Baltimore Injury Lawyer Blog

Yesterday I spent the morning in the District Court of Maryland for Baltimore City. I was there for a trial on an injury case from a Baltimore car accident. The defendant driver was a Russian immigrant who did not speak English. His defense attorney from Geico Insurance had done what she was supposed to do- file a request for an interpreter with the court. In fact, she had done it three times, because the first two times the court sent the request back to her, even though she had done it correctly. Ultimately the case got postponed because the interpreter the court selected had car trouble and wasn't able to get to the courthouse.

But the problems defense counsel had getting the interpreter scheduled in the first place got me thinking about how efficiently different Maryland courts are administered. For example, the District Court of Maryland is a statewide unified system. There are District Court locations in all of Maryland's counties and Baltimore City, but the system itself is funded and administered at the state level. This is great in that all of the locations have similar procedures, and share a common set of forms and rules.

But on the other hand, I think most experienced Maryland lawyers have shared my experience that some of these courts seem to work more efficiently than others. For example, in a multi-defendant case, some locations automatically continue a trial date when a new summons is requested for an unserved defendant, while others do not. This can be really confusing if you often practice in a variety of locations. At Miller & Zois, we practice in every locality in the state. This means we have to pay close attention to the procedures each locality uses in setting cases for trial.

It also seems like the procedures for specially setting cases varies by district. In some counties your case will be set on its own docket, in a particular courtroom. Other places, specially set means more than one case will be on the docket, but the docket will be only specially set cases. I have also had specially set cases that were for some reason left on the regular afternoon docket.

I can't figure out why there are so many differences in what is essentially a unified court system. It would have to be more efficient if these kinds of things worked the same statewide.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Law- General , Personal Injury , Trial Strategy

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For the last two weeks I've been working on several written projects involved in different stages of personal injury cases. I'm working on a Motion for New Trial, a Response to Motion to Dismiss, and an Amicus Curiae brief to the Court of Appeals of Maryland. Because this has occupied a big chunk of my time lately, I have a few thoughts on legal writing in general. Beware, these aren't presented in any organized form.

First remember that punctuation marks generally go inside the quotation marks. I am constantly messing this one up. Not because I don't know the rule, but through a combination of habit and poor proofreading skills. It doesn't help the every time I miss one of these, Ron Miller makes fun of me.

Don't use the phrases "the case at bar", "the instant case" or the like. It's "this case." This one comes to you straight from Justice Scalia's book, once again filtered through our friend "call me Ron" Miller.

One book you should have is the hated Bluebook. I think the concept of a several hundred page manual on citation is ludicrous, but it's really useful for citation forms you may not use every day. For example, I last used it to figure out the rule on the capitalization of court names. I don't know how much trial and appellate courts in Maryland care about this stuff as opposed to the content of the argument, but I am convinced getting it right makes you look better than getting it wrong.

The Motion for New Trial I am working on centers on the application of a few of the Maryland Rules. A fantastic resource on this topic is the book Maryland Rules Commentary, by Paul V. Neimayer and Linda M. Schuett. Both of the authors were heavily involved in the drafting of the Maryland Rules, so their commentary and practice tips carry great weight with the Maryland courts.

Courts value brevity. Trial and appellate courts are required to digest a staggering volume of paper. Oftentimes a compelling argument can be made concisely. There's no value in repetition, particularly if the court gets annoyed that you didn't think they understood your argument the first three times you made it.

An amicus brief isn't just a chance to regurgitate the arguments already made by the party whose viewpoint you favor. The value of an amicus brief is that you aren't limited to the facts of the case in the way the actual parties are. This is a great chance to tell the court all of the public policy reasons behind the position you advance, and to run out the parade of horribles that will happen if the opposite position is accepted. I like to use the amicus brief to show the court in real terms what possible effect its decision can have. This is also a good chance to try and limit a prospective decision to its own facts, if you can show that slightly different facts would mandate a much different result. I also like using these to show how the particular area of law has developed historically, especially where its a concept with long historical roots. I like the phrase "since 1854 (or whatever) it has been the law in this state that...." Then follow it up with something like "Appellants are asking this Court to depart from one hundred and fifty years of settled law and countenance a new exception which would result in (very bad things)."

I also am not a fan of the shotgun approach where every argument that can theoretically apply is made. I like to pick the best two or three arguments and put all my weight behind them.

