Articles Posted in Uncategorized

Ted Cruz has made a lot of enemies.  I cannot remember a legitimate candidate for president who seemed to be as personally disliked as Ted Cruz.   This quote in the Washington Post describes how Ted Cruzhe was viewed when he attended Princeton:  “You either didn’t know Ted Cruz, you hated him, or you were David Panton.”  That’s harsh.

What does this have to do with this post?  Nothing, really.  I just thought it was worth pointing out.

Cruz is very proud that he was on the front line in the tort reform battles, a point he will probably make in South Carolina – while I write this post.  He defended appellate challenges to the 2003 Texas law that allows Texas doctors to commit malpractice as often as they please without any limitations.  He was an author of George W. Bush’s “Let’s turn a blind eye to our federalism platitudes and install nationwide tort reform.”

After these accomplishments, Cruz gave being a private lawyer a spin.  Even Cruz’ enemies who will now agree he is a fantastic appellate lawyer.   He did what you would expect him to do in private practice: help big companies fight each other and squash the little guy.  Also a personal injury lawyer, Ted Cruz defended, on appeal, two mammoth plantiffs’ verdicts in New Mexico that involved $110 million in damages between two plaintiffs.   Keep in mind this was after he passionately fought against personal injury victims in Texas and throughout the country.

Why would such a committed tort reformer agree to represent victims?  Cruz made clear that if he was going to get involved the “money had to be right.”

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After a serious accident or the loss of someone that you rely upon economically, the financial hardships can be overwhelming.  In even the best case scenario, justice is never immediate.  I’ve seen people suffer incredible economic losses Wallet with moneywhile they wait for justice, including losing their homes.

Some people file for bankruptcy.  What most victims and even personal injury lawyers in Maryland do not fully understand sometimes, your personal injury claim becomes the property of the bankruptcy estate, when a injury victim files for bankruptcy protection whether the claim is listed in the bankruptcy or not.   In my experience, the personal injury victim generally gets the claim back after the bankruptcy.  But as the victim’s lawyer you represent the victim, then the trustee, and then back to the victim again.  The whole thing is just an utter mess.

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Facebook discovery is all the rage amongst defense lawyers in personal injury cases.  The reason is twofold.  First, it gets defense lawyers Facebook and magifying glassaccess to information that might lead to admissible evidence that could diminish a plaintiff’s claim.  Rarely will it relate to liability but there is a real possibility that out-of-context (or in context) it would lead a jury to believe their pain is less than stated.

The second reason, and I think an equally driving force, is that defense lawyers have a new tool to harass the plaintiff(s).  Why? Because there is at least a sub population of defense lawyers who want to punish plaintiffs and their lawyers for bringing any personal injury claim.  This is the type of discovery that can be done without any real effort.  All you have to do is ask.  That is the real beauty of this discovery from the defense lawyer’s perspective.  You just cut and paste from the guy down the hall or something you find online (I’m helping them here) and then just shout “reasonably calculated to lead to admissible evidence” if the plaintiff’s attorney objects.

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expertIn any serious personal injury case in Maryland, you need an expert to testify.  Are there some cases where the injury is so obvious that a medical expert is not required?  There may be.  But anyone willing to take that chance should not be trying tort cases in Maryland.

Why Do We Need an Expert?

An expert has a number of purposes.  First, with a few exceptions, you want to ask the jury to compensate you for the medical bills that you have incurred, even if they have been paid by medical insurance (because the jury is not told that insurance paid for the medical bills).  Accordingly, you need a medical doctor with experience treating that particular injury to testify that the medical treatment that the plaintiff received was fair, reasonable, and medically necessary.

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I was looking today at some interesting statistics on the most frequent types of car and other motor vehicle accident injuries that go to trial.  It breaks down like this:statistics

  • Back strains: 33%
  • Disc injuries: 15%
  • Spinal nerve injuries: 10%
  • Head injuries: 10%
  • Shoulder injuries: 4%
  • Knee injuries: 3%
  • Brain damage: 3%
  • Vertebra injuries: 3%
  • Everything else (including wrongful death): 2%

At Miller & Zois, we do not have many back strain cases so that 33% probably gets knocked by at 5%.  A lot of our cases come from attorney referrals from other personal injury lawyers who are keeping these types of cases for themselves, as they well should.  Our website constantly underscores “serious injury only” which keeps away a lot of those smaller cases.  We do this because our business model which requires us to work up every case like it is our only case (self-serving, sure, but true) does not work well with smaller cases economically.

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truckaccidentA new appellate opinion offers some interesting insight into the parameters under which a plaintiff may inquire about a truck driver’s driving record and the extent to which plaintiffs’ truck accident attorneys can use cross examination fodder like the commercial driver license manual and other safety manuals.

Fact of the Case

Briefly, a man on a bicycle was killed when he was hit by a truck.  The bicyclist was making a right turn against a red light on a white pedestrian signal.  The truck hit him and he was dragged for several hundred feet.

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scheduleScheduling depositions in car accident lawsuits usually is not a complex thing. You call the other side, you agree on dates, and you have your depositions. The key is cooperation. Rather than unilaterally serving a deposition notice, you just call opposing counsel and agree to the place, date, and time. There are rarely issues.

For some reason, and I’m not entirely sure why, scheduling depositions in medical malpractice cases always seems to be an ordeal. Common courtesies that I’m sure many Maryland malpractice lawyers accord each other in the rest of our lives sometimes go out the window. Sometimes, it seems like otherwise ethical lawyers have no qualms about making up excuses for why they or the deponents cannot attend a deposition that are not based in fact. Often, you can figure this out when you depose the witness. Continue reading

skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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Maryland appellate opinionsMark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other.   There are lots of attorneys that don’t like each other.   Lawyers are probably more confrontational and competitive than your average bear.  If you doubt this premise, go watch a lawyers’ league softball game.   So add this natural tendency with the intensity of litigation and people are going to find reasons to get upset unless you are ultra thick skinned.  (One resolution of mine in 2014 is to develop some thicker skin all the way around.)

When these two lawyers fight, it goes deeper and litigation apparently follows.  The Maryland Court of Special Appeals recently  affirmed the dismissed defamation, libel, slander and intentional inflection of emotional distress claim that one had filed against the other.  You can find the opinion in Mixter v. Farmer here if you are interested.  Something about someone writing a letter to other lawyers saying disparaging things or something.   I started to read – mostly out of prurient interest – but I realized I must have something better to do.  (So I wrote this point instead?)

This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals.   The last one involved a case that settled but one of lawyers became so mad that he sought and received a sanctions order against the other.   The appellate court reversed the order of sanctions.  So a whole lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.

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