Maryland Injury Lawyer Blog

A few weeks ago, I reported on a verdict we got against State Farm in Baltimore County. I inadvertently stumbled on the Maryland Daily Record article on the case today.

George Washington Law Review has published an article titled, appropriately, Against Summary Judgment. The premise of the article is that summary judgment is an archaic procedural device that usurps the role of the jury.

Nonsense. Summary judgment resolves cases that juries should not have to decide because the law bars the claim... or the defense.

I find particularly annoying this premise of the article: summary judgment is bad because most cases that now go to summary judgment would settle early rather than go to trial. In other words, cases that should fail because they have not stated a claim under the law will still settle because the defendant will want to avoid the risks and costs of litigation.

Setting aside offensive summary judgment for a second which is an important tool in a plaintiffs' lawyers arsenal, I'm a personal injury lawyer who would theoretically benefit from such a paradigm shift in jurisprudence. What a great system for personal injury lawyers, right? You get paid on all claims, not just the just claims. Can't get a doctor to support your claim that the injuries from the car accident are related a plaintiff's injuries? Who cares? Let a jury decide or, better yet, try to induce settlement because the defendant does not want - for whatever reason, including litigation costs - to go to trial.

It is a home run with one little victim: justice. It is not fair for defendants to fight claims that are not really legitimate claims because the law does not allow them. If you file a lawsuit and don't have a case the law supports, that claims should be dismissed as quickly as possible. Moreover, it unfairly lessens the settlement value of legitimate claims brought by victims who are both hurt and have a real cause of action under the tort laws that we have agreed upon as a society.

When you think about it, the mirror image of this insanity is caps on non-economic damages. Cases that should not be brought should be dismissed; juries verdicts in meaningful cases should be allowed to stand.

You can find this law review article discussing why summary judgment should be abolished here.

• Sample Motions for Summary Judgment (20 example motions/responses)
• Why Plaintiffs' Lawyers Should Use Summary Judgment More Often (an underutilized tool in personal injury car accident cases)
• Thoughts on Defending Motions for Summary Judgment

This doctor in a case John Bratt tried recently was not, ah, particularly comfortable with his own explanation of why he destroyed 1099s that came to him. Gee, I wonder why that would be? Could it be because there is not an accountant in history that actually recommends not looking at and then destroying tax documents?

This is the testimony at trial:

I'm not going to name the expert because I don't think it is right to raise these issues online because the expert does not get to argue his position. (This blog typically does not name any non-public figures.) But, really, how do you defend this answer?

• Financial Bias (my blog post on this subject last month)
• Cross examining defense experts: ideas on cross examination (includes an interesting comment by a well respected Maryland doctor on the issue of whether gross income is relevant)
• Response to motion for protective order
• Falik v. Hornage (2010 Maryland Court of Appeals Case)
• LawyersUSA Article on IMEs (with quotes from me)
• Outline for Cross of Defendant's Expert in an Accident Case
• Sample Cross of IME Doctor

The Tennessee Titans have filed a lawsuit against University of Southern California and coach Lane Kiffin for "maliciously" luring away assistant running backs coach Kennedy Pola. The lawsuit claims the hire disrupted planning and "potential loss of confidence by players."

The first complex legal question here is clear: do you really need an assistant running back coach? Wait, that's not a legal question. Okay, how was it "malicious"? Was the purpose of the hire to destroy the Titans by hiring their assistant running back coach? What if they had gone after their head running back coach? Can you imagine the inhumanity?

Look, we all get it. Lane Kiffin is doing a lot of things to damage his reputation. But what kind of message do you send when you file a lawsuit - against a university - for hiring a coach when the real thing you are mad about is that Kiffin did not "ask" for permission to hire the coach?

I complained last week about how celebrity lawsuits distort the public's perception of what personal injury lawyers do. All these lawyers want to do, the public complains, is sue people. Actually, the goal is to reach a settlement before filing a lawsuit. How much effort did the Tennessee Titans make to settle this lawsuit. They filed a lawsuit about 20 minutes after they felt aggrieved.

Off the top of my head, I have no idea who the owner of the Titans is. But would you be surprised if he had the pro big business view that trial lawyers are destroying America? I don't know that this is his view, but let's pretend that it is for a minute because it would surprise no one. (I remember him giving the fans the finger last year. So anything is possible.)