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Posted In: Law- General , Personal Injury , Trial Strategy

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I just finished a trial in a car accident injury case in the Circuit Court for Baltimore City. This was a case involving a really nice lady who had suffered a soft tissue injury in a car accident. She was (I swear) just leaving church with her daughter when she was in a car crash.

There were two sides to this story, however. The defendant alleged that the accident was my client's fault, claiming she deprived him of his right of way. He retained his own personal injury lawyer and countersued, claiming his own injuries of comparable severity.

Well, the upshot is that I lost this case. The jury just thought the other side of the case seemed more likely. I'm not sure what I could have done differently that might have affected the outcome. I am going to keep thinking though. I think the property damage pictures influenced the jury's view of the mechanics of the accident.

Because of the counterclaims, there were four lawyers if this case- a plaintiff's lawyer and a defense attorney representing each side. A lot of people would say the likelihood of an experience being disagreeable is proportional to the number of lawyers involved. Actually, all counsel were people I like and found enjoyable to work with, and were experienced, competent attorneys. Everyone was civil and respectful, and did their best to do their job.

Nobody likes to lose. I hate it. I have a hard time getting past a bad result, turning it over in my mind trying to assess what went wrong, or what I could have done differently to change the outcome. But, at the same time you'll never win a fight if you're scared to take a punch.

In the end, I think I'd rather be the kind of lawyer who takes a hard loss too seriously than the kind who doesn't care.

My colleague Rod Gaston always says that only the tough cases get tried, but I can't help feeling like Reese Bobby- "If you ain't first, you're last."

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

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

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

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

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

"Did that upset you?"

"How far along were you?"

"Who was the father?"

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

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

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

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

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

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Posted In: Discovery , Law- General , Trial Strategy

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I was thinking about this topic because Monday morning I found myself in a very unusual place for a personal injury lawyer- United States Bankruptcy Court. How did I end up there?

I have an auto accident injury case pending in the Circuit Court for Charles County. I represent a plaintiff who was injured when another driver rear-ended her. During the course of that litigation, it came out that the defendant had a pending bankruptcy claim.

Defense counsel filed a Suggestion of Bankruptcy in the state court case. Pursuant to federal law, that case was stayed until resolution of the bankruptcy. This would be a bad thing, because it would mean that my injured plaintiff would be waiting more or less indefinitely to get her case moving.

There's a way around this problem. Upon proper motion, the bankruptcy court may lift the stay, where the loss is covered by insurance, up to the limit of the policy. This is because under those circumstances, the claim has no potential impact of the bankrupt estate. Once the bankruptcy court enters an order lifting the stay, the thing to do is file a motion in the state court asking that the action no longer be stayed, and that if needed, the court amend the scheduling order to account of all the time that went by due to the bankruptcy stay. Hopefully that will get my case moving again.

The experience got me thinking about appearing in unfamiliar courts in general. I'm no bankruptcy lawyer. Over my career, I've set foot in a bankruptcy court precisely one other time. So what I did Monday is what I do every time I have to appear in a court I don't know very well.

First, I got there early. This lets me get the lay of the land, and allows for a trip to the clerk's office if I need help figuring out what room the hearing is in (which in this case, I did). Second, I get into the courtroom as early as possible and check in with the clerk. I do this for two reasons. It lets me tell the clerk that I am there, and inform them as to the nature of my appearance before the court. This matters, because in terms of docket efficiency, the court will often take uncontested or preliminary matters at the beginning of the docket. Most importantly, this is my chance to ask the clerk how the court is run. What does this judge need? Where am I to stand? Are there any procedures particular to this court?

Court clerks always seem happy to help polite and respectful attorneys with this sort of "scouting report". It really does help, as I was able to get my matter called second on the docket, I knew the court's preferred procedure, and I found out that in the future, if the motion was uncontested, I could call ahead and the matter would be handled with no need for me to appear. It ended up being a very useful five minutes talking with the clerk. I recommend doing this any time you have to appear in a court you don't know very well.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

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Regular readers, assuming there are some, may recall my July 30, 2008 post on an Uninsured Motorist injury case I tried in the Circuit Court for Anne Arundel County.

