Maryland Injury Lawyer Blog

There is a split of opinion among personal injury lawyers as to whether plaintiffs should propound interrogatories before or after taking depositions, particularly in a case where there is a significant dispute as to liability.

When looking at this question, it is important to acknowledge that defense lawyers in personal injury cases are like actors: there a lot of Jack Nicholsons and Meryl Streeps and there are also a lot of folks who call themselves actors but their acting skills do not rise to even Skinamax quality.

So some lawyers are going to learn the case when they get the file and get their client ready, regardless of the stage of the case. Others are going to not know the file at all and introduce themselves to the client and the case 10 minutes before the depositions. The theory behind waiting to serve interrogatories is that if you get the latter type of defense attorney, the defendant will take positions that don’t comport with the facts, logic or good strategy because they have not looked at the nuances of the case. Arguably, this logic would even hold up against a top notch lawyer because every lawyer, even well prepared lawyers, sees a case with a clearer lens on the courthouse steps than they do when preparing for a deposition.

By the way, the same logic holds true with less force when serving requests for admission when litigation commences. Every defense lawyers’ instinct – it was mine as a defense lawyer – is deny, deny, deny and then never go back and look at the answers again. If you have a leg fracture case where the client’s leg is pretty much replaced by a titanium rod, answers to requests for admission that deny the victim was even hurt in the accident certainly make clear to the jury that the defendant is not trying to be reasonable. But it is with less force because the statements of a party are far more compelling to a jury than what they admitted or denied in requests for admission.

The advantage in first obtaining answers to interrogatories is that the answers should help the attorney determine who should be deposed, what questions should be asked of those deponents and what documents should be obtained in the case. Having the interrogatory answers, in some cases, also may tend to shorten the length of time required for the deposition. A possible advantage in taking the opposing party's deposition before serving interrogatories is that the party's deponent will not have thought out the factual and legal position thoroughly with the attorney and be as prepared as he/she might be otherwise.

The decision turns on many factors, including the intelligence of the adverse party and the thoroughness of opposing counsel. A competent, careful attorney would adequately prepare the client for a deposition, despite when it was noted. However, the longer the case progresses, the more likely it is that an attorney will become familiar with the facts and legal arguments and be better able to prepare the witness to testify in a manner beneficial to the client's cause.

Anyway, having said all of that, we serve our interrogatories with our Complaint. First, I think most defense lawyers are pretty good lawyers so the advantage is not overwhelming. (Random aside: I think the average defense lawyer is a better lawyer than your average personal injury lawyer.)

Second, it allows you to take advantage of the fact that as plaintiffs’ lawyers, we can dictate the pace. Going first, we can fully load the proverbial gun before firing, which helps you get your offense started. As much as I like to depose a defendant when he/she and the defense lawyer are not prepared, I think it is even more important to know where defense is going with their case before you answer detailed questions about where you are going. You can play petty tactics games to get to the same place with filing interrogatories first. But I don’t think it is worth the goodwill you spend because, not always but often enough that it matters, goodwill and lack of pettiness begets the same in return.

Finally, there is also another practical issue at play for lawyers with a full case load: from a systems standpoint you have one less thing you have to put back on your checklist. You have less of a chance of screwing it up if you get it right from the beginning.

So why did I bore you with all of this when I could have just written “we serve our interrogatories with the Complaint” and called it a day? One, I think reasonable minds can differ on this point, so I wanted to lay out both sides of the issue. But I also think that applying a “one size fits all” template is a bad idea and leads to stagnant trial tactics. Smart personal injury lawyers do a “drive-by” on this issue in every single case.

Related Posts:

The Baltimore Sun's Jay Hancock observes that Charles Krauthammer holds the Congressional Budget Office up as the apex of unbiased reality in one context, but ignore its findings about the insignificant costs of defensive medicine and malpractice reform in the exact same column. I made the exact same observation last month.

Jay, if you stole this from me, I'm flattered.

The Drug and Device Law Blog has an interesting post on how long lawyers stick with blogging. The short version: most lawyers fail miserably at blogging over the long haul.