My point, by now, is obvious: everyone hates what lawyers do until they feel like they have been wronged. But I think it is crazy to be pro-plaintiff or pro-defendant. Every individual case should be judged on the merits and the totality of the circumstances.

Here, unless there are facts we don't understand - which I concede is entirely possible although unlikely - this case by the Titans against USC is just ridiculous. Not every wrong should be remedied by a lawsuit.

Also, the Titans should do their fans a favor. Any player who has "lost confidence" as a result of the loss of the assistant running back coach should be cut immediately. I don't care if his name is Chris Johnson. Cut him.

I spent a good portion of last week preparing for a trial scheduled for today that settled on Friday. It is a little depressing how many man hours our firm spends every year preparing cases for trial that settle. But every time you really prepare for a trial, you learn and, sometimes more importantly, relearn law and strategies that help you down the road.

The trial was an auto accident case pending in Prince George’s County. The evidence in the case would show a classic chain reaction car accident: Vehicle #2 rear-ends Vehicle #1 and Vehicle #3 hits Vehicle #2 which hits Vehicle #1. Plaintiff felt two impacts which could only happen under this fact pattern.

Plaintiff’s treating orthopedic surgeon would testify that the injury is related to the accident. The problem – which caused me a momentary freakout – was that the doctor could not parse which accident caused the injury. How could the doctor possibly know which accident caused the injury?

We have joint and several liability in Maryland and there is no question that there can be more than one proximate cause of an accident. But my fear was that because the first impact was clearly more significant than the second this fact would highlight to the court that Vehicle #3 may not have been a significant contributor to Plaintiff’s injuries. So, the driver of Vehicle #3’s lawyer (Erie Insurance) could argue that there is no evidence that his negligence actually caused injury. Then, Vehicle #2’s lawyer (also, ironically, Erie) would argue, you know, that same logic applies to us. Even if our drivers are negligent, the joint argument goes, how is this different from a drunk in a bar throwing a punch that never lands? Negligence in the air is not negligence.

I couldn’t put my hands on it right away but I was confident there was Maryland law that would save me from this argument. See Thodos v. Bland, 542 A.2d 1307, 75 Md.App. 700 (Md. App., 1987) and, even better, Consumer Protection Division v. Morgan, 387 Md. 125 (2005). But even with that law, I was struggling with the rationale. I wanted a source more reliable than my own argument of “it would be even more unfair if the plaintiff could not recover in such a case.”

Continue reading "Chain Reaction Car Accident" »

If you are a regular Maryland Injury Lawyer Blog reader, I want to keep you. I've read so many good blogs that I stopped reading because I just kinda forgot about them.

This is one more way to subscribe.

U.S. District Court Judge Roger W. Titus writes an interesting opinion on the applicability of the Maryland long arm statute to a defendant who runs a music camp in New York but has a website that obviously reaches Maryland residents.

The battle in the case was over the rights to the phrase "Bach to Rock." (It is a name worth fighting over, I think. Very catchy.)

You can find the opinion here.

Serious personal injury clients in accident and malpractice cases often understandable get put behind the 8 ball in their personal finances. This means every now and again I find myself dealing with a collection lawyer.

The New York Times takes an honest look at the practice of debt collection. Apparently, and you see this from a few hospitals in Maryland, debt collecting attorneys have decided the best way to collect on a debt is to put the case in suit, a practice that is wreaking havoc on the courts because the volume of computer generated complaints is so high.

The other problem in dealing with debt collecting lawyers, as the article points out, is that many practice law like they are running a factory. You ever try playing phone tag with a debt collection lawyer? It is awful. The lawyer I was calling had no way to get a live receptionist and, incredibly, his message said if we don't call you back, call us again. Another tactic to get the general public feeling cozy about lawyers, I guess. Moreover, professional courtesy seems to take a backseat. These lawyers tend to put calls from personal injury lawyers behind random cold calls in the call back food chain.