Yesterday, I received a comment to that blog post from Mark Brown of H. Barritt Peterson & Associates, who was defense counsel in the case. This is a firm of attorneys who are employees of State Farm Insurance, and do nothing but defend State Farm and its insureds when they become involved in litigation. I deal with these folks all the time. They are one of the better staff counsel offices out there. They fight hard, but are generally reasonable in conducting litigation and easy to get along with. Mark is a nice guy and a talented lawyer who did an excellent job in this case.

I'm talking about this for two reasons. One- my personal belief is that if I am going to put myself out there and take stances on legal issues and my cases I should be prepared to stand by those positions. I could have elected to leave Mark's comment "unpublished", but I don't think that's fair. Two- I strongly believe that there are two sides to every story and that considering and discussing viewpoints that differ from my own can lead to good insights. You don't learn much discussing issues with people who already agree with you.

At Miller & Zois, we are glad defense attorneys and insurance adjusters read our blogs. We think this shows the quality of the information we provide, and that the legal community knows we will try cases and do the best we can for our clients.

Mark's additional information about the case is all correct. The client did have $60,000.00 in medical bills, including a spinal fusion surgery. I agree that the result was clearly a compromise verdict, since it awarded the medical bills only, and nothing for wage loss or pain and suffering.

I don't really see where Mark is coming from with the "editorial" comment. The fact is that State Farm did argue my client was contributorily negligent, did argue that the surgery was unrelated to the accident, and did hire a doctor to write a report saying that.

On the other hand, if Mark was talking about the part where I described State Farm as "an insurer known for its hardball tactics and low settlement offers." I agree that's "editorial." I also stand behind my comments. Ask 100 Maryland personal injury lawyers if what I said is accurate comment, and see how many disagree.

I still don't understand the settlement offer originally made. State Farm offered $7,000.00 to settle this case before trial. Even if the real value of the case at trial was just the $60,000.00 in medical bills, how on earth is $7,000.00 a reasonable settlement offer? (I am in no way trying to imply that was Mark's call, by the way.) Moreover, an offer of the amount of the medical bills would have settled the case well prior to trial.

Let's just pretend State Farm can call this one a win because the verdict didn't include all of the claimed damages. Think about that. The jury verdict is 8.57 times the amount of the settlement offer, without even awarding all of the damages claimed. This is what injury plaintiffs and their attorneys are up against.

This is similar to the experience Ron Miller wrote about in his Maryland Injury Lawyer Blog. Ron got a verdict three times the settlement offer in his case, but still "lost".

Obviously these offers are made because people take them. Ron is correct that a lot of the time clients take offers that are too low because they wish to avoid the process of going through the trial. I settled a case with State Farm today in the Circuit Court for Baltimore City under such circumstances. But, on the other hand, more lawyers should try these cases when the client is willing. Maybe this would lead to offers more in line with the actual value of cases at trial.

If you are an injured person considering hiring a personal injury attorney, ask the lawyer you are considering how many injury cases they have taken to trial in the last year. The answer will tell you a lot about the quality of the representation you will get.

Posted by John Bratt | Permalink | Email This Post | Comments (0)

Posted In: Car Accidents , Personal Injury , Trial Strategy

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Today I had to take the deposition of a defendant driver in a car accident injury case in Prince George's County. This gentleman spoke spanish only, so the deposition had to be conducted through a court-certified interpreter.

This was not a new experience for me, so I knew what to expect- it would be a pain. I hate these kinds of depositions because they take forever. Counting the interpreter, everything gets said at least twice.

At the end of the deposiiton I asked the interpreter if there is anything I can do next time to make the deposition go more smoothly. What she told me was a reminder of something I already knew, which is to always address the witness in the first person, rather than saying to the interpreter "[a]sk him if...." Apparently I did this once during the depositon without really thinking about it. A valuable lesson for an otherwise uneventful Tuesday.

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Posted In: Trial Strategy

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Today I had a trial in an auto accident injury case. My case was in Montgomery County District Court. It was what I call a "left turn" case. The defendant driver made a left turn across my client's path, causing a pretty forceful collision.

The crash was bad enough that my guy wasn't able to tell the responding paramedics where he was or what time it was. He did know what day it was. Later he suffered from nausea, believed to be from a concussion. While he was in the hospital (2 days), he needed help from an occupational therapist to use the bathroom and to brush his teeth. Ultimately, he needed about a month of medical treatment. He was treated by the hospital's attending orthopedist and got physical therapy from a therapist that the orthopedist referred him to.

