Maryland Injury Lawyer Blog

The South Carolina Supreme Court overturned a $31 million verdict in a Ford rollover case stemming from a catastrophic accident in 2001 that caused brain damage to a 12 year-old boy. This was a difficult case. A mother was driving with four children who were not wearing seat belts and the mother took her eyes off the road and swerved to get back on the road. The question was whether the design of the Ford Bronco was a substantial contributing cause to the child's injuries.

Obviously, a jury found that it was and sent a powerful message to Ford: $16 million in actual damages and $15 million in punitive damages.

The South Carolina Supreme Court overturned the verdict for a lot of reasons. I won't go into all of them but there are two reasons set forth for the court's reversal that I think are of particular interest.

First, the court found that it is improper for lawyers in closing arguments "to arouse passion or prejudice." The court cites these statements made during the plaintiff's lawyer's closing argument as improper:

1. "This is how Ford looks at this. That little bit of thirty people being killed every year didn't matter. Those thirty people, those thirty extra people getting killed in a year didn't matter to them because it was just a little bitty number."

2. "It does matter about those people getting killed. Those thirty people do count. Those thirty people--that's thirty more people that got killed that year. If you expect these vehicles to last about twenty years, that's six hundred more people getting killed using this vehicle as opposed to a Chevy S-10 Blazer. That's serious."

3. "And that doesn't count the paralyzed people, the quadriplegics, the people with serious injuries, the thousands of people that have been in these events because of this rollover propensity of this vehicle that they knew about, and they knew it since day one but they chose profit over safety every time because they looked at it as numbers. They didn't look at it as lives, as people."

4. "I submit to you that the evidence is that they did it because they thought it was a little, small number. . . . [T]hey did not look at it as thirty lives a year[], they didn't look at it as six hundred lives. That's how they should have looked at it, but that was not how they did it."

5. "They got together at the highest levels of Ford Motor Company and they made a judgment that rather than delaying and improving the Bronco II, they were going to sell the vehicle as it was and that they were going to risk people's lives and they were going to risk serious injuries like we have here today. They were going to risk people's brains."

6. "Jesse Branham is here today with a brain injury and six hundred other people, or however many it is, lost their lives, and numerous others have brain injuries or are paralyzed, quadriplegic, have extremely serious injuries. We believe that you should tell Ford Motor Company what you think about this kind of thing."

The court found these improper because they relied on evidence that was inadmissible, because it asked for damages for harm to others, and because it improperly inspired the jury to act on passion as opposed to reason. All of these arguments are flawed.

If the evidence is inadmissible, then that is the basis to overturn the verdict. There is no need to tie it to an improper closing. Presumably, this would be true in any case where evidence was inadmissible.

Additionally, the court believes these statements led to asking for damages for harm to others. But the attorney is asking for punitive damages. We don't have punitive damages in Maryland without proof of actual malice - which eliminates 99.999% of cases like this from being considered for punitive damages. But if you are asking for punitive damages, it seems to me that you have to give the context of why there was a risk of harm to more than just the plaintiff. (Plaintiff's lawyer also got into evidence the salaries of certain executives at Ford which does sound pretty incredible. But, again, our law firm has never handled a punitive damages case so I really can't speak to the standard for admissibility in these cases.)

Continue reading "$31 Million Rollover Verdict Overturned" »

Paul Luvera offers on his blog a good checklist for preparing a case for trial.

Paul points out that checklists - seemly obvious things that have probably been around since man was carving into stone - have received renewed interest in other fields, most notably in medicine where some studies have shown that being a slave to the checklist is in some cases better than the doctor using their own judgment.

If this is even occasionally true, it is pretty humbling for a professional, particularly a doctor. Accepting that you need reminders of the obvious does not stimulate the ego. But I think most errors that result in medical malpractice or legal malpractice are not because the doctor or lawyer did not have the skill to avoid the mistake but because they didn't make proper use of what they already knew. Proper use of checklists can help fill that gap.

