Maryland Injury Lawyer Blog

Nora Freeman Engstrom writes an amazing article for the Georgetown Journal of Legal Ethics titled Run-of-the-Mill Justice. She writes about settlement mill law firms, writing with a 60 Minutes investigative journalism style that names names, calling out a few law firms she has labeled as settlement mill firms. Engstrom characterizes these firms as "characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit."

There are about 10 different facets of the article I find interesting. I found of particular interest the idea that settlement mills create a "one size fits all" (my words, not hers) kind of justice. Under this system, individualized pain and suffering does not exist for settlement purposes.

What matters, then, for car accident settlement purposes in non-serious injury cases is the amount of the medical bills, what the injuries are, and how much damage was done to the vehicles. Plaintiffs' car accident lawyers have blamed this on a paradigm shift in the thinking of insurance companies in the 90s, This article argues, quite convincingly, that many plaintiffs' lawyers are unindicted co-conspirators in this system.

The author overlooks that settlement mill auto accident law firms are just one contributing cause. The opposite extreme is equally to blame, lawyers who have very small practices and no real marketing presence that do that exact same thing. Take the case, send in the medical records and bills, and settle the case for whatever you can. There are tons of local lawyers parading as lawyers suited to handle car accident claims. The bigger problem? These same lawyers get serious injury accident cases, typically car accidents, where the victim's financial future is at stake. These lawyers take the case because they can't resist and the results are often disastrous. Settlement mill law firms often have the good sense to refer these cases out, realizing they are asking for a legal malpractice lawsuit. Often, the guy with the office on the corner that does wills, criminal, domestic, and everything else under the sun does not have this same sense.

Of course, it is a mistake to label every solo general practitioner as incompetent to handle large auto accident cases just as it is a mistake to assume every firm that runs massive amounts of television commercials as settlement mills.

What is a good plaintiffs' auto accident lawyer to do if he does not want to get caught up in this mess that has been created? If you have a client who wants to settle their auto accident claim quickly and at any price, you are going to be a victim of this system. There is no way out. But if you have a client that wants to maximize the value of their case, there is a simple answer: file suit and request a jury trial. The insurance company is either going to pay at least a reasonable value on the claim or it is going to go to trial where a jury is going to give you the fair value of the case. Because a jury is the ultimate definer of the fair value of a case.

Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.

Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.

The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.

This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.

The Maryland Court of Special Appeals decided Romero v. Brenes yesterday. This case involved a single car accident that killed both passenger and driver. A Montgomery County trial court granted the Defendant's attorney's motion for judgment at the close of the passenger's wrongful death case because the trial judge found that the evidence was insufficient to establish that the negligence of the driver was a proximate cause of the fatal crash.

Defendant's argument was essentially "hey, no one saw this accident so no one knows what happened." The majority of the Maryland Court of Special Appeals found a jury could have found that the unexplained loss of control by driver and the driver's excessive speed was the proximate cause of this fatal car accident.

Continue reading "Single Car Accident Opinion from Maryland Court of Special Appeals" »

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

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" »

I found this nugget from a hearing transcript in a brain injury truck collision case where we are trying to require the defense's medical expert to provide a modicum of documentation regarding the amount of income he earns from insurance companies:

There are a lot of experts on both sides of the aisle who may as well be independent medical examiners because they are honest doctors who just call it as they see it. The problem is that insurance companies - and plaintiffs' accident injury lawyers too but I think to a less extent - frequently stick with the "known known" - as Donald Rumsfeld would say - and only use experts that are the opposite of independent.

• Our Conditions for an Independent Medical Exam: the defendant will rarely comply this request but a subpoena requires the defendant to consider the requests/li>

• Thoughts on Cross Examining IME Doctors: sample cross examination questions
• Should Lawyers Videotape Independent Medical Exams?
• National Law Journal Article on IMEs: an article I like because it quotes me
• USALawyers Article on IMEs: another article I like because it quotes me - I'm easy like that.
• Response to Protective Order for IME Doctor Not to Produce Financial Records

I received the following comment in my inbox on Monday morning:

I was just made aware that if the person who hit you is under-insured, you may be able to use your own motorcycle insurance or even your car insurance for compensation.