The insurance carrier contested liability at trial. The defendant driver said in his interrogatory answers that my guy was contributorily negligent because he was speeding.

At trial, he testified that he was making left turn on a yellow light. He said that he looked both ways and saw no oncoming traffic. He also said that his view of oncoming traffic was obscured, and that once he was halfway through his turn, all of a sudden Plaintiff's truck was there and there was a collision. He never said anything about my client's speed.

My guy testified that he was heading straight at about 30 miles per hour. He said that he looked up and saw the green light overhead when he was about 100 feet from the intersection. That's the last thing he remembers until he wakes up in the hospital.

In Maryland, the law is that a driver who enters an intersection on a yellow signal may lawfully proceed through the intersection, even if the light subsequently changes to red. It's also the law that a vehicle making a left turn must yield the right of way to oncoming traffic.

My theory of the case was that using the defendant's admissions, I could prove liability even though my client had no idea what happened. I thought it was likely that the light was the same for both the defendant and my guy since they were going in opposite directions on the same road.

So I subpoenaed a traffic control engineer from Montgomery County government to testify about the timing of the light. He brought a set of timing diagrams with him, and was ready to testify that if the defendant had a yellow light when he entered the intersection, so did my client. I pointed him out to defense counsel before trial, and she spent a few minutes taking to him as well. I let her know that I would be calling him to testify about the timing of the light.

This is the funny part. Then the defense attorney looks at me and says that I really didn't need to subpoena the witness, that she would stipulate the light was the same both ways. I told her its funny how when the witness shows up, everyone wants to stipulate! There's a lesson there, which is that its always more convenient to stipulate to something YOU WERE ALREADY PREPARED TO PROVE. Trust me, it doesn't work the other way around.

I won the case, because if they both entered the intersection, even on a yellow light, the defendant still had a duty to yield the right of way. Our complaint asked for $30,000.00, and the verdict was $27,000.00. That's a good result.

I actually think that the defense would have had a better shot on damages in this case if liability was admitted. For a few reasons. One, counsel could have eliminated lengthy cross-examination on liability and used that time for a detailed cross examination on damages. Two, I think the attempt to avoid fault made the defendant (an otherwise nice young guy) look bad so the court didn't have any pangs of regret making a damages award.

I'm not going be one of those guys who wins every case they blog about. "In my last triumphant victory, I blah, blah, blah…." I hate it when lawyer blogs do that. I'm going to write about the cases that end up in the loss column too. There's always something to be learned from trial experience.

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Posted In: Car Accidents , Personal Injury , Trial Strategy

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On Page Two of today's Maryland section, the Baltimore Sun's Laura Vozzella reports the unusual way the paper learned of the apppointment of the Hon. Mary Ellen Barbera to the Court of Appeals of Maryland. Apparently, Judge Barbera was attending a medical appointment when she was overhead making telephone calls to various people to let them know of her appointment to the state's highest court. It turns out that there was a Baltimore Sun reporter a sitting few seats away.

This is something injury lawyers should keep in mind. You never know who is around to hear what you say. Your potential jurors, witnesses or opposing counsel may hear your comments in elevators, waiting rooms, or courthouse hallways. Remember, discretion is the rule of the day.

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Posted In: Trial Strategy

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Hey, plaintiff’s bar! Wake up! Summary judgment isn’t just for defendants anymore!

Too many of us view the summary judgment process as an obstacle to be overcome, rather than as an effective offensive weapon. Almost since the beginning of time defendants in civil cases have used the summary judgment process as an attempt to weed out claims that have a weak factual or legal basis, or where an affirmative defense may apply.

But to quote one of my favorite rap artists, Ice Cube: “The system is there to bury you. Why can't it be there to save you?” Esquire, January 2003.

I like to file offensive summary judgment motions where appropriate. There are a host of factual situations where such a motion has merit. I have filed these directed at the issue of liability in cases involving rear-end collisions, uninsured/underinsured motorists and the boulevard rule. The Attorney Help Center at www.millerandzois.com has several examples of these types of motions.

Often, the facts of the collision are not in dispute prior to trial, but at trial the defense may attempt to argue contributory negligence, or that under the circumstances that the defendant was not negligent. These claims may have a higher chance of success in front of a jury rather than the judge.

