree that they reviewed all of the medical records and considered them in formulating their opinions.

Then I simply take the defense expert through every favorable opinion expressed by a treating doctor.

Did you review the reports of Dr. X’s treatment of the plaintiff?

The reports of the 23 visits he had between July 1, 2007 and August 28, 2008?

You agree that Dr. X had a greater opportunity to observe and evaluate the plaintiff than you did?

Did Dr. X reach a diagnosis?

What was his diagnosis?

Do you agree with that diagnosis?

Why not?

This can be a very effective approach, especially where there are several favorable opinions to work with. You have brought out that there are favorable opinions from other doctors. You have established that the other doctor(s) saw the plaintiff many times over a long interval. Finally, you have “polarized the case” by making the defense expert specifically disagree with these favorable opinions.

I can’t claim credit for these techniques. They are derived from the writings of Rick Friedman, David Ball, Dorothy Clay Sims, and others. But I am sure having fun incorporating them into my practice.

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

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

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

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

So I asked him this set of questions:

You are here in your role as a neurologist?

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

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

You are a member of the American Academy of Neurology?

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

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

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

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

Do you agree with that statement?

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

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

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

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

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

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

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

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

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

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

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

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

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

So be creative, and have fun!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’m not holding my breath, though.

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

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

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

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

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

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

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

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

You specialize in spine surgery, correct?

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

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

When was the last time you performed that operation?

You have read Dr. X's deposition?

You disagree with his opinions?

Do you know Dr. X professionally?

What does he do?

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

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

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

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

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

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

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

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

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

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

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

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

Maryland has an increasingly diverse population. This means that our court system needs to keep pace with the needs of our residents. By law, this includes providing interpreter services to those who are not able to communicate effectively in English.

Here is an article from the Baltimore Sun about how courts in Baltimore City and Baltimore County are addressing this issue.

Because my personal injury practice is statewide, I have noticed that some courts deal with the issue of providing interpreters more effectively than others. I have found Montgomery County to be most effective and best able to provide interpreters in many languages on short notice. I think this is because Montgomery County has long been one of the most ethnically diverse counties in the state, so they have developed subtantial experience serving a variety of non-English speaking populations. There are generally Spanish interpreters available on a few minutes notice, and it there is an established procedure for quickly and simply requesting interpreters in most languages, who actually show up when they are supposed to be there.

It seems like the counties where this tends to be an issue are those where the populace has traditionally not included many non-English speakers. Baltimore City has been experiencing a tremendous rise in Spanish-speaking residents over the last decade, which has spilled into Baltimore County. So as the population in these jurisdictions changes, I expect their courts to become increasingly more efficient in providing interpreters.

One of the most annoying parts of representing plaintiffs in personal injury lawsuits is locating and serving the defendant driver with process. For non-lawyers, "process" refers to the summons issued by the court when a lawsuit is filed. The summons is an order from the court notifying the defendant of the lawsuit and directing her to respond within a particular time period. It is designed to make sure that anyone who is subjected to a lawsuit is given notice of the case and a chance to respond.

Most often, service of process is made by having a process server physically locate the defendant and hand her the papers. The process server executes a sworn affidavit documenting service, which is then filed with the court.

What if you can't find the defendant to serve her? Or if the defendant has been served, but has never participated and seems to have vanished? You must consider filing a Motion for Alternative Service or a Motion for Entry of Order of Default.

Maryland, where I practice, is home to several major military installations that are growing all the time due to the Base Realignment And Closure (BRAC) process. Occasionally when a defendant can't be located, or disappears after being located, it turns out to be because of a military transfer or deployment.

It is a good idea to verify this before asking for alternate service, and it is mandatory before asking for the entry of a default judgment. The Servicemembers' Civil Relief Act (here is a nice 146 page summary from the U.S. Army JAG via the American Bar Association) gives broad (and deservedly so) protections to service members who are sued. If you need to find out if a party to your case is on active duty, the federal government provides a website for just this purpose. Do not be alarmed that your browser may not accept the security certificate, this is an issue with the DOD's certificate process. The site itself is fine.

If you skip this step, your motion is likely to be denied and if it is not, you likely face a big problem down the road when your defendant shows up and says "That's not fair, I was on a mountaintop in Afghanistan!"

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

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

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