Believe me, I know I'm overgeneralizing. And I also understand the importance of having legal mechanisms available to support those collecting debts. The "Man", as John Bratt's refers to big business in his blog post earlier this week, has just as much right to the judicial system as the little guy does. But I think we need to make sure that the consumer is getting adequate protection under the law, too. As the article points out, many of these debt claims are brought without any meaningful proof of a debt but the consumer and the consumer does not have the resources or the sophistication to challenge the creditors claim.

I don't provide any answers today, I'm just point out the problem. Tomorrow's post will try to solve many of the world's problems, I'm sure.

I wrote earlier today about my concerns about celebrity lawsuits and how they distort the public perception of merits of a typical personal injury case and of lawyers generally.

By coincidence, Jay Hancock underscores this problem in the Baltimore Sun today, poking more than a little fun at a Maryland law firm that sent out a "look who I sued" press release that ended up sounding like a press release for the musician the law firm was suing (Ne-Yo).

There is another moral to this story: if you are going to put yourself out there, think about how you are doing it. Did anyone at this firm read this press release before it went out? Now, if you Google the law firm which, by all accounts is a fine law firm, you get this article third. That's not good PR.

(I'm not naming the firm because I don't want this blog post to be on the list.)

• John Bratt's commentary

Since the Supreme Court found in 1977 in Bates v. State Bar of Arizona that lawyers have a right to advertise on the grounds of the public has a right to information from lawyers, the general public has been accustomed to awful commercials from lawyers, mostly personal injury accident lawyers replete with sirens and crashing cars.

Still, relatively few lawyers had the resources to put on television commercials. Almost all were personal injury lawyers because the numbers just didn't work for domestic or criminal lawyers because there is no possibility of a large payday in those cases. The malpractice and accident lawyers that were advertising on television were making a substantial investment in branding their law firm.

So awfulness of personal injury lawyer commercials was regulated more by fundamental economics than the ABA Model Rules of Professional Conduct. Advertising lawyers did not risk their investment and their brand by going too far over the top.

Then came YouTube. Now every lawyer with a camera has an opportunity to put their television commercial into the stream of commerce. Unlike the marketing titans, they have no reputation to lose. So it is the wild west.

Overlawyered provides an embedded link today to one of the worst. It is not a personal injury lawyer but a domestic lawyer ad. It is like a Saturday Night Live sketch you and I would put together on the fly if we were trying to mock lawyer advertisements.

Every time one of these videos gets made, a tort reform cadet gets his wings.

When an insurance company gets a claim, the first thing it does is look for ways to deny the claim before getting to the merits. I don't say this derisively. This is how the game is played.

One insanely overused method of avoiding getting to the merits of a case is claiming the defendant driver was not a permissive user. Insurance companies often take remarkably strained views of what is required to allow permission for another to use the owner's vehicle.

This morning, in Agency Insurance v. State Farm, a wrongful death car accident claim, the Maryland Court of Special Appeals gave Maryland insurance companies a little bit more ammo for this defense. The opinion was written by Judge Irma S. Raker, one of the more conservative judges on the Maryland Court of Appeals who is now retired and was specially assigned to the CSA. The case involved two passengers who were killed in an accident in Frederick County. The battle between these insurance companies was over permissive use. The court found that the vehicle owner's daughter, a senior in high school who was killed in the accident, did not have permission to give permission to her boyfriend to use the vehicle.

But here's the thing: the boyfriend had used the vehicle before with the owner's permission. The only argument State Farm had was that there was no specific permission in this case. The only person who could have rebutted that testimony would have been the owner's daughter who was killed.

I believe the court slices too thinly over the question of whether the daughter's boyfriend had permission to drive her mom's car. Because there are too many variables at play. When she allowed the boy to drive the car before, was it made into a big deal or was it a "sure, of course" type response? Assuming there was not a fatal accident, how mad would she have been if she had learned that the boy was driving the car? There should be a bright line rule to avoid this Serbonian bog and it should err in favor of coverage.

Continue reading "Permissive Use of an Automobile" »

Good news for plaintiffs to start of the week. Rod Gaston, a lawyer in our office, tried a Reflex sympathetic dystrophy (RSD) case in Baltimore County last week against a State Farm insured. The offer in the case was $37,000. After hearing evidence for three days, the jury returned after an hour with a $663,821.15 verdict.