Baltimore Injury Lawyer Blog

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

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

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

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

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

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

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

I have been away from the blog for a few days because I have been preparing for oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought out by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do, is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

What I see is the same group of doctors being used repeatedly by certain defense attorneys, law firms, and insurance companies. Many of these doctors are very well compensated for giving testimony. I have encountered doctors who have billed as much as a million dollars in one year for doing this type of work.

We want to put this information before the jury to show that the witness is biased in favor of those who are writing his very large paycheck. Often, the witness will not tell us how much they are paid for working as a professional witness, or will greatly under-report their earnings. So we subpoena financial documentation to see if we are being given a straight answer.

The Court of Appeals is expected to address the scope of the documentation we are able to obtain, and the means for obtaining it. The opinion could have broad implications for all Maryland lawyers handling injury cases. I think the oral argument went pretty well. If you are interested and have the free time, you can see the argument here. They are cases No. 60 and 90.

I am not sure how long it will take the court to issue an opinion, but I expect to wait at least a few months. I will post the opinion when it comes out. I am hoping the court will come down on the side of our juries having accurate information about the self-interest of the witnesses presented to them.

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

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

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

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

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

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

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

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

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

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

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?

Did you have a good weekend? Me too. Busy, but good.

I spent the majority of the weekend working on trial preparation for a serious traumatic brain injury case that goes to trial in Mongomery County Circuit Court at the end of the month. I was a big L.A. Law fan in my youth, and I don't remember ever seeing Susan Dey spending the weekend summarizing deposition testimony and medical records. If CSI can make forensic lab tests seem dramatic by playing "science music" in the background, why don't lawyer shows ever show the boring but neccesary stuff that leads up to the fun part?

I got a good break Saturday by getting in touch with my Baltimoron roots at Honfest. I enjoyed watching the crowd, especially the people dressed up as "Hons", and the people not dressed up as "Hons" (and the two were not that easy to tell apart). Apparently Honfest is an irony-free zone. This costuming issue also spawned a detailed discussion of whether a passerby was a man dressed up as a 1950's Baltimore Housewife, or just a poorly outfitted transvestite. A great way to spend a pretty summer afternoon enjoying a cool beverage. I did think it was strange that the only beers for sale were Heineken, Newcastle Brown Ale and Miller Lite. How can you celebrate the glorious quirkiness of the biggest small town in America with no Natty Boh? That ain't no Bawlmer, Hon.

This morning I was back in my old stomping grounds, Baltimore City Circuit Court for a hearing on a defense Motion for Summary Judgment in a slip/fall on ice case. I was before the Hon. Lynn K. Stewart for the motions argument. I had never appeared befpre Judge Stewart before in a civil case, but I had been in her court many times on criminal cases (in another life I ran the civil department at a Baltimore law firm specializing in criminal defense, so in the course of "helping out" I was before Judge Stewart many times). I have always loved being in that court because Judge Stewart is always prepared and on top of the issues, moves the docket along promptly, shows a quick sense of humor and does not suffer fools.

Slip/fall cases are always tough to prove, and have only gotten tougher recently with the Court of Special Appeals' opinion in Allen v. Marriott. The defense contended that I had no proof of notice of the dangerous condition because the area of my client's fall was inspected four times that day and no ice was discovered. I opposed the motion by arguing that since the temperature was never below freezing the day of the fall, the ice had to have been present, but not discovered, during each of the four inspections.

This argument did not change my opinion of this particular judge. She was familiar with all of the issues raised in the parties' motion papers and cut directly to the issue at the heart of the motion. I won the hearing, and my case will now go to trial. Moreover, our 10 a.m. hearing started at 10:03, and I was back in the car on my way to the M&Z mothership in Glen Burnie, Maryland by 10:39. That's how a motions hearing should work!

Continue reading "Monday Thoughts" »

The best way to attack a defense medical witness’ testimony is to conduct an effective cross-examination. One of the ways we do this is by exposing the doctor’s financial interest in acting as a professional witness.

Maryland law allows discovery of how much a professional witness earns from testifying, as well as what percentage of his overall income is earned from working as a paid witness. At Miller & Zois, we don’t take the doctor’s word for it. Our practice is to issue a subpoena for the financial records that document the amounts the DME (Defense Medical Exam) doctor is paid by insurance companies and defense attorneys.

The doctors do not like this very much. Usually the response we receive is a Motion for Protective order from the doctor’s attorney asking that the records not be produced. If the court orders that the financial records be produced, usually that is the last you see of the DME doctor. Doctors will generally refuse to testify before producing these records.

I had a hearing on one of these motions filed by an DME doctor last week in the Circuit Court for Montgomery County. The doctor lost. He was ordered to produce the 1099 and other tax forms showing how much he has been paid in the last two years by insurance companies and defense attorneys. I am waiting to see if he appeals or just bails from the case. Every time this particular doctor has been ordered to produce these records, he has either appealed or withdrawn.

