Maryland Injury Lawyer Blog

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors that are high up on the roll call that you just know are anti-plaintiff. I don't know how I actually know this - you get just a glimpse of Maryland jurors in voir dire - but I just do. They have this indescribable "I assume the plaintiff's case is garbage and I can't believe I'm here" look. Defense lawyers have a similar fear, of course, terrified of the "I can feel your pain to the point where I'm able to set aside logic and reason" look. Both of these jurors get rooted out by peremptory strikes. And the "look" is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So, generally, you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs' attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that's "down low" if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that "adverse or hostile interests between plaintiffs or between defendants" justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway, I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don't have to tell you how it turned out: awful. (Yet, still, it was more than the settlement offer which pretty much summarizes dealing with MAIF and GEICO).

Continue reading "Jury Strikes Matter" »

We get a lot of cases from other lawyers who try and fail to settle personal injury cases. So I've seen everything from just sending in some of the medical records with no cover letter, to demand letters longer than Mr. Holland's Opus (which, admittedly, I never read but it sure sounds long).

Being a personal injury lawyer is hard work. There is no way around it. But the absolutely worst kind of hard work is hard work that is actually counterproductive. I think some demand letters fall into that category.

No doubt, if you have over $500,000 in medical bills, you have a lot to write about. But summarizing the medical records and laying out every single significant and insignificant element of plaintiff's intangible damages is just not worth the trouble. You are just not getting the adjuster's attention with a 15 page letter. I really think some personal injury lawyers write these treatise demand letters to justify what they think is going to be their fee in the case, fearing the "what did you do for me to earn all of this money?" question. Heads up: a long demand letter is not going to solve this for you if that question does arise. (And there are good answers to the question.)

Normally in law and in life, wasted hard work is just that. Wasted hard work. But interminably long demand letters can be paradoxically harmful, particularly if you don't know what you are doing and don't have a history of trying cases against that insurance company. Worse still, if you don't understand the medicine or understand what is an appropriate element of damages, you are making it all the more clear that you don't have the skill or the will to try the case. In big personal injury cases, the insurance company suspects - often correctly - that the lawyer has a lot personally at stake in the cases. (Truth is, lawyers generally should not be handling cases that will make or break their year, but that is a story for another day.) These are clues to the insurance company that no matter how far you stick out your chest, you are never in a million years going to be willing to try the case and you are just trying to get as much as you can to settle the case.

Continue reading "Demand Letters" »

John Bratt has put together a four part series on the nuts and bolts of getting organized for trial. Next time you try a case, look at your opponent (or maybe yourself). I think more than 80% of personal injury lawyers on both side of the aisle are unable to find the five key documents in the case within a two minute span. Too many lawyers put so much effort into getting ready for trial, yet do not do the little things to be able to bear the fruit of that hard work because they are such an organizational train wreck with their disheveled documents and 45 Post-it notes.

So, consistent with your 2012 resolution to not let this be you anymore, here are some thoughts on trying organized personal injury cases in Maryland:

• Part 1: Keeping Organized at Trial
• Part II: The Trial Box
• Part III: Trial Technology: The Equipment
• Part IV: Preparing Yourself to Use Technology at Trial

"Facebook helps you connect and share with the people in your life." But what if the people in your life want to use your Facebook posts against you in a civil lawsuit? Whether and to what extent online social networking information is discoverable in a civil case is the issue currently before the Court.

This is the first line in a Pennsylvania court's order on a Motion to Compel Facebook Login Information.

At the outset, it is important to point out that this is a pathetic excuse for a title of a motion. If I were a judge, I would deny the motion just based on this idiotic, although admittedly apt, title. (I'm kidding about this. I think.)

Defendant's lawyers - a huge law firm in Pennsylvania - looked at the plaintiff's Facebook account and found evidence that contradicted her claim of serious injury (often defined by defense lawyers as breathing without a look of agony).

Continue reading "New Facebook Opinion" »

In the NBA labor dispute, the NBA owners say they have put their best and last offer on the table. It is one of the oldest stunts in negotiating. Take this offer or we are going to take it off the table.