At first glance, I thought it was a strange thing to share with me. Then I looked at the author: Denver Motorcycle Lawyer. The website attached to the link is “Denver-Motorcycle- Lawyer” and apparent solo practitioner Scott Sullivan. I’m not linking to the site because I don’t want to aid and abet this effort.

I have a couple of thoughts here. First, don’t spam me. Second, if you have to spam me, do not make it something that on its face makes you look awful. Pretending that you were “just made aware” that there may be an underinsured motorist claim in a motorcycle accident while you are holding yourself out as Mr. Motorcycle Accident Lawyer? Not a good idea. Have we gotten to the point where personal injury lawyers cannot even give us good quality spam?

The competition for Internet traffic for personal injury lawyers – particularly accident lawyers since that is the one thing everyone and their mothers seems to think they can do – is increasing exponentially. I’m feeling it from other Maryland accident lawyers. In response to this competition, everyone is looking for that extra edge. In this case, either Scott Sullivan or someone working on his behalf took this competition one step too far by spamming a blog.

If Eric Turkewitz is right, the real irony is that this comment spam does not do much to help your website. In response to spam that he received, Turkewitz writes:

… I think that there is very little that is actually gained by the spam. There is no link juice, since comments on blogs are routinely set as "do not follow" so that Google doesn't give them any link love. Their pagerank doesn't benefit from the practice.

If someone is doing this for Sullivan, he is hurting his reputation as a lawyer while accomplishing nothing. It is like a Minnesota Timberwolves trade. My advice: fire your web guy/girl and hire either OptiLaw (410-604-1200) or Justia (1-888-JUSTIA1) and have them do your website or blog for you.

Spam actually bothers me less than the average person. I also don't take offense to cold calls, unwanted faxes, etc. It is not worth getting worked up over. But I just really don't like the idea of personal injury lawyers spamming anyone. This type of stuff underscores that for all of the misleading attacks on lawyers, the reputation wounds to accident and personal injury lawyers are largely self inflicted.

Most of my information and opinions on taxis and taxi drivers come from the television show Taxi. Unlike most 70s/80s television shows, Taxi holds up fairly well on reruns.

Anyway, it is pretty clear that Baltimore City and Prince George’s County cab companies are a different animal than Alex Reager's Sunshine Cab Company. There are a lot of single cab operators who disproportionately have MAIF insurance with a 20k/40k coverage limit. For people outside of Maryland, MAIF is a state owned car insurance company for Maryland car owners who cannot get insurance elsewhere but are licensed to drive in Maryland. Let's be polite and call these folks high risk drivers.

It is borderline insane, given how much time a taxi driver spends on the road compared to the rest of us, that (1) he/she is allowed to drive with a shoddy driving record, and that (2) taxi drivers are allowed to drive around with 20k/40k coverage limits.

There would be a lot of wisdom in raising the bar for who can drive a taxi cab in Maryland and in requiring taxis to have a minimum 100k/300k in insurance coverage. That level of coverage is insufficient, but it would be a start, and higher limits could be phased in over time.

After putting my kids to bed last night, I took a look at Gregg Easterbrook's Tuesday Morning Quarterback before going to bed. Easterbrook writes on a lot of different topics such as human happiness (interesting sounding book I've never read), global warming, science, space, theology, etc. So his column during the NFL season is full of digressions about topics unrelated to football.

Continue reading "Speeding Ticket Camera" »

The Maryland Court of Appeals decided Abrishamian v. Barbely, a pedestrian accident appeal from Montgomery County, after jury awarded only half of the client’s special damages (medical bills and lost wages) and gave $0.00 for pain and suffering. The Plaintiff loses this appeal and it is not a close call. The court, however, does discuss some interesting law that is of interest to the Maryland accident lawyer.