Besides the humility required to implement them, checklists get a bad rap because of how often people mindlessly check off items without consideration as to whether the item has been properly completed or they work just to check off the list without consideration of the big picture. But there is no system that is going to be able to withstand user neglect.

Someone has developed an iPad application for jury selection. Let's just say this might not start a revolution.

The Legal Intelligencer has a pretty comprehensive article about how to frustrate, annoy and pry into a plaintiff's Facebook activity.

In a malpractice or car accident case, the primary purpose of Facebook discovery is to show that the plaintiff is not as seriously injured as claimed in the lawsuit or in discovery. If you put up a picture of yourself skydiving on Facebook, there is a real good chance you are capable of going back to work.

Still, putting your physical condition at issue in a lawsuit should not be carte blanche into communications that are usually intended to be private to a relatively small group of people. This Legal Intelligencer article does not even begin to suggest that defense counsel do anything but go all in with the "big guns." The article does not caution lawyers to argue reasons why the otherwise private information is relevant and does not suggest narrowly tailored requests. Instead, this attorney suggests a raw fishing expedition which I don't think a lot of courts are going to allow.

As I said, I'm not unmindful of the fact that discovery of Facebook information can lead to relevant and admissible evidence. But in how many cases and at what cost? Maryland courts are, as we learned again in Falik v. Hornage, looking to balance the witness’s privacy interests against the opposing counsel's right to discovery information that could lead to admissible evidence. Does anyone think that we should be able to get discovery on an expert witness's Facebook page on the off-chance there is a photo of the expert drinking tequila with a State Farm in-house lawyer in Cancun? Of course not. There has to be some compelling reason to grant access to someone's personal Facebook account beyond the filing of a lawsuit and a claim of injury.

• Follow Us on Facebook (without a subpoena!)
• Silly Facebook Class Action Lawsuit
• Another Legal Intelligencer Article on Facebook Discovery

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

I almost universally like Progressive insurance adjusters. Progressive's claims adjusters seem nicer, more professional, and less inclined to take cases personally than a lot of other insurance companies. I can say the same thing about Progressive's lawyers. Most are decent, straight shooters and good lawyers. Oh, yeah, Progressive's stock (NYSE:PGR) has done fairly well since early February.

I've fully exhausted the list of nice things I can say about dealing with Progressive. This insurance company just does not make fair settlement offers in car accident cases. I believe that in a given case if you could line up all of the insurance companies and ask each one to make an offer based on their evaluation of the injuries from a car accident, Progressive would give the lowest settlement offer on that case. I also think Progressive would be the first to deny liability in an accident case.

Why does Progressive do this? Largely because it often has so little to lose. My theory with Progressive is that it tries to compete on the Internet for car insurance buyers fighting hard for the lowest price. These are often the same buyers who are not willing to set their liability insurance limits at a reasonable amount. When you trademark the phase "Name Your Price" in selling insurance, you are probably not selling a ton of coverage. So with its small insurance policies, often $20,000 in Maryland, Progressive can stick its neck out knowing that, in the end, it can fold before trial and their exposure is limited.

For example, we have one tough case where a man's life was pretty much destroyed by a car accident in Ocean City. It is a rear end accident, he only has around $20,000 in medical bills but he needs a future surgery. So what is Progressive's settlement offer in the case? $5,400.

So Progressive hires its own expert to say the guy is not hurt, right? Actually, no. Progressive's own expert did an "independent" medical exam and found that all of the medical bills were related and agrees that all of the treatment was necessary. Don't take my word for it, this is the defense expert Progressive hired in the case. (Here is a redacted copy of Progressive's doctor's independent medical exam.) I think it is beyond ridiculous that this expert suggests that half of his surgery should be attributed to his preexisting condition because he had "mild degeneration of the cervical spine" before the accident. But even if all of the plaintiffs' treating doctors get the Ebola virus, even if Progressive's expert becomes our expert, our recovery at trial is going to be far, far in excess of Progressive's policy limits.

