Baltimore Injury Lawyer Blog

It is generally a good thing when a law firm issues a press release and as a result gets mentioned in the newspaper. I mean, that's the idea right? A press release is designed to garner attention. But it's not nearly as good if the attention consists of the reporter making fun of the content of the release and the law firm's motive for issuing the release in the first place.

Here, the Baltimore Sun's Jay Hancock takes aim at a local law firm with a blog post titled "Bowie & Jensen: Look at us! We're suing Ne-Yo!"

Hancock's primary target is a paragraph in the release listing all of the various awards and accomplishments of the defendant in the suit, whom I gather is a pretty well-known R&B singer. Here's what Hancock thinks: "Bowie & Jensen has put out a news release that's less about the merits of the case and a lot more about the fact that they're suing a famous musician and want you to know it."

Hancock plays it fair by contacting the author of the release for comment. But before revealing the author's explanation, Hancock comes off the top rope with a foreign object: "Karen McGagh, who wrote the press release for Bowie & Jensen, disavows any and all intention to draw cheap attention to the firm by seeming to go googy-eyed over a rap-star legal opponent."

At this point, I think it's fair to say this release has not had the intended effect, unless you are of the school of thought that any publicity is good publicity.

As I discussed here, law firms need to be very careful when issuing any kind of press release. The key idea is that it needs to always be about the client and the case. After reading the whole news release, I think that is what they were going for. The error was in the execution. I'm not a big fan of pre-trial press releases. Win the case. Then issue a press release. But if you do one of these pre-trial, its not a bad idea to make it about your client, rather than how famous the guy you are suing is.

When a law firm's news release results in the need to deny trying "to draw cheap attention to the firm," maybe it is better to refrain from commenting until a favorable result is achieved.

On the other hand, this news release seems to have also resulted in much more favorable treatment from the Maryland Daily Record. There, Rachel Pryzgoda turns in a pretty even-handed news item about the case with quotes from counsel for both sides, without making fun of either. I guess no two reporters are alike.

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.

I often wonder what (or if) other lawyers are thinking. Here is an opinion from the Court of Appeals of Maryland reviewing the rules aplicable to holding a lawyer in direct criminal contempt of court.

This arises out of a criminal case for driving without a license. We don't handle criminal cases at Miller & Zois, but the lesson to be learned here doesn't have much to do with the facts of the underlying case. It is enough to observe that the defense attorney got into a disagreement wit the the trial judge about a procedural aspect of the case's disposition. He protected his record about the disagreement, and was overruled. Then, the defense lawyer just walked out before the judge had even finished ruling. The court issued an order holding the lawyer in contempt.

The lawyer appealed to the Circuit Court, which remanded the case back to the District Court because the trial judge's initial order of contempt did not comply with the fairly complicated and little-known procedural rules governing the imposition of sanctions for direct criminal contempt. The District Court judge then entered a revised order clarifying the original one, and still holding the lawyer in contempt. The lawyer appealed again to the Circuit Court, which this time affirmed the contempt order. The lawyer then appealed again, with the case ultimatley winding up in the Court of Appeals.

The Court of Appeals overruled the trial court because the court was allowed to enter a revised order of contempt on remand from the circuit court. The appellate court said basically, that a trial court only gets one chance to get a direct crimnal contempt right, and that if not, the contempt order must be vacated.

There was a vigorous three-judge dissent from Judges Murphy, Battaglia and Barbera. The basis for the dissent was basically that the courts have a strong enough interest in protecting the orderly administration of justice that they ought not to be prevented from entering and enforcing a contempt order just because of a procedural defect in the order that could be remedied with a revised order. I think the killer factor for the dissenting judges was that this lawyer disrespectfully walked out of the room while the judge was talking.

I agree with the dissent. I don't care what the reason is. You can't just decide you don't like a judge's ruling and walk out. That's disrespectful in any setting, even more so in the context of an officer of the court interfering with the administration of justice. Plus, I don't see what it does for your client in terms of advocacy. The way to handle an adverse ruling, even (or especially) one you vehemently disagree with, is to make your objection, protect your record, and go on to advocate for your client as best you can. If the trial judge was wrong, you can correct it on appeal. Allowing lawyers to do what happened here fosters disrespect for the judicial system and undermines public confidence in the law and the legal profession.

I think the Court of Appeals made the wrong move in not allowing this conduct to be sanctioned as contempt based on a procedural defect in the trial court's original order. This illustrates why I would not be a good choice as a trial judge. Because if it were me, and a lawyer walked out of my courtroom while I was talking to him, he would be appealing to the Court of Appeals from his cell at the detention center.

I wonder if this is going to wind up as an Attorney Grievance matter, regardless of the ruling in the contempt issue. I would think so, because the ethical rules (for example, MLRPC 3.5(a)(1), which prohibits a lawyer engaging in conduct intended to disrupt a tribunal) apply regardless of the availablility of a criminal sanction for contempt. I will be shocked if the Court of Appeals just lets this slide.