The first issue is no issue at all. Plaintiff’s lawyer asked the judge to recuse himself because the judge’s brother represented the defendant 17 years ago and someone else with the same last name as Defendant ten years ago. I’d love to know how the Plaintiff’s lawyer learned this fact and I’d also be curious as to why he would seek recusal for such an attenuated connection. Had the court gone the other way, it would have really brought havoc to the justice system in Mayberry. Would they have to transfer every case to Mount Pilot?

(Brief intermission: one of the great unsolved mysteries of my childhood was the distance from Mayberry to Mount Pilot. Someone once said a four hour drive, but Barney Fife said it was 12 miles. Barney was not the most credible person but 12 miles is pretty specific and he had no reason to exaggerate, given the context. I just don’t know. In an unrelated story, I may have watched too much television as a child. Let’s just get back to this case.)

The second issue is far more interesting. Defendant’s doctor was asked on cross whether he had a copy of the Plaintiff’s medical insurance card. Plaintiff’s lawyer objected before an answer could be given and the judge sustained the objection. Plaintiff’s lawyer argued the trial judge should have granted a mistrial because the question violated collateral source rule. Clearly, this is a long shot argument – a mistrial is not out of the question if the question was inappropriate, but it is a Dr. Sam Beckett quantum leap from that to mistrial as a matter law. (The court also noted that a question may not be “evidence” subject to the collateral source rule.)

Continue reading "Maryland Pedestrian Accident Appellate Opinion" »

I have been interested for a while in how the recession is impacting jury verdicts. Back in June, I wrote about a few articles that drew differing conclusions and I pointed out that neither had any meaningful statistical evidence that supported their claims.

The Wisconsin Law Journal had an article on Monday suggesting that "the chances of getting a favorable jury verdict are as good as they have ever been." They interviewed one accident lawyer who claims this is "especially true in soft tissue injury cases, which include sprains, strains and 'whiplash.'"

While there certainly are good soft tissue verdicts, not many Maryland accident lawyers are racing to the courthouse steps to try these cases, particularly those that are not in Prince George's County or Baltimore City, because they are almost invariably hard sells to a jury and because they typically end up in District Court where there is a bench trial. Juries, often understandably, are just not big fans of whiplash injuries.

I'd be really curious to know how many soft tissue injury jury trials the accident lawyers quoted in this article have tried since the recession. It would not be enough to draw meaningful conclusions as to what the trend has been since October, 2008.

I also think the article is a not so thinly veiled effort to dig for data to support their cause when there is none.

According to data from Florida-based Jury Verdict Research, which maintains a national database of personal injury verdicts and settlements, the median plaintiffs' verdict in 2007 (the most recent year available) was $40,000, an increase of more than $5,000 from 2006. Head-injury verdicts, which include cases involving concussions and head lacerations, jumped from a national median of $12,775 in 2006 to $15,900 in 2007, the highest figure since 2003.

First, there was no meaningful recession talk in 2007 that would lead to a shift in jury outcomes. The idea of a recession did not grip the country until the financial meltdowns last October. Moreover, cherry picking out head injury verdicts seems disingenuous to me.

The article also provides the defense lawyer view that there has not been a meaningful difference in verdicts because of the recession, quoting two Wisconsin defense lawyers.

My best guess based on our law firm's experience: juries are not awarding any more or any less because of the recession.

On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement overmagnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case are of interest to Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.

The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries which required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company with respect to the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff's accident lawyer further argued that is Cecil County's duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years go was no defense. Accordingly, there is a duty imposed on Cecil County when a utility pole is in such close proximity to the road that it was an "accident waiting to happen."

Continue reading "Maryland Motorcycle Accident Verdict Overturned" »

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.

Continue reading "Cell Phones and Car Accidents: Jarring Statistics" »

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)

I was tempted to respond to this Forbes article on how our tort system and medical malpractice lawyers are ruining New York. But, to save myself some effort, I decided to wait the obligatory fifteen minutes to give the resident New York personal injury blogger, Eric Turkewitz, a chance to respond. Literally 13 minutes later, Eric posted this response, which debunks line by line how misleading this article is in looking at the impact of lawsuits on New York and what the real solutions are to the problems raised.

