Maryland Injury Lawyer Blog

I’m now joining the rest of America in finally reading Malcolm Gladwell’s “Blink.” Gladwell’s theory is essentially that in some cases, split second decisions are more accurate than drawn out analysis with lots of different variables to consider.

Of course, I wondered how this best relates to personal injury lawyers. I think the “Blink” thesis that best applies to plaintiff’s trial lawyers is the decision to take the case in the first place. Some cases are no-brainers. A rear-end truck accident where someone is killed or seriously injured is obviously a case. A red light/green light case with two independent witnesses against you is not a case. But there is a middle ground in between where reasonable minds can differ. We have recovered millions of dollars for clients who could not find a lawyer. And I’m sure our rejected cases have also recovered a million dollars. The old cliché “one man’s trash is another man treasure” fits snugly here.

Most of the cases I have taken that I regret taking were cases I talked myself into with additional facts. Right now I’m getting a medical malpractice case off my desk that I knew from jump street was not a case. But I liked the client, and I roped myself into looking at the case and spending thousands of dollars in medical records before concluding that it is clearly a bad outcome case that does not involve malpractice.

When we get a good verdict or settlement in a case that has been rejected by other lawyers, there is an overwhelming temptation to feel a little smug about it. If you handle personal injury cases, you know exactly the feeling I’m talking about. But it is misguided. The reality is if you had a top 10 list for personal injury lawyers in Maryland for “most cases rejected that ended successfully,” I’ll bet almost every personal injury lawyer on that list is a successful lawyer. This principle holds with greater force in medical malpractice and product liability cases because the risks of time and money are typically – not always, but typically - greater than in a typical car or truck accident case.

The Maryland Insurance Administration has now given its stamp of approval on Allstate's use of "Colossus 7.0.2+ Assessment for General Damages" and "Decision Point Medical Expert", software programs as tools to "honestly and accurately" asses the value of first party insurance claims. If you are a Maryland accident lawyer contemplating a first party bad faith claim against Allstate, be prepared for the "computer agreed with me so it must be good faith" argument from Allstate insurance claims adjusters.

• How Colossus Works
• Who Uses Colossus?
• Colossus and Allstate
• How Insurance Companies Value Accident Cases

Whenever I prepare for giving an opening statement, as I am today, my head is filled with more advice that I have heard or read over the years than expletives Bill Belichick threw out last night. I am writing today about two issues: what you should wear to trial and how you begin your opening.

The conventional advice from noted trial advocacy authors I have read and respect, such as Thomas Mauet and David Ball, is to leave the Rolex at home. This literal advice includes its corollaries of dressing conservatively with a blue or black suit that you did not buy in Italy, no necklaces or bracelets, etc.

This is the conventional wisdom, and I buy into a part of the premise. Generally speaking, jurors are going to prefer trial lawyers they can related to, and many of us do not relate to the guy with the Craig Sager suit jacket. But I think what really creates a disconnect between a trial lawyer and a jury is when the lawyer is not perceived as authentic. Any time you are stepping out of your box, you are going to be less comfortable in your own skin. Juries are people: they sense this like a shark senses blood.

My style is conservative in that I wear “please don’t notice my clothes one way or the other” attire. I would feel uncomfortable with a diamond hoop earring and a gold bracelet. But some lawyers with traditional clothes look like your Uncle Bill at a wedding: miserably out of their element. If that is who you are, be who you are. Juries are going to say, "Hey, he/she is not like me, but this is a real person." (For Maryland lawyers, see Snyder, Steve for the epitome of this concept.)

A related issue is the first words that come out of your mouth in an opening. Many lawyers, including fellow blogger Mitch Jackson who wrote about this recently, and the late Fred Warren Bennett, a criminal defense giant (as the Daily Record called him) who I was blessed to have had as a trial advocacy professor and adviser when I began trying cases, argue that introductions of counsel and client should come later because you have to seize the opening while you have the jury’s complete attention.

I never saw Professor Bennett try a case. But from class and from everything that I’ve read, he was naturally florid and dramatic. So it probably came easy for him to make a dramatic opening and then introduce himself later. But Professor Bennett told me something else that resonated with me: an opening statement should be a kitchen table conversation where one person is telling another person (each of the six jurors being a person) a story over coffee.

Personally, I can’t have a conversation over coffee without first introducing myself. So for what I lose in the “maximum paying attention” window, I think I gain back by being authentically me.

This commentary underscores how difficult it is for trial lawyers to steal styles, or even tactics, from other lawyers on certain issues of style. Because only you can try a case in your body.

• What Trial Lawyers Should Wear for Trial (Trial Lawyer Resource Center post)
• Quad Cities Injury Lawyers Blog (more on what to wear at trial)
• Motion to Compel Florida Lawyer to Wear Nicer Shoes (no, really)

Accident lawyers attempting to negotiate settlements with insurance companies tend to view insurance companies as monolithic, i.e., "Insurance Company A is difficult' or "Insurance Company B is easy to deal with on claims."

It is an oversimplification. Claims practices by different insurance companies vary from state to state and even from insurance claims adjuster to insurance claims adjuster. But, certainly, each insurance company has its own history, policies and "world view" of handling auto accident claims.

It is also worth noting that the similarities of individual insurance companies tend to vary inversely with the severity of the accident. This is because larger cases invariably require more discretion on the part of the insurance adjuster, and serious injury cases are given to more experienced adjusters who are given more trust from the insurance company.

With all of that said, we have analyzed some of the larger insurance companies:

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

The Maryland Court of Appeals republished University of Maryland Medical Systems v. Waldt today. One of our lawyers, John Cord, has created a document comparing the two opinions.

This PDF document highlights the differences between the October 20, 2009 opinion and the November 10, 2009 opinion. However, the document has been created by electronically comparing the two opinions, and some highlighted portions reflect changes in formatting, page location, or the idiosyncrasies of the conversion process, and do not necessarily mean that the exact wording has changed. Still, it helps you cut to the chase of what the differences are between these opinions.

• Analysis of Original Opinion
• Blog Post When CoA Withdrew the Opinion
• Informed Consent in Maryland
• Goldberg v. Boone (no bright-line test or all-inclusive list of items that must be disclosed by a doctor in order to procure informed consent from a patient)

While not as fun as, say, baseball statistics in the pre-steroids era, I really do enjoy looking at statistics on personal injury lawsuits. The Department of Justice just released a new report on personal injury lawsuit statistics (which I found via TortsProfBlog). The data, as always with this stuff, is older - 2005. But it is still incredibly interesting. Here is a sampling:

• Personal injury lawsuits accounted for about 60% of the estimated 26,948 tort, contract, and real property cases. The big venues are trying less cases. The number of personal injury lawsuits conducted by state courts in our 75 most populated counties declined approximately a third from 10,278 trials in 1996 to 7,038 trials in 2005.
• Verdicts are down a bit, but not much is changing. The median damage awards garnered by plaintiffs in personal injury lawsuits declined from $38,000 in 1996 to $31,000 in 2005. Personal injury plaintiffs prevailed from 1996 to 2005 consistently about half of the time. The percentage of plaintiffs prevailing in automobile accident cases increased a bit from 58% in 1996 to 61% in 2005, but medical malpractice lawsuits became less successful: medical malpractice plaintiffs won in 19% of malpractice lawsuits in 2005 and 23% in 1996.
• Nearly 60% of tort trials were auto accident lawsuits.
• Approximately 15% of tort trials were medical malpractice lawsuits. It takes six days to try the average malpractice lawsuit.
• Approximately 5% of tort trials were product liability lawsuits. Of the product liability lawsuits that went to trial, plaintiffs prevailed in about 40%.
• An amazing 25% of product liability lawsuits are either asbestos claims or other toxic tort lawsuits.
• Judges found for plaintiffs in 56% of tort trials, while juries ruled in favor of plaintiffs in 51% of tort trials.
• Plaintiffs prevailed in less than a quarter of lawsuits involving medical malpractice, non-asbestos (other) product liability, and false arrest or imprisonment trials.
• During 2005, plaintiff winners in tort trials in the national sample were awarded an estimated
  $3.6 billion in compensatory and punitive damages (not shown in a table). The overall median final award of $24,000 in jury trials and $21,000 in bench trials did not differ statistically.

Continue reading "Personal Injury Statistics" »

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post | Comments (0)

Posted In: Personal Injury Verdicts

John Bratt reports in his Baltimore Injury Lawyer Blog on his appellate argument before the Maryland Court of Special Appeals on Friday. John asked the court to affirm a jury verdict his client obtained last year in a truck accident case in Charles County, Maryland.

I agree with John that nothing is more annoying than the lawyer who pretends he is best friends with the judge - even if the lawyer is best friends with the judge. I love the whole "using the judge's first name twenty times as we discuss the case" spiel. Usually, I get your point the first ten times you used the judge's first name.

I'm not so sure I would go as far as John does in saying that calling a judge "Judge __________" in court is a bad practice. But I certainly get his point.

The Baltimore Sun has written another story about the tragic death of a young woman who was a junior at Johns Hopkins and was killed by a drunk driver who has had nine previous drunk driving convictions.

I've avoiding writing about this topic because I really could not think of anything meaningful to add. We all get it. The drunk driver is the bad guy. The young woman who was killed had tons of potential that will never be filled on this Earth. Our judicial system let us down. We all get it. Do we need yet another lawyer with a blog post restating the manifestly obvious?

But why did our judicial system let us down? The laws we have are a function of political pressure we give to our politicians. Why do we allow people with nine drunk driving convictions to stay out of jail? Maryland law let us down more than the judicial system in this case.

How many people in Maryland do you think have more than three drunk driving convictions? Take a guess. I'll provide the answer after the jump to give you a chance to think about it.

Continue reading "Maryland Drunk Driving Laws: Change We Need" »

Sean Wajert's MassTort Defense Blog (c/o Torts Prof Blog) has an interesting post on a new opinion by the Iowa Supreme Court on the question of whether you can admit subsequent remedial measures in cases that sound both in negligence and strict liability.

The Iowa court found that Plaintiff's design defect and failure-to-warn claims involving the jack pin used on a boat trailer sound in negligence, rather than strict liability. Interpreting an Iowa law that, like Maryland's law, is substantially similar to Federal Rule 407, the court held that Rule 5.407’s carve out for strict liability in tort and breach of warranty claims does not apply to designed defect claims, but is intended only for product liability claims alleging a manufacturing defect.

Mr. Wajert supports the court's holding in his blog post:

Plaintiffs, and misguided academics, often assert that manufacturers will choose to make improvements to a product even if those improvements are admissible because the producer would otherwise risk litigation and negative publicity. But there is a substantial body of criticism of that notion, which overstates the relevance of subsequent remedial measures, appears to have an over-focus on mass product producers (when the rule applies to everyone), and invites confusion of the jury, both by diverting its attention from whether the product was defective at the relevant time to what was done later, and by facilitating, in the minds of jurors, an inappropriate equation between subsequent design modification and an admission of a prior defective design.

There is a lot to love about this quote. I like how Mr. Wajert uses "misguided" to modify academics but not plaintiffs. Academics are given a gentle pass for their foolishness. Can product liability lawyers be misguided too?

Continue reading "Subsequent Remedial Measures: New Opinion from Ohio" »