Lawyers blog for a lot of different reasons, usually related, at least in part, to furthering their professional career. There are three paths. The road most traveled is the, "Hey, there was an auto accident on I-97 last night." There are about 1000 of these sites written by or for personal injury lawyers who have nothing to add to the conversation but are trying to attract clients directly. These blogs come and go and they are both painful to read and, I'm sure, to write. If you are trying to attract personal injury clients like this, you are almost certainly going to fail unless you have been doing it for years (Google likes websites that have been around for a while).

You know you are reading one of these blogs because when you are finished, you have learned absolutely nothing except that the lawyer wants personal injury clients. These are almost exclusively personal injury lawyers. The patent lawyer approach of "Hey, Microsoft got a patent yesterday" is clearly not going to work. The personal injury lawyers' "there was an accident last night" pitch will also fail, but it is just not as obvious to the blogger.

The second path is the purist. There is no hint of marketing or sensitivity to Google search terms - just pure facts, analysis and opinion. Jim Beck and Mark Herrmann's Drug and Device Law Blog is an excellent example, as is Eric Turkewitz's New York Injury Law Blog. These bloggers certainly enhance their professional reputations with their blog. This is a very effective route, but there is one problem with this path: you actually have to have something to say that would be of interest to someone else.

The third avenue is the hybrid where you write to be educational, informative and interesting, but you are not above an occasional pitch to consumers, and if the possibility avails itself, you use a Google friend keyword you would not use if Google was not keeping score of these things.

Continue reading "Personal Injury Lawyer Blogs: Thoughts on Blogging" »

There is good article on lawsuits involving Little League teams (and participant sports generally) in LawyersUSA this morning which includes a number of quotes from me.

Real Clear Politics has a blog post suggesting that the Democrats are going to flip at the last minute on medical malpractice tort reform to save President Obama's health care bill.

The theory on which this premise rests is that the only real obstacle for Democrats to malpractice tort reform is that Democrats do not want to offend trial lawyers.

I think the premise fails for reasons I'll get to in a minute. But let's play along for a minute and assume this is true.

The author's theory is that trial lawyers will not abandon Democrats because they have nowhere else to go. He writes: "As a trial lawyer friend admitted to me, 'I hate to lose medical malpractice, but there's a whole lot of suing to do out there that has nothing to do with doctors.'"

This argument fails because a party's base always has somewhere to go: home. Trial lawyers are not going to put their significant economic support behind candidates who support malpractice tort reform, and the doctors' lobbyists are still going to stay home and support the GOP. But trial lawyers might support defecting Democrats' opponents in the primaries.

More importantly, losing the money and the passions of trial lawyers would be a meaningful loss to Democrats, even if they have nowhere to go. Republicans learned this lesson when the Republicans who are just in it for the money triumphed over the conservative Republicans whose primary concern is social issues. Sure the social issue Republicans voted for McCain over Obama because they too had "nowhere to go." But they didn't put their hearts and their wallets into it, even with Sarah Palin on the ticket.

As I mentioned earlier, I don't agree with the view from the cynical seats, because I think Democrats care about the minority of people that are being treated unfairly. Isn't this what health care reform is about, insuring many people who don't have a voice? Medical malpractice victims also don't have a voice, and deep pocket medical malpractice lawyers do speak for them, regardless of the true motives of at least some malpractice lawyers.

So I think most Democrats have a problem with malpractice tort reform because it hurts people that need the civil justice system the most and because of that pesky little thing call the Seventh Amendment that everyone has forgotten about in this debate. But I'm also not going to pretend that the millions that trial lawyers give to candidates every year is not a factor in the calculus for some Democrats who are sitting on the fence.

(Note: The Real Clear Politics post is confusing to the extent that it says "we're talking a cap on punitive damages" and not meaningful tort reform, but also writes that Democrats have to "put some skin in the healthcare reform game and accept caps on pain and suffering malpractice awards." I think he means the latter and is using punitive damages synonymously with pain and suffering damages.)

John Cord and I have put together a pretty good summary of Maryland malpractice law, including an analysis of the Maryland statutes that are germane to malpractice. We also added a sample malpractice certificate of merit and an expert report that comply with Walzer.