Look, unless you have been living under a rock, you know that I oppose tort reform. (Okay, I'm deluding my importance, but stay with me.) Reasonable people smarter than I am support the idea of reforming the tort system and limiting the rights of victims. But you have to at least pretend to write a balanced article if your are trying to convince the undecided. Otherwise, you are just preaching to the choir.

Continue reading "Forbes Article on Lawsuits in New York" »

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

Esquire (via Overlawyered) has videos of the five worst lawyer ads. It is worth taking the time to watch these. If you do nothing else today, click on the last one, the California Switchblade. Transcendent unintentional comedy. If you are having fun, go to YouTube. There are, by my math, about a zillion more.

Last month, I expressed shock over a van that advertised for a personal injury lawyer that could generously be described as tacky. I've grown up a great deal in the last month. When I read the story of the lawyer living in that personal injury lawyer advertising van and parking it in the hospital parking lot, I'm not going to blink.

The lure of a settlement loan is clear: up front money. The interest rate for settlement loans? Imagine the interest rate that Gazzo (Rocky Balboa’s loan shark boss in Rocky I) must have charged. Then double it.

How do they get around usury laws that say you can’t take advantage of other people? How are these settlement loans not a dictionary definition of predatory lending? The backdoor is that the outcome of a car accident claim or lawsuit is theoretically uncertain. Yet our firm has a large number of auto accident claims where I could show up for trial drunker than Otis from Mayberry and still get money damages from the jury. Every single time. So getting enough to pay back the principal of the loan is fairly certain. Yet the theoretical uncertainty allows most settlement loan providers to charge whatever they want.

Vulnerable accident victims tend to ignore how much money they will owe tomorrow because they are focused on the lure of cash today. Our lawyers discourage our clients from taking these loans.

Interestingly, National Lawsuit Funding provides on its website a copy of an Ohio appeals decision that I think takes a logical view of these loans.

Before I get angry emails, note that I don’t think every lawsuit loan company charges usury rates and never performs a necessary function for some accident victims. But I am saying most do. Here is a sample settlement loan prepayment plan that I just received yesterday for a case (which precipitated this blog post/rant). It underscores the insanity of the terms of some personal injury lawsuit loan agreements.

Here is what cannot be disputed: I would own a baseball team if I started one of these companies. Recession proof business with virtually guaranteed returns.

The Maryland Court of Special Appeals in a 2-1 decision today affirmed a Frederick County trial court’s grant of summary judgment to Erie Insurance in an underinsured motorist lawsuit.

The nutshell: State Farm paid its $100,000 liability policy in a serious injury car accident case. Plaintiff sought payment under his $250,000 uninsured/underinsured motorist policy with Erie Insurance. Erie claimed that it was entitled to a workers’ compensation setoff of $246,305.66, representing the workers compensation benefits the car accident victim received because he was working at the time of the accident. The Plaintiff claimed the setoff should be $27,396.28 because this was the amount of the workers’ compensation lien.

Continue reading "Workmen's Compensation Uninsured Motorist Setoff: New Opinion for the Maryland Court of Special Appeals" »

Warren Buffett's Berkshire Hathaway took a bath this year. But in Buffett's annual letter to shareholders, he seems pumped about how GEICO is faring in the car insurance market. Buffett noted that under GEICO chief executive Tony Nicely, GEICO did its part to keep Berkshire Hathaway profitable, increasing GEICO's market share to 7.7% of the auto insurance market last year (over 19% in Maryland). Buffett makes clear in his report that he is bullish on GEICO:

As we view GEICO's current opportunities, Tony and I feel like two hungry mosquitoes in a nudist camp. Juicy targets are everywhere.

This is a funny quote but, then again, everything sounds a little funnier when coming from a billionaire.

One thing is for sure: GEICO's business model in recent years has included a willingness to absorb more litigation costs because GEICO is far more willing to eschew reasonable settlements in favor of forcing injured accident victims to file a lawsuit than GEICO was seven years ago. I don't say this derisively. Obviously, this business model is working for GEICO. But it does create a lot more work for Maryland accident lawyers and delays justice for injury victims.