Today the Court of Appeals of Maryland issued an opinion addressing the extent to which expert witnesses who are retained solely for litigation may be forced to produce documentation of the amounts they earn providing expert witness services.

There are actually two cases, which were consolidated on appeal. The first is Falik v. Hornage, No. 60; the second is Falik v. Holthus, No. 90. They are both Miller & Zois cases. Rod Gaston was trial counsel in Hornage; I am trial counsel in Holthus, and I was privileged to brief and argue both cases in the appellate court.

In each of these unrelated cases, the defense retained the same neurosurgeon as an expert witness. Insurance companies and defense attorneys tend to use the same doctors as expert witnesses over and over. Because these witnesses are being paid, they may have an economic interest in continuing to serve as an expert witness, or they may have economic ties to particular lawyers and insurance companies. Obviously, an economic interest in the litigation may lead the witness to have a bias in favor of their employer, whether conscious or not.

Economic bias of this type is fair game for cross-examination in discovery and at trial. But where the problem comes in is in finding out whether the witness has told the truth. I have had doctors say they do not know what they make in a year for serving as an expert witness, or that they do not know how many times they have been retained by a particular lawyer, law firm, or insurance carrier. Or they will give an answer, but it sounds suspiciously low. I even had one doctor tell me that he did not know what he was being paid in the case he was testifying in, and that he could not tell me who would know.

Continue reading "Appellate Opinion On Expert Witness Financial Bias" »

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" »

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.

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.

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?

The Baltimore Sun's Peter Hermann reports about a criminal case in Baltimore City that raises questions about juror disclosure and impartiality.

Apparently, this particular case ended in a mistrial because one juror was holding out for an acquittal. After the mistrial was declared, prosecutors learned that the holdout juror was employed as a lawyer by the Office of the Public Defender.

The prosecutors are mad because this juror merely listed her occupation as "attorney." They think she had some sort of obligation to disclose who she worked for during the jury selection process. Apparently, she was new to the city public defender's office, so she truthfully stated that she did not know any of the parties or their attoneys, and she was unaware that one of the co-defenants was represented by a different public defender, whom she also did not know.

The article interviews another juror, W. Stanwood Whiting, who also is an attorney. Like the public defender, he also truthfully listed his occupation as "attorney" without elaborating on the type of work he does. He did not volunteer more, stating "That's all they asked."

I don't have any problem with what this juror did. Every time I have been called for jury duty, I have listed my occupation as "attorney." All the lawyers in my office I have asked about this do the same thing.

Jury selection is part of the advocacy priocess. If the prosecutors wanted to know if any jurors were criminal defense attorneys or employees of the Office Of The Public Defender, they had an opportunity to request the court to ask that question in voir dire. If the court had refused to ask the question, there would be grounds for an appeal. But here, nobody asked.

That's on the lawyers involved in the case. That is a good reason that things like voir dire questions, jury instructions and verdict sheets need to be crafted individually based on the needs of each case, rather than just a boilerplate form printed off of the computer. I only do personal injury litigation, but you can be sure that the voir dire questions I submit to the court ask if anyone on the jury panel is employed by an insurance company. If you are concerned about people who work for the other side being on your jury, put it in your voir dire.

This juror truthfully stated her occupation, and truthfully answered the questions put to her. Assuming she truthfully said she could hear the case impartially, I don't think she did anything wrong. I don't see any obligation for her to do the prosecutors' jobs for them by presuming they would like to know who she works for and volunteering it. If that fact is so important to them, why didn't they ask?

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.

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.

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.

I just finished a one-day jury trial in Anne Arundel County Circuit Court, and I got killed. I am forcing myself to blog about this because I think it is dishonest for attorney bloggers to only write about the wins. Nobody wins all of the time.

This outcome was surprising to me for two reasons. First, I had what I considered to be a great case for the kind of case it was. Second, I had a very credible client and damages witness.

This was a damages case. The defendant driver was on his way home from work, and switched lanes to get oput from behind a box truck. Without seeing what was in the lane he changed into. He rear-ended my client who was stopped for a red light, and pushed her into the vehicle in front of her. Good photos of the vehicle damage.

She had bruised ribs and a sprained left hip. Went to the hospital by ambulance, and followed up with a private doctor and physical therapist. Ten weeks of treatment overall, no fractures, no permanency. I also thought the non-economic damages claim was pretty compelling. The client was on her way to her oldest daughter's wedding dress fitting and missed it because of the accident, and was in pain for the bridal shower the next weekend and the wedding two weeks later.

Economic damages were $168.00 car rental. The medical bills were $5125.00, and tehre was a $1400.00 lost wage claim for two weeks off of work. I liked this case a lot. The jury gave the rental bill, the medicals, and $2100.00 for non-economic damages. Total verdict $7,123.00. That is less than the last settlement offer of $10k. I was shocked.

My client was a very nice, college educated African-American lady who works as a computer technician, and the damages witness was her long-time friend, another African-American lady who works at the Johns Hopkins Applied Physics Lab.

I wonder whether race had a subconscious effect on my all-white jury. I don't think anyone would intentionally be influenced by race as a juror, but I always wonder in these situations if there is a more subtle bias that affects the outcome. I wonder if any studies have been done about this? I will have to look to see if I can learn more about the topic.

I also wonder how much the economy has been affecting jury verdicts. I think it is possible that jurors are more reluctant to make damages awards because so many people are facing hard times with no help available. Is a juror who just had a family member laid off, and who is missing a day of work to be on jury duty going to be disposed to making a good damages award? I don't think so.

Obviously, I hate to lose. This is when I remind myself that Ted Williams is generally regarded as the greatest hitter in the history of professional baseball. He is in the Hall of Fame. He also failed to get a hit 60% of the time.

I think it is normal for professionals in any field to become accustomed to the processes and procedures we deal with every day. I think that phenomenon is particularly pronounced in the legal field. Most people have extremely limited experience with the workings of the court system in general, and with civil litigation in particular. The average citizen’s legal experience is most likely limited to serving jury duty, or appearing as a defendant in traffic court.

For example, I have often had clients seem surprised that I am usually quite friendly with the attorney representing the defendant in their personal injury case. To me, most of these lawyers are colleagues, law school classmates, or simply fellow professionals that I have gotten to know across the aisle at trials. They seem to believe that adversarial equates to hostile. This issue often arises in clients’ frustration with the pace (extremely slow) of litigation. People also seem to believe that the insurance company or defense attorney has a particular axe to grind against them, where I see that as business as usual.

This is an overly long intro to a blog that I have found to be great reading. There is an emergency department doctor who was sued for medical malpractice and is blogging about the course of his own trial (after the fact).

Continue reading "What Is It Like To get Sued?" »

I recently blogged about whether there is value to the client in being first to file a lawsuit. I was talking specifically about the litigation that has already commenced as a result of the recent DC Metro train crash.

A few points have been raised by other folks that I think are interesting. First- apparently there is a very remote likelihood of settment in any case involving WMATA (Washington Metropolitan Area Transit Authority). Because of this, many attorneys with experience in litigating against WMATA think filing suit quickly is the best way to make a recovery for the client without delay.

I get that, kind of. Sounds like litigating against MAIF. There's no point in negotiating, so many think it is best to just file.

Others have pointed out that in a case like this where there is a mass injury with many potential lawsuit filings, there is a good likelihood that the cases will be consolidated, so filing first may increase the chance that the early filers will have a significant role in controlling the course of the litigation.

Maybe I just have more of a fear of playing catch-up than other attorneys. The points above seem valid, but I would be interested in the "early filers" views on what the disadvantage to the client is as a result of waiting, other than the obvious time delay.

Unless you live somewhere there is no tv, radio, or internet (which makes you seeing this unlikely), you know there was a big train crash on the Washington, D.C. Metro last week.

This was a bad accident that involving several deaths and many more injuries. Whenever something like this happens, I think it is expected that there will eventually be litigation. The litigation about this accident has already started. Train accident: June 22, 2009 at 5:02 p.m. First lawsuit filed: June 24, 2009. Two days later. The legal system generally moves like global climate change- slowly and inexorably. A lawsuit being filed two days after the injury is very, very fast.

Maryland has a three-year statute of limitations. This means that an injury lawsuit must be filed within three years of the date of the injury or it is forever barred. In this case, the victim is fifteen. Under Maryland's SOL, his lawsuit would need to be filed within three years of his eighteenth birthday.

My practice on injury claims is to avoid filing a lawsuit until the client is at Maximum Medical Improvement. All this means is that the injured person has recovered fully, or has reached the point where further medical intervention would not be helpful. The reason is that I want to have a full and complete picture of the client's damages before filing suit. This helps in many ways, such as in selecting and identifying the proper experts, determining the amount of damages to be sought, and allowing pre-suit settlement negotiations. It also helps to minimize playing catch-up, like trying to collect medical records and bills for a client who is still in treatment while simultaneously preparing the case for trial.

I don't know the attorneys representing the plaintiffs who have already filed suit. I'm not saying they did something wrong- there are a lot of "right ways" to handle a personal injury case. Sometimes cases are filed early because that is what the client wants. I am sure there are other reasons as well. I just usually take the opposite approach.

I am curious as to what the advantage to the client is as a result of filing so quickly. Obviously, starting the process sooner means completing it sooner. Other than that time savings, what does such an aggressive stance get the client? Maybe the publicity translates into a stronger negotiating position for settlement?