The doctors and the defense bar think we do this because we know that if the records are ordered to be produced the doctor will refuse to testify. Obviously that makes my job as plaintiff’s counsel easier. The truth of the matter is that we subpoena these records because it is the only way to ensure a good cross-examination. Otherwise the witness can make up any number that he thinks won’t make him look bad, or claim not to know the answers at all, because some mysterious “bookkeeper” has that information. I don’t think it’s my fault that these doctors will refuse to testify before they admit the extent to which their opinions are bought and paid for by the insurance industry and the defense bar.

Last night I attended a talk sponsored by the Maryland Association for Justice. The featured speaker was the Hon. H. Patrick Stringer of the Circuit Court for Baltimore County, who was speaking on the issue of professionalism as applied to litigating jury cases.

Judge Stringer worked as a civil defense attorney for 25 years before being appointed to the bench. He is also the first alumni of my alma mater, Calvert Hall College, to be appointed to the Baltimore County Circuit Court.

Much of what Judge Stringer talked about will seem obvious to a competent lawyer, but it is always good to be reminded of certain points:

- Don't interrupt opposing counsel or the court.

- Be clear and concise in oral and written argument.

- Be candid with the court. This includes making sure the cases you cite say what you say they do. If you lie or try to mislead a judge they will never forget, and you might get a letter you don't want from the Attorney Grievance Commission.

- Be prepared. This means showing up with your proposed voir dire and jury instructions ready. I was amazed that there are lawyers who show up for a jury trial without proposed instructions. Maybe it's just me, but I look at the application of law to facts as sort of important in a jury trial.

- Do your research. Judges are not neccessarily experts in the substantive law that applies to your case. Part of your job as an advocate is to arrive ready to educate the court.

- Be courteous. You don't need to litigate every issue that can be litigated. If you can work something out without harming your case, do it.

These are all great tips to keep in mind.

Here in Maryland, we have a procedure that allows a Plaintiff's medical records and bills to be admitted into evidence without the tesimony of a medical provider. This requires service of a list of the records to be offered at least sixty days before trial. This procedure is available in any case filed in the District Court of Maryland, or any case in a Maryland Circuit Court that is filed within the jurisdictional limit of the District Court, presently $30,000.00.

The defense also has the ability to admit a medical report using the same procedure. Often, insurance company lawyers will hire a doctor to review the medical records of the Plaintiff and other documents and then create a "peer review"report. Usually this report says something like the plaintiff treated for an unreasonable period of time, the palintiff's injuries are less severe than claimed, or the medical bills are unneccessary, unreasonable, or not related to the accident.

In cases in the District Court, these reports are easy to address because judges are used to seeing them and are usually familiar with how they are created. It gets trickier when the case is to be tried before a jury (usually when the defense requests a jury trial). Here are some tips for attacking these kinds of reports in jury trials.

I ignore these reports in opening. I never mention these reports in opening statements. What if the defense attorney doesn't put it into evidence? I wasted my time. Plus, the jury will never see this report until they go into the jury room to deliberate, so there isn't any real reason to address it at the beginning of the trial.

The best time to address such a report is in rebuttal argument to the jury. This is when I have already made my primary closing argument, and the defense attorney has given his closing using the report to attack my damages case. I then have an opportunity to give rebuttal argument. What's great about this is that you can really go after the report, and the defense doesn't get another opportunity to contradict anything I say.

The first thing I do is read the jury the address where the report was sent. This is always the defense attorney's law firm, and often it is directed to the attorney personally. Then I read the first sentence which says something like "thank you for the chance to review the medical records on [Plaintiff]." Then I point out that the next sentence says the doctor reviewed the medical records that the defense attorney sent him. I tell the jury this means that the defense attorney picked out a doctor, who then reviewed the records that the defense attorney selected and sent to the doctor.

Sometimes these records include photos of the damage to the vehicles. When this happens I tell the jury I hurt my back a few years ago moving a bed, went to the doctor, and wouldn't you know, my doctor never asked to see a picture of the bed I was moving even though he was sure that was how I got hurt.

Also make sure that he defense doctor is accurate in his review of the records. In my last trial, the defense doctor said the client had two MRI scans that were normal, and went on to say that the MRI's were unneccesary. Problem was, those MRI's both showed bulging discs at multiple levels.

I also point out that the doctor doing the records review never examined or treated the plaintiff, and that the defense is asking the jury to accept his opinion instead of that of the treating doctors.

In that last trial the last thing I did was read the jury the last two sentences of the report, which state: "I appreciate the opportunity to evaluate these files. If I can be of additional assitance, do not hesitate to contact me." Then I told the jury this means "thank you for hiring me to do this work for you, and please call me if you would like me to do some more work for you."

I told the jury that people don't get a lot of repeat business if they are not providing the customer with what they want.

The key is that in a case like this you can expose the report for what it is- biased and not credible, and the defense never gets a chance to counter your argument.