I think he's bluffing but I'm not 100% certain. Which, is exactly the point, of course. I don't disagree with the settlement tactic in this exact situation. The man making the call is NBA commissioner David Stern who - getting ready for retirement - is almost certainly negotiating the last labor deal of his life. He will never get called out for bluffing and backing down again.

Personal injury lawyers can also run a similar bluff with defense lawyers and insurance companies if they don't ever expect to deal with them again. But if you are dealing with the same insurance companies in car accidents or medical malpractice cases - which applies to every lawyer in Maryland that has some volume of personal injury cases - you have to consider your overall credibility when negotiating claims. There are at least two reasons to temper the lawsuit/trial ultimatums.

First, the client can change their mind. I have had many clients that dislike the settlement offer and are emphatically ready to file suit and then do a 180 when I tell them we are filing suit. I don't say this derisively. Think about it in comparison to the NBA player. These players risk losing a full year's salary which is worth millions. But, they already have millions. In contrast, in the last case I tried, the client turned down an offer that was five times her yearly salary to let a jury decide. Thankfully, it worked out for her, her award was more than 25 times her annual salary. But the risk she took makes the NBA players' dilemma seem trivial. (A bit of hyperbole here because I'm not taking out attorneys' fees and liens into my "times" calculus. Still.)

Anyway, going back, I really try to make sure the client is genuinely ready to file suit before negotiating as if I have that arrow in my quiver. Once you got out on the "my way or the highway" limb, you are unlikely to get more money on the case, even if the insurance company has more money to put on it. Your walk of shame back to the negotiating table will not be rewarded.

Continue reading "David Stern's Bluff and Negotiating with Insurance Companies" »

Defense lawyers are looking for serious personal injury victims to post this picture on Facebook

Social media is all the rage for defendants' personal injury lawyers. In the olden days, the only really fun Perry Mason moments from discovery for defense lawyers was surveillance video. Out of the 10,000 times the insurance company would do surveillance, someone would hit a "guy who claims he is in a wheelchair runs a 6 minute mile" jackpot.

When I started as an associate, the partner I worked for told over and over again, one "got ya" surveillance story he had when he was a young associate. Every time he told the story, he exaggerated the facts a little more. Most people listening, I'm sure, suspected as much. But no one cared, because it was a fun story. These conflated stories have kept a lot of private investigators in business. Every lawyer wants to tell a "I tricked them" story of their own. It is the defense lawyer equivalent of a high stepping 109 yard interception return.

Now, defense lawyers view social media as surveillance video on steroids. It is a lot cheaper too. There is, in their estimation, a treasure trove of social media weapons to be used against personal injury plaintiffs that contradict their claims. I say "social media" but I think 95% of what defense lawyers really think is out there is on Facebook. MySpace barely has a pulse, Google +1 is just getting off the ground, and Twitter's 140 characters is usually not enough space to contradict your own injury claim.

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 their lawsuit. It does not take a law degree to know there is a method to the defense attorneys' madness. If you put up a picture of yourself playing full court basketball, there is a real good chance you are not as hurt as you say you are, and are more than able to hold down a job.

So, there is undeniable potential relevance. But for defense lawyers, there is one thing standing between them and this grab bag of goodies: how do you get the stuff? Anyone who has tried to dig into the Facebook of their ex to find out how miserable their lives are without them knows that it is not so easy. Often doable, but hard. So many overworked defense lawyers are dropping the spy stuff and cutting right to the chase with discovery:

Have you ever created a blog post or do you have an account that you created with Facebook, Google +1, LinkedIn, YouTube, Twitter, MySpace or any other social networking or blogging device? If yes, please provide the name of the website and your user name an password.

Not many courts are going to allow this type of insane fishing expedition, and most defense lawyers know this. So, smart personal injury lawyers will just object. In the vast majority of cases, that will be that. But, regardless of whatever warning you gave your client, you should know what they have posted on social media after the accident/malpractice before the client's deposition or answers to interrogatories. Because in serious cases, defense lawyers are going to make Herculean efforts to find out what the plaintiff has posted, with or without the gift of hand delivering their user name and password.

• Who can you friend? (one bar association has an opinion)
• Social media and trial preparation
• The Maryland Court of Special Appeals addresses the social media for (what I think) was the first time
• Defense lