Baltimore Injury Lawyer Blog

In Part I, I talked about how useful a set of portable office supplies can be for staying organized at trial. But that is just a small part of the required level of organization. In this installment, I discuss another vital part of my overall organizational system- the trial box. Keep in mind that I am describing how I organize the typical 2-3 day jury trial. Longer, more complex trials travel in a larger set of boxes that are organized following the same basic outline.

I have a portable file box with wheels that all of my paper materials go in. This is a collapsible plastic box the size of a milk crate with wheels and a handle- the kind you see sales reps and business “road warriors” use. I organize it from front to back using file folders and large Redweld-style folders. Less important or less frequently used items go in the back, more important or often-used items are toward the front.

Starting at the back and moving forward, this is what it contains:

•The “hard” file for the case. I include this “just in case” although I rarely use it for the trial.

•The bound “pleadings binders” containing all the pleadings filed in the case. Each of the pleadings is indexed and tabbed in chronological order for quick reference.

•A folder for defense experts. This has deposition and video transcripts, extra copies of their reports, exhibits, and cross-examination material.

•A similar folder for plaintiff’s experts, containing the same things. If there is a video deposition to be played at trial, I attach it to the transcript with a rubber band or a binder clip, so that it can’t easily be lost.

•A folder (or folders) containing all of the exhibits I intend to admit into evidence, with courtesy copies for defense counsel.

•A folder containing all motions in limine, responses, and copies of the important cases referenced.

•A folder with my requested voir dire, draft jury instructions and verdict sheet. This includes an original for the court and a courtesy copy for defense counsel. None for me- that goes in my trial binder. I clip all three together, and label the ones for the court and counsel. Once I receive the defense versions of these, they go in this folder as well. That way, later in the trial when the court wants to go over instructions on short notice, I can lay my hands on the defense version quickly.

•The “medicals binder” containing a tabbed and indexed set of the Plaintiff’s medical records and bills (I will discuss this in detail in a later post).

•My trial binder (also to be discussed later). Often this goes on top, since I use it the most and it sometimes won’t fit front to back.

•Volume I of the Maryland Rules. This contains the rules for evidence and civil procedure. In my box, it goes on the right-hand side, since the box is wider than an 11-inch folder, so there is extra room over there. I can’t believe that many (if not most) lawyers go to trial without this.

This setup lets me have most of what I need to try the case available at a moment’s notice, in a way that is easy to transport. Next in this series, I will be discussing one of the most important items needed for trial- the trial binder.

When it comes to being hurt in an accident, we all think that it will never happen to us. It's always the "other guy." Nobody wants to prepare for when the unthinkable happens.

But if you are seriously injured or incapacitated in an accident, you want to make sure that the authorities are able to quickly contact your loved ones. Nobody wants to sit alone in a hospital, or have a stranger making medical decisions because the authorities didn't know who to notify. Now the Maryland Motor Vehicle Administration allows you to add three emergency contacts to your personal information using your driver's license number.

Here is the MVA's website. You will want to find "Do It Now Online" on the right-hand side, and click "Emergency Contacts." Then continue to select "Emergency Contacts" in the next menu, and proceed from there. Hopefully you will never need it, but it only takes a few minutes to get a little more piece of mind.

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

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

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

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

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

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

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

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

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

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

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

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

Did Dr. X reach a diagnosis?

What was his diagnosis?

Do you agree with that diagnosis?

Why not?

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

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

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

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

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

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

So I asked him this set of questions:

You are here in your role as a neurologist?

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

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

You are a member of the American Academy of Neurology?

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

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

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

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

Do you agree with that statement?

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

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

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

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

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

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

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

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

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

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

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

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

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

So be creative, and have fun!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’m not holding my breath, though.

Law blogs are full of "how to's" on deposition techniques. Do a quick search and you will find tons of hints of all kinds. You can find checklists, tips for client preparation or articles on effectively using exhibits. I've written some things like that myself. But today I have a quick lesson in what not to do when defending a deposition, and how to handle it when it happens.

This is from a deposition I recently took of a defendant driver in a car accident case that is pending in federal district court (I have redacted all of the names but my own):

Q. And are you contending in this lawsuit that Mr. Plaintiff is a faker?

A. Again, that is not something personally I have any evidence to suggest otherwise. I think that will come out with testimony and through this fact-finding.

Q. So is that yes, no, or I don't know?

Defense Counsel: I object. The question's been answered. Go on to the next question. That's a
dumb question.

Q. (By Mr. Bratt) I'm not sure I understand your answer, Mr. Defendant. Are you making a contention that Mr. Plaintiff is a faker in this case?

A. I am not making that contention.

Now, there are a couple of lessons here.

First, this is not how to object at a deposition. Can you spot any legally cognizable objections in what defense counsel said? Arguably, I can spot one- "asked and answered." Although I don't agree that it is a meritorious objection, at least it sounds like something that could conceivably have a legal basis. The next thing defense counsel said- "Go on to the next question", isn't an objection at all. It's just an attempt to bully and obstruct my questioning. And finally, the last part: "That's a dumb question." Really? I don't know what this is or what it was supposed to accomplish. But in any event, it isn't an objection either.

The lawyer defending this deposition (a partner at the Baltimore office of a national law firm) should have known better. What he's doing doesn't advance his client's interest or help defend the case. And let's face it, it makes him look kind of silly. Especially if someone were to put it in a blog post and make fun of him on the internet. Not that I would do that kind of thing. But you do see things like this from time to time, usually from a senior lawyer trying to bully a less experienced lawyer into accepting a non-responsive answer from the deponent.

Lesson two here is what to do when opposing counsel tries to pull something like this. There is a school of thought that believes in fighting fire with fire. Under this approach I would have acted all angry and offended, and said something like "This is my deposition, I decide when to move along and I will continue my questions until I get a responsive answer. Make your objection and then be quiet."

As you can see, that's not how I roll. I see no value in getting into arguments with opposing counsel at depositions. I just ignored the guy and kept with my examination, ultimately getting a responsive answer. And I would have kept at it until I got a responsive answer, or he instructed the witness not to answer. Instead of a useless argument with counsel, I got a responsive answer to my question.

I think I know what was really going on. This lawyer didn't know me, and we had never had a case together before. So near the beginning of the deposition, he took his shot to see if he could push me around. It didn't work, and I don't think he said anything else during the rest of the deposition.

So if this happens to you, stick to your guns and be peristent. Eventually, you will get one of two things: a responsive answer, or a transcript showing a witness being overtly evasive with the assistance of counsel. The former is what you wanted all along, and the latter has a variety of uses at trial, especially if it is on video.

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

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

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

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

You specialize in spine surgery, correct?

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

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

When was the last time you performed that operation?

You have read Dr. X's deposition?

You disagree with his opinions?

Do you know Dr. X professionally?

What does he do?

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

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

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

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

Today, I will be testifying before the Maryland General Assembly's House Environmental Matters Committee in favor of HB125. This bill will require the MVA to establish regulations requiring self insureds to provide the name, address, self-insurance certificate number, and claims information for the self-insurer at the scene of accidents. A hearing before a committee is one of the first steps in a bill becoming a law. Remember the Schoolhouse Rocks? Even though this is a state bill instead of a federal one, check out "I'm Just a Bill" for a basic description of the process:

Most vehicles on the road are covered by standard insurance policies issued by insurance companies everyone has heard of. State Farm, Allstate, Nationwide, Progressive, etc. Maryland law currently requires drivers involved in an accident to give the other party his name, address, vehicle registration number and insurance information. This is usually enough for the party who was not at fault to make a claim and have the vehicle damage repaired and any injuries addressed. If there is a police report, this information is included.

Where the system breaks down is in the case of a self-insured entity. Maryland law permits motorists to be self-insured if they meet certain requirements. Often, these are private buses, fleet vehicles for large corporations, or taxicabs. When a driver or owner of a vehicle is self-insured, it can be difficult to obtain the information needed to make a claim. The police report will just say "Self" in the block for insurance. Even an MVA check leads back to the owner's address. Then you have to try and get the information on how to make a claim directly from the driver or owner. Often, they "forget" to respond to your letters or calls. A cynical man might argue that this is because they have no interest in you being able to make a claim, because as a self-insured, it is their money that gets paid out.

HB 125 is a good thing not only for lawyers handling car and truck accident cases, but for all consumers. It will let the average motorist who is in a fender-bender have the information they need to get the damage to their car fixed and paid for. For those of us in the legal field, it will let us make claims more quickly and easily, and hopefully make it more likely that claims will be resolved without filing a lawsuit. I have had cases where I have had to file a lawsuit simply because I was completely unable to find claims information. If it passes, HB 125 will streamline the process for everyone involved.

I am representing a client who has been deaf from birth. Unfortunately, he also suffers from a brain injury. The combination of the two makes communicating with him challenging under the best of circumstances.

Most of us are familiar with the process of using an American Sign Language (ASL) interpreter to communicate with deaf clients. However, I just became aware of another sort of interpreter that is invaluable for communicating with deaf clients who also have diminished or different communication skills. This is a Certified Deaf Interpreter, or CDI.

ASL interpeters are hearing individuals who translate the spoken word into sign language. However, they are not able to communicate with deaf people as effectively as another deaf person can. This is because every person signs differently, and because sign is often augmented by gestures and expressions. A CDI is another deaf person who is certified as an interpreter. They assist the deaf client in understanding and responding to the translation of the ASL interpeter. This is particularly helpful for people who have communication difficulties beyond deafness, like a diminished mental capacity.

Here's how it works. A question is spoken. The ASL interpeter translates the question into sign. The CDI signs the question again to the deaf client, and then takes the client's signed answer and communicates it in sign to the ASL interpreter. The ASL interpereter then translates the answer into speech for the hearing participants.

It sounds cumbersome, and it is. It certainly adds to the time required for a deposition, for example. But having done depositions like this both with and without a CDI, I can say that for the right client, it makes a huge difference in the ability to communicate effectively.

Attorneys should also know that these kinds of reasonable accomodations are required by the ADA. Not only that, but the cost of these services cannot be passed along to the client as a case expense. My experience is that the deaf are generally aware of their rights, so you should not be surpised when you receive these sorts of requests. Afterwards, you will be glad you complied. It really makes a material difference in the quality of the representation.

Yesterday I spent some time doing a little year-end trimming of my internet favorites list.

Like most people, I keep a fairly extensive favorites list of websites that I use (or think I will). Some sites turn out to be extremely valuable, and I use them all the time. others seem promising, but end up only being sporadically useful. I make cuts at the end of the year, taking sites that are rarely used off the list.

Here are some sites that made it onto my keeper list:

Maryland Board of Physicians: This is an excellent resource for checking the license history of treating physicians and potential experts on both sides. If a doctor you are relying on has a history of licensure issues, you need to know.

Maryland Judiciary: One of the best things about this site is that new appellate opinions are posted the day they are issued. Invaluable for staying abreast of developing areas of the law.

Maryland Judiciary Case Search: Free searching of electronic court records covering all of Maryland's district and circuit courts. I use this as a quick and dirty background check. I run literally every person who will potentially take the stand in every one of my cases. If a witness has convictions that may be admissible for impeachment under Md. Rule 5-609, it is almost malpractice to not know ahead of time. You'd be amazed at how often I find good stuff on here.

Mapquest: I use the directions feature to compute approximate travel times. This can be very useful in trucking cases, where it may matter how far a driver traveled, in what amount of time, and whether driving time and break regulations were followed.

Vinelink and the Federal Bureau of Prisons: Both of these sites can be useful for attempting service of process. You can use them to determine if an individual is an inmate in a state or federal correctional facility.

Service Members Civil Relief Act: This site allows you to determine whether an individual is serving on active duty in the armed forces. Very useful for service of process, or for execution of a "non-military affidavit" in cases involving a request for default.

Maryland SDAT and DC Registered Organization Search: Great for finding the Resident Agent of Corporate entities.

Federal Motor Carrier Safety Adminsitration Rules & Regulations: This is great for trucking accident cases. This site features an indexed, searchable database of all of the safety regulations that commercial drivers and motor carriers are required to follow (and often don't). An outstanding source of cross-examination material for drivers and corporate representatives.

I'm happy to announce that I have been named to the 2011 Maryland Super Lawyers Rising Stars list in two practice areas: Appellate and Personal Injury- General. Inclusion in the list is limited to less than 2.5% of the practicing attorneys in Maryland, and is determined by a fairly rigorous review process.

Most of our lawyers have been included on this list at various points since it began. So it is only natural that we have had discussions around the office about the value of this honor and what it means. Ron Miller blogged about this last year, when all of Miller & Zois' lawyers were named.

Does it mean the lawyers on the list are better than those who are not? No. Does it mean that if you are picking a lawyer to handle your case, you should always pick a lawyer from this list? No. There are a lot of different lawyers who excel at different kinds of cases. I personally know some outstanding lawyers who were not included. But are these kinds of lists and awards something that should be considered in picking a lawyer? Yes, along with many other factors, such as experience, trial experience and results, and substantive knowledge in particular practice areas.

At the end of the day, though, an honor like this is a good thing and I am happy to have received it. It is rewarding to have been found worthy by others in the legal community. Feel free to check it out below:

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

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

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

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

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

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

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

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

Hello, everybody! In case you noticed my absence over the last few weeks, I was away getting married and honeymooning. Now I am back at the blog, albeit a little tired from watching late election results last night.

But as they say, all politics is local. In Maryland, some jurisdictions charge for ambulance service, while others do not. For example, Baltimore City charges a $410 fee for ambulance service, while Baltimore County charges nothing.

In May, the Montgomery County Council approved a $400 fee for ambulance service to assist with a 13 million dollar budget gap. After a trip to the Court of Appeals of Maryland and back, opponents of the fee were able to get the issue on the general election ballot for a referendum. Yesterday, Montgomery County residents voted against allowing the county to continue to charge fees for ambulance service.

From a personal injury lawyer's perspective, this is probably a good thing for injury victims. Although there an argument that charging a fee for ambulance service would lead to higher damages claims and possibly higher recoveries, I think that ignores the big picture. Having no fee for ambulance service helps victims in many ways. First, people are more likely to seek the care they need if they are not concerned about being billed. Moreover, clients will be able to use Personal Injury Protection funds to replace lost wages or pay for other necessary medical care. Where health insurance pays for medical treatment, the lien to be repaid will be $400 smaller. Overall, this will help victims survive until they can resolve their claims, and will let them keep more of their recovery. A good thing.

Plus, why should the county charge for emergency services we pay taxes for anyway? Kudos to the citizens of Montgomery County for rejecting a new fee that would do the most harm to the least fortunate.

In theory, human life is priceless. Under most belief systems, each human life is uniquely created by God and has an intrinsic value that cannot be measured in Man's terms.

But when you are talking about a death caused by a negligent driver, often the value of a human life ends up being the limit of the insurance coverage. For example, take a look at this Baltimore Sun article about a settlement of a lawsuit for wrongful death caused by an accident on the Bay Bridge in the summer of 2008. This case got tons of local media coverage when it happened. It was alleged that the defendant was driving with a blood alcohol content of .03 when she crossed into oncoming traffic, causing the death of a truck driver when he swerved to avoid her and went through a traffic barrier and into the Chesapeake Bay.

The value of this truck driver to his family? Immeasurable. The recovery for his loss? $100,000. The limit of the available insurance coverage. And this defendant had five times as much insurance as the State of Maryland requires. Currently, Maryland drivers are only required to carry $20,000 in liability coverage, which will soon increase to $30,000. I have seen death cases where the only recovery is $20,000. Explaining this to grieving family members is an experience that I wish I had never had.

So please- buy enough coverage to protect yourself and your family. There is no amount that can make up for losing a loved one, but a tragedy like this one can only be made worse when there are inadequate resources to replace the income that may be a family's sole support. Be smart- don't depend on the other guy.

I am involved in a court case in Prince George's County where I am representing a lady who alleges she was injured when a tractor-trailer struck her car.

We live in an increasingly technological age. One consequence of this is that trucking companies often equip their vehicles with a "black box" that records vehicle data, such as speed, location, movement, etc. They do this to promote efficiency in terms of scheduling, cargo tracking, route determinations, etc. To some extent it is also probably done to make sure the drivers are where they are supposed to be, doing what they are supposed to be doing, while they are out on the road.

Many lawyers think a trucking accident case is just a plain ol' car accident case on steroids. Wrong. This an example. Experienced truck accident lawyers, like me, know to ask for things like vehicle data recorder information in discovery requests. I do this in all of my truck accident cases, like the one in P.G. County I have going on now.

Well, I got a response back to my request. Here it is, verbatim:

OBJECTION. This Request is overly broad, unduly burdensome and seeks to discover information not reasonably calculated to lead to the discovery of admissible evidence.

Apparently, I had a liquid lunch at the local bar the day I wrote my request. Who would think that information about speed, stopping, vehicle load and driving time would be relevant to figuring out if a truck driver was negligent? Oh, right. EVERYONE. This response is about as ridiculous as arguing that a videotape of the accident is irrelevant.

That is, everyone except this defense lawyer with about 35 years of experience. What his response really means is "you are only getting this if you make me." The root cause of this phenomenon is lazy plaintiffs' lawyers who will not take the time to get this information the hard way. Obstructionist defense lawyers get away with this all the time because the plaintiff's lawyer doesn't read the discovery responses closely or at all until 2 weeks before trial.