I've been preaching about the perils of cell phone usage and, in particular, text messaging, because it is clear that cell phone usage causes car accidents. There is a bit of hypocrisy in this. I use the cell phone in the car. I justify this because I keep both hands on the steering wheel while using my Bluetooth. But, arguably at least, the problem is the conversation itself, which means I might be rationalizing when, in fact, I'm no safer than anyone else. Adding to the hypocrisy: I don't talk on the cell phone when my kids are in the car.

Anyway, the Washington Post today offered data that estimates the tab for cell phone usage: 342,000 auto accident injuries and $43 billion each year in property damage, lost wages, medical bills and fatalities.

I'm not impressed by the $43 billion. The stimulus package and the money we have all lent/given to AIG have made us all numb to the word billion. But 342,000 accidents? That number is incredible. The more important statistic is one of the subcategories: number of fatal accidents. The last data I saw, which was the National Highway Safety Administration's data from 2003 that was just recently released, estimated 955 fatalities caused from the use of cell phones. This could be an underestimation; an article Human Factors and Ergonomics Society published in 2005 suggested that there are 2,600 cell phone distraction related deaths a year.

If you are my age, you find it hard to imagine in hindsight that our parents did not put us in car seats when we were kids. I wonder if my kids are going to find it amazing that we were all driving around in cars talking on the phone. Is DWOCP (driving while on cell phone) the DWI of 2030? I think it is possible. Maybe not likely. But possible.

• Cell phone statistics: Teens can't live without cell phones, according to one study
• Car accident statistics: Auto accident statistics that may surprise you
• Car Accident Cell Phone Statistics: Edgar Snyder & Associates complies some interesting statistics)
• Statistics on Car Accidents and Cell Phones: July 22, 2009 post on whether the government suppressed data on the association between car accidents and cell phones

I'm pleased to report that Laura Zois and John Bratt obtained this morning a $1,063,000 verdict in a truck accident case in Baltimore City after a four day trial. John blogs about the trial here.

One of the most important things to do to prepare for mediation is to get the client ready for mediation. If you are prepping a client for mediation in a personal injury case, don't forget to prepare the client for what may come in the defense lawyer's opening statement. Some lawyers try so hard to get the mediator on their side, they go overboard in their opening statement to the mediator, outlining the deficiencies in the opposing party’s case (sometimes even personally attacking the opposing party or his/her personal injury lawyer).

Making matters worse, the practice in much mediation is for the defense lawyer to address the client directly. This does one of two things to clients: (1) makes them scared to the point where they will settle the case for anything, or (2) dig their heels in deeper. In mediation, both are bad outcomes. Get the client ready for this. Plaintiffs should expect to hear a frank discussion of the defense's contentions as to the weaknesses of their case. In your own opening statement, eschew personal attacks and speak kindly if you possibly can of the defendant's lawyer (particularly if their client is in the room, they are always appreciative). Mediation is not a place where hot temperatures facilitate a better outcome.

Of course, the other way to help your client relax during mediation is by being incredibly well prepared. Plaintiffs' personal injury lawyers should be prepared to provide a detailed analysis of how they intend to prove that all of the damages claimed are a result of the defendants' conduct, and should be prepared to address liability issues head on with the mediator and the defense lawyer. Remind the client why the client hired you in the first place.

From my email box this weekend:

i need an example direct examination of liabiliy expert in snow/ice slip and fall case preferably illinois.

We have dedicated an area of our Personal Injury Lawyer Help Center to providing sample examination outlines and sample trial transcripts because our lawyers think it is really helpful to have real samples to review, particularly for personal injury lawyers who have not had the opportunity to try a lot of cases. We do this altruistically but also with a selfish motive: when personal injury lawyers do their jobs correctly, it helps insurance companies properly value future claims.

I get a request like this a few times a week and I’m generally more than happy to help. And I’m sorry if this sounds petty. It probably is. But it takes me 5-10 minutes to find something that we have not already put on-line. But in exchange for those 5-10 minutes you think I could get a “thanks’ or even a “tnx” when making a request? Because I give a lot more respect to people I’m asking to do something that get a paycheck from me every two weeks. Tnx.

This came in response to my post discussing the difficulty doctors have in dealing with medical malpractice lawsuits, pointing out that good doctors make honest mistakes:

Nonsense! Good doctors making a mistake? No one can be subject of a legal action for only a mistake. In fact the law is very favorable to physicians. We are not talking of good doctors making a mistake. We are talking of the crooked, but also lazy and greedy ones. After all, if a doctor is not good enough that he/she makes "mistakes," then why not finding another career? That is what people do all the time. No Sir, you want preferential treatment for doctors. That is why you attempt to confuse your reader by focusing on the good who makes one or two mistakes.

I love the notion that I favor preferential treatment of doctor. But I'm depressed by the notion that anyone believes a doctor who is a good person can't make a medical mistake that badly hurts someone.

As the battle over health care reform reaches a feverish pitch, more opinions are forming on medical malpractice reform and everyone feels more compelled to use the extremist as an example of everyone who shares their view. Did you see Nancy Pelosi try to characterize everyone opposed to health care reform with swastikas because one person displayed one at a rally? Insane. But so is pretending that the only purpose of medical malpractice lawsuits is to pad the pockets of malpractice lawyers, which at least one editorial a day seems to allege.

Similarly, I think the “every doctor who commits an error is either ‘crooked’, ‘lazy or greedy’” outlook on medical malpractice just plays into the hands of people who want to limit the rights of malpractice victims because it makes everyone who supports traditional notions of civil justice in malpractice cases seem unreasonable.

I wait for every Maryland Injury Lawyer Blog post with baited breath. You are absolutely amazing. Is there any way to get notification the moment a blog post hits?

Arguably, I made up this question. But you can receive an email notification of a new post by signing up on the left hand side of this page. Of course, you can always add the Maryland Injury Lawyer Blog to your RSS feed. (I recently started using Google reader and I think it is fantastic.)

Kevin, MD blogs about the toll a medical malpractice lawsuit takes on doctors who commit medical errors.

The post acknowledges that the focus typically is, and should be, on the victims. But it is important to remember that medical malpractice comes from different places. Clearly, there are some bad doctors out there whose negligence is a byproduct of a lack of concern for their patients and an unwillingness to take the time and energy required to give quality care. But there are a lot of good doctors out there who are good people that simply made a mistake.

John Bratt's Baltimore Injury Lawyer Blog also touches on this subject here in a different context.

Five years ago, I had never heard of Ameriprise Auto & Home Insurance. Now, I'm seeing more and more Ameriprise claims that involve an Ameriprise insured defendant. Ameriprise certainly does not have a lot of market share in Maryland. But the Ameriprise website claims it is one of the fastest growing insurance companies in the country. Based on the rise in Ameriprise claims in Maryland, I believe it.

Anyway, the point of this post: the settlement offers that have been coming in from Ameriprise have been worse than awful. Ameriprise clearly has a hard ball business model. This may or may not work for them.

But the take home message for Maryland accident lawyers is clear: you are going to need to file a lawsuit and try some accident cases against this insurance company to get their attention.

If anyone has an experience with Ameriprise worth sharing, particularly accident lawyers in other jurisdictions that see Ameriprise more than we do in Maryland, please give us your thoughts in the comment section below.

• State Farm
• Allstate
• Geico
• Nationwide
• MAIF
• Erie
  

Jury Verdict Research provides some incredibly interesting data this month on a topic of great interest to accident lawyers: disc injuries. Eighty percent of disc injuries that go to trial are from injuries suffered in auto/truck/motorcycle accidents. The median verdict in a disc injury case is $50,000. The average disc injury verdict is $340,328, which includes the 7% of disc injury cases where the award exceeded $1 million.

Many disc injury cases are complicated by either a preexisting injury or because of degenerative disc disease. (Defense lawyers blame spondylosis for just about everything, even if the plaintiff had never had so much as a back ache prior to the accident.) For degenerative disc disease injury, the average jury award is $51,678 ($11,482 median). For aggravation of preexisting disc injuries, the average award is $152,932 ($29,379 median).

The difference in the values between bulging/protruding disc versus a herniated or ruptured disc was rather pronounced. For bulging/protruding discs, the average jury award was $140,311 ($31,000 median). The average jury award for herniated or ruptured discs was $413,917 ($60,000 median).

Obviously, you cannot extrapolate from this data the settlement or trial value of an individual accident case. But seeing relative data for different types of disc injury cases does provide at least a small piece of the complex puzzle of valuing disc injury cases claims.

• Herniated Disc Cases (an overview)
• Sample MRIs in Disc Injury Cases
• Cervical Herniated Disc Values (median value in Virginia, Maryland and Washington, D.C. for disc herniations in the neck)

This mission - should you choose to accept it - is clear. It is being executed by others with discipline throughout the country. If properly implemented, it will fill the RSS feeds of every medical malpractice lawyer in this country with editorials from New York to Timbuktu (not the goal but a fun byproduct).

Write as many editorials as possible claiming there is a medical malpractice problem. Gloss over that the data increasingly shows that there is little evidence that we have anything resembling a malpractice crisis. Make sure you mention - directly or indirectly - that medical malpractice lawyers are getting rich in a lottery. (By all means, use the word "lottery" at least once.)

Because the evidence is so weak that medical malpractice lawsuits are a large strain on the economy, argue something more difficult to measure: defensive medicine. Assume that all defensive medicine is to be bundled together and left at the steps of medical malpractice. Pretend that the only reason doctors order unnecessary tests is to save their own skin, as opposed to the fact that they genuinely care about their patients and want to go the last mile to make sure. Perpetuate the lie that ironically makes doctors look awful - that doctors order tests that are not only unnecessary but that also subject patients to unnecessary risks that cause them harm. (Gloss over the fact that this practice would actually increase that number of malpractice lawsuits because more patients would bring lawsuits from injuries as a result of unnecessary tests. It is too complicated of an idea: people will turn their brains off after unnecessary tests. Our focus groups designed to manipulate the opinions of the American people have told us that.)

• Wisconsin Supreme Court begins to lean to the right, notwithstanding last week’s informed consent holding.
• $11 million malpractice settlement in Chicago (Dallas Fort Worth Injury Lawyer).
• Advice on coordinating PIP and workers’ compensation in third party car accident cases.
• The argument that early settlements in medical malpractice cases – even before a lawsuit is filed – would make more economic sense for malpractice insurance companies. Obviously, I like the idea but I wonder whether this study factored in the “deterrent effect.” One reason why every medical malpractice case is a war is to send a clear message to medical malpractice lawyers: every malpractice case you file is going to be a war that is going to cost you money. An annoying practice to be sure but is it a good business model? I have no idea.
• Eric Turkewitz on trying to solve the ambulance chaser problem in New York. I don’t think we have a lot of this in Maryland but we certainly do in the District of Columbia.
• Neurontin lawsuit ends bizarrely.
• Thoughts on handling personal injury claims against State Farm.
• Yaz/Yasmin Lawsuits are consolidated in an MDL.
• TortsProf (roundup of personal injury links).
• Risk of texting while driving from the Maryland Accident Lawyer Blog, Rob Sachs with Shrager, Spivey & Sachs, and the Reeves Law Group Blog. I really don’t think the risk is 23 times greater. That is an insane number. But the larger point should not be obscured: Crowley and Gates go much better together than texting and driving.
• Robert Kreisman writes in his Chicago Personal Injury Lawyer Blog advice for all of us on another means to decrease medical malpractice lawsuits: the insistence on clear communication with your doctor. I think bad automobile drivers get in more accidents that are not their fault than good drivers; good drivers see other drivers' negligence but are paying careful enough attention to avoid the accident. The same is true for medical malpractice: bad patients are more at risk for malpractice than good patients.
• Palm Beach focuses on the problem of teen driving. The LaBovick Injury Law Blog underscores the tragic facts: there is a 40% higher risk of fatalities for drivers age 16-19. What exactly do we do about this? Set the driving age at 20? This seems impractical, to be sure. But so is losing 5,000 teenagers a year to fatal car accidents. I wish I had the answer.
• O.J. Simpson wants to be released pending his appeal because he poses no flight risk. The problem is that it is safe to assume that every justice on the Nevada Supreme Court watched the Bronco chase live, even with a riveting Knicks-Pacers game on as competition. So I suggest betting against a release in your office pool.
• Overlawyered (August 3rd roundup).
• New York Personal Injury Law Blog (roundup of personal injury links).
• Scott Greenfield’s Blawg Review.