I like to take this option away from the defense whenever I can. Any experienced injury lawyer will tell you that it is in your best interest to narrow what you must prove at trial as much as possible. If summary judgment is granted, it is possible to position your case as a trial on damages only, and that is the name of the game. A ruling in your favor on liability lets you focus all of your efforts on proving damages. Remember, in drafting your proposed order, make sure it is tailored to exactly the relief you want. If you want a trial on damages only, put that in the order!

Plus, it’s always fun to put the shoe on the other foot for a change. I doubt defense counsel enjoy responding to summary judgment motions any more than we do.

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Posted In: Trial Strategy

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I received a motion to compel my client to execute a medical records authorization in a personal injury car accident case earlier this month in Prince George's County.

If you are every faced with this issue, you can click here for my response. Even if you are not in Baltimore, the logic of the motion will apply to most jurisdictions and most states have rules similar to the Maryland Rules on this issue.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents , Trial Strategy

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I always tell people that a big part of what plaintiff’s injury lawyers do is pure theater. Of course you need to have a solid grasp of the law and the procedural rules, but you also need some skill as a storyteller. I think this is most important in addressing the issue of damages.

In serious injury cases, this is paramount. The name of the game is driving home the seriousness of the harm to the factfinder. Pretty much every injury lawyer has their own favorite ways to do this, and there are volumes written about proving and demonstrating damages.

Medical damages are easy. They are what the medical bills say they are. The same goes for past lost wages and to some extent, future lost wages. They are easily proven using a witness from the employer, disability records from the physician, and sometimes by using an economist to calculate future lost wages and/or lost earning capacity.

The tough part is proving non-economic damages, namely pain and suffering and damages for permanency. This can require some creativity. Obviously, it’s easy to get the injury victim to testify about the pain and other difficulties caused by the injury, or the difference between their capabilities both before and after the injury. One disadvantage to this is that such testimony may be seen as self serving.

This is a good time to make use of demonstrative aids. I handled a serious injury case where my client had a severe shoulder injury that resulted in a complete shoulder joint replacement. This poor gentleman ultimately needed to have his complete shoulder replacement revised. All this means is that he had problems with his implant, and had to have a new one put in. I asked him to talk to his doctor, and see if the doctor would save the old replacement joint when he took it out. He got it and gave it to me to save as an exhibit.

Now, this client looked okay when you saw him sitting and moving around. He didn’t seem like someone who had a serious injury. But when you picked up the heavy hunk of metal that replaced his humeral head, you immediately had a new perspective on exactly what this man had gone through. I produced photographs of the implant in discovery, and took it with me to the court-ordered settlement conference to show the judge and defense counsel. I don’t know how much of a difference it made, but I do know that the case settled for a significant amount. I didn’t get to try and use it at trial, but I truly believe that any juror that picked this thing up and held it would instinctively reach up and touch their shoulder immediately afterward, just like I did the first time I held it.

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Posted In: Trial Strategy

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I think one of the tougher things to do in preparing an injury case for litigation can be determining the proper court and ad damnum amount for suit. This usually comes up in cases where the damages are significant enough that the case can’t be filed in the District Court for $10,000.00 or under.

The injury lawyer handling the case then has to decide whether to file in the District Court for $30,000.00, or to seek a higher amount and file in the Circuit Court. This can be a tricky decision, and there are a number of factors that come into play. For example, does the case justify the cost of paying the doctor to testify live at trial or on video? Where the case is too large to be filed for $10,000.00 is too small to justify filing in the Circuit Court, the only option is to file for $30,000.00 in the District Court.

This raises the possibility that the defense may pray a jury trial. In Maryland, defendants have a right to a jury trial in any injury case where the damages claimed are $10,000.00 or more. This means that you are going to wait longer for trial, spend more time conducting discovery, and spend more money getting the case ready.

What can be done about this? Make sure that the defendant has followed the rules. A defendant must file a jury demand within ten days after the time for filing a notice of intention to defend. Md. Rule 3-325. Normally, a notice of intention to defend must be filed within fifteen days after service of the complaint. Md. Rule 3-307. So generally, a timely jury demand must be made within twenty-five days after service of the complaint. If the jury demand is not timely, the right to a jury trial is waived. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 775 A.2d 1218 (2001).

Any motion to strike a jury demand must be filed in the Circuit Court once the record has been transmitted there. Md. Rule 3-325(c). This procedure can help you make sure that the cases you file in the District Court stay there.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Car Accidents , Trial Strategy

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