Sorry dude, you picked the wrong guy. Red flag, meet bull. The only way I won't get it is if a judge denies my motion to compel it. Which I think unlikely, since there is nothing more relevant to a truck crash than vehicle movement data.

"The only thing neccesary for the triumph of evil is for good men to do nothing." Edmund Burke, (1729-1797)

I am working on a few cases involving corporate defendants of various sizes. One of the most effective discovery devices around for these kinds of cases is the corporate representative deposition.

Md. Rule 2-412 allows a corporation or other organization to be deposed through a designated representative. The way it works, is that the party seeking the deposition sends a notice, where they "describe with reasonable particularity the matters on which examination is requested." Then the corporation must designate one or more people who will be prepared to testify regarding those matters "known or reasonably available" to the corporation.

This is a powerful discovery tool because the answers given by the corporation's deignated representative are binding. The entity is under an obligation to have the designee review the areas upon which the examination is requested, and be prepared to give answers that will be binding. There is law saying that once a designee testifies, the corporation may not later present affidavits or other evidence in contradiction to the answers given by the designee. Under some circumstances, even an "I don't know" can be binding on the corporation when said by its designee.

There is a great resource for preparing for these kinds of depositions produced by the National Institute for Trial Advocacy called The Effective Deposition. I started out trying cases as the only lawyer in charge of the civil docket for a small Baltimore firm concentrating in serious criminal defense. I worked with two outstanding criminal lawyers who were a great resource on trying cases generally, but not so much on civil cases. This means that to a large degree, I am self-taught, and early on The Effective Deposition was the main resource I used for preparing for depositions of all types. My subsequent experience has taught me that the advice in the book is right on the money.

I didn't include cites, but all of the statements I made above are supported by either Maryland case law, or federal law interpreting the corresponding federal rule. Because the Maryland Rules are largely patterned on the federal rules, in the absence of controlling authority, Maryland courts look to interpretation of the federal rule for guidance.

This is true for all of the Maryland Rules, not just those pertaining to depositions. This is a very useful rule to know. If you deal regularly with procedural issues in discovery, you know that there are often not a lot of Maryland appellate cases on point. First, discovery issues are not appealable until the end of the case, so if you get a verdict it may never be appealed. Second, by then the economic realities of the case may not allow for an appeal. Finally, even if there is an appellate issue and there is the will and economic ability to appeal, the standard of review that will be applied is the very deferential "abuse of discretion" standard.

However, there is a very large body of law interpreting the federal rules, because federal trial court decisions are often reported. These may be found either in F.Supp., or in the Federal Rules Decisions. So when you have a thorny legal issue involving Maryland pretrial procedure, don't forget that federal law may be very valuable in providing guidance. This is particularly true when you can locate and rely upon opinions authored by well-known local federal judges. I have found that Maryland trial court judges will place great weight on evidence and discovery opinions decided by Hon. Paul W. Grimm, for example.

So once you are prepared on the strategic and factual considerations involved, and know where to look for the law if you have a problem, the corporate representative deposition is a great way to learn facts and get binding answers in cases involving corporate defendants. Have fun!

HB 825 is a bill being considered by the Maryland House of Representatives this morning. What the bill does is raise Maryland’s mandatory minimum auto insurance requirements. As I write this, I am listening to the debate on the House floor.

Currently, Maryland requires drivers to purchase insurance coverage with limits of at least $20,000 per person and $40,000 per incident. This has been the requirement since 1972, when the mandatory insurance law was passed. That amount has never been changed.

HB 825 would raise the minimum limits to $30,000 per person or $60,000 per incident.
This is a change that is well overdue.

The bill has a positive fiscal note, which includes sample premium increases for drivers insured by the Maryland Automobile Insurance Fund (MAIF). These are the only numbers available, because private insurers are not required to provide this information, and refuse to do it voluntarily. In fact, I was at the committee hearing on this bill, and the insurer’s lobbyists were asked this question, and responded that they “did not have” that information.

MAIF is the state’s insurer of last resort, required by statute to cover drivers who have been turned down by at least three commercial insurers. These are Maryland’s riskiest drivers to cover, who consequently pay the most to purchase car insurance. MAIF drivers who face the biggest increase in premium would have to pay about 9.3% more, about $14.50 per month.

So what we have is a 37 year-old insurance requirement that has never been raised. The bill will cost the state nothing, and will result in only a modest premium increase even for the state’s worst drivers.

Consider what a dollar bought in 1972 (thanks to Jim MacAlister, Esq.):

Continue reading "Why HB 825 Is A Good Bill (And The Sun Is Wrong)" »