Progressive has a small in-house defense firm in Maryland and does not have the resources (I should say has not set aside the resources - Progressive has lots of resources) to wage war with plaintiffs' lawyers throughout Maryland. So Progressive will often increase their settlement offers substantially after a lawsuit is filed. In this case, Progressive has rung up a lot of legal bills but will still have to settle the case for the policy limits. It would have saved Progressive a lot of litigation costs to properly evaluate this case at the outset.

I spend a lot of time responding to random questions from other lawyers, in part due to the fact that the Maryland Injury Lawyer Blog has a decent following. I'm going to start publishing some of the responses to the extent they are helpful to anyone else. The topic for today is the practical ramifications of requests for admission that are deemed to be admitted at trial.

Reader's Question: The federal and many Civ Pro rules deem admissions admitted if not responded to within 30 days. Here is the scenario: the court rules the party was dilatory in responding and the admissions are deemed admitted. However, the party did respond to ROGS in time, as you expect some of the answers are clearly incompatible with deemed admitted admissions. Trial time -- if your read into the record the answer to the admitted admission doesn't the witness have the right to respond no that's incorrect these admissions were deemed admitted by the court they do not reflect the facts accurately, or no that's incorrect as I stated in my ROG answers the correct answer is . . . . or will the court not allow the witness to rebut the admitted admission even though a fact finder would see that the admitted admission is actually factually wrong (i.e. admission states that on the day the car you were driving was white however one that day you were driving your own car which was blue but the admission deemed admitted would "force" you to accede to it being white)?? Would the admitted admission be treated akin to a comment made during a depo and can be used during trial to question the veracity of the witness?

Fundamentally I'm wondering about the awkward reality of admissions deemed entered by failing to timely file a response and the fact that the deemed admissions are factually incorrect -- would a court countenance allowing a case to be won or lost based on the dubious truth of admissions deemed admitted simply because the rules require the admission to be admitted.

My Response: I've never met anyone who has ever tried that case. Because either (1) the case settles because the admitting party panics or (2) the court lets the admitting party off the mat. But, fundamentally, the rule would have no meaning if the Defendant could do what you suggest. What would be the point, Judge, of having the rule if enforcement of it allowed Defendants to wiggle out by disagreeing with themselves elsewhere? You can't create a contradiction in your own discovery responses and argue the one you like best. Therefore, the remedy should be the admitting party should be estopped from making any contention that contradicts the request for admission. That's your argument.I have settled cases using failure to respond to RFA. Not 31 days kinda failing to respond, more of the letters of the "Hey, these things are going to be deemed admitted if you don't answer and you still get no answer" variety. There is Maryland law that says in this case, enough is enough and they are deemed admitted. Good luck! - Ron Miller

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases

Religion and Scripture is the subject of one of the most compelling chapters in Reptile, a book offering a guide for plaintiffs’ lawyers on trying personal injury cases. The lessons offered in the book have made a meteoric rise from novel theories to conventional wisdom by most experienced personal injury lawyers. You don’t have to blindly accept every premise in the book but if you are handling product liability, accident, malpractice or any other kind of tort cases – even if you are a defense lawyer – you need to buy this book.

The premise is simple: most of us believe in God and view the world from the lens of faith. This is obviously true for people who wear their religion on their sleeve. (Not saying that is a bad thing but you know what I mean.) But the rules of Scripture, according to the Reptile authors, command authority as the “ultimate rules” for not only the faithful but the agnostic and even atheists. The Bible is loaded with stories and parables that apply to every situation where justice is being sought. Here are a few of the plaintiffs’ theme direct quote suggestions:

• "Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd." (Exodus 23:2)
• "Do not deny justice to your poor people in their lawsuits." (Exodus 23:6)
• "Truthful lips endure forever but a lying tongue lasts only a moment." (Proverbs 12:19)

The first question is whether or not this is admissible and whether you are going to offend the sensibilities of the court. I don't think this is an impediment. Argument is argument and Scripture is history like any other history and can be used to make an argument. I see no difference in quoting the Bible than I do in making an American Revolution or Civil War reference, in closing.

Continue reading "The Bible at Trial in Personal Injury Cases" »

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

I'm pleased to report that our own John Bratt won two consolidated cases in the Maryland Court of Appeals today. The decision really goes to the core of the question as to what kinds of financial information from professional expert witnesses is discoverable. One of the cases has already gone to verdict; the other is a serious brain injury case where our ability to cross examine Defendant's expert on bias is going to be extremely important.

I would summarize the case but I suspect John can provide the best summary on his Baltimore Injury Lawyer Blog. When he posts his summary, I will alert Maryland Injury Lawyer Blog readers. (It is worth adding John's blog to your RSS feed if you have not already done so.)

You can find the Maryland Court of Appeals opinion here.

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had reached a settlement after filing a lawsuit against her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband were separated but before they were divorced and the lawyer spouse wanted all of the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution. Pain and suffering damages are not marital property.

This is an easy enough rule to formulate but there is a problem in its application. Personal injury settlements do not allocate between economic and non-economic damages. This issue is one that personal injury lawyers frequently tackle in a variety of contexts, most notably, in dealing with medical liens. How much of the settlement was for medical bills? The insurance company does not (and cannot) delineate.

The Maryland rule the court underscored in Murray is that it is for the finder of fact to determine how the settlement should be apportioned. Interestingly, the trial court rebuked the Montgomery County trial judge who found that the husband in this case did not prove any of the property at issue should be classified as martial property:

In its Opinion and Order, the court found that the settlement agreement did not “delineate what the $550,000 represents, other than a settlement.” Ironically, it blamed [Defendant] for failing to carry his “burden to identify and value the [proceeds] he seeks to classify as marital,” concluding “there simply is no credible evidence from which the court can conclude that this sum is marital.” [Defendant] complains that his cross-examination into the status of the settlement funds was unduly restricted. We agree.

The take home message for Maryland personal injury lawyers advising clients is that you cannot give them a definitive answer as to how much their spouse will get out of their settlement. But you can tell them that the spouse gets half of any part of a settlement that is determined to be for (1) present or future lost wages that were incurred during the marriage, (2) medical bills, and (3) joint loss of consortium. The plaintiff spouse does get to keep their own pain and suffering damages, which should be the largest portion of most personal injury settlements. How to apportion what part of a settlement falls into what category is a subject of argument until it gets to a finder of fact who is required to engage in the difficult task of apportioning the settlement.

You can find the full case here.

Beth Osowski provides a nice list of trial themes for plaintiffs and defendants' lawyers in the Civil Litigation Blog.

This is not a bad list to gloss over before trial if you are not crystal clear on what your trial theme(s) should be. I like that these themes are short and simple. If you can't describe your claim (or defense) in 5 words or less, it is going to be hard to get it across to a jury. From the plaintiffs' perspective, as David Ball and Don Keenan explain in Reptile, the best themes show the defendant's actions constitute an immediate threat to public safety and that a significant verdict for the plaintiff will reduce that danger.

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.

John Bratt's Baltimore Injury Lawyer Blog offers advice on defending motions for summary judgment.

You can find sample oppositions to motions for summary judgment here.

The article that John Bratt and I wrote for Trial that offers advice to plaintiffs' personal injury lawyers on the mediation of catastrophic injury cases is is now available online for American Association of Justice members. If you get the magazine, you should be getting it any day now. Email me at ronmiller@millerandzois.com with any questions or comments that you may have.

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.

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)

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.

I once had a jury ask the judge to see my damage exhibits in a case where I had asked for over $800,000. We all knew what that meant: Plaintiff's verdict. The judge gently chided the defense lawyer for making no offer in the case. I took a deep, satisfied breath with confidence that a jury verdict was imminent.

Because of how I'm leading the story, you know what happens next. The jury came back with a defense verdict.

So, I take with more than a few grains of salt any question that a jury has during deliberations. The Sacramento Bee reports that jurors in a wrongful death case in Sacramento asked for an adding machine that went up to ten digits.

In spite of my story above, I would still view this as a favorable sign for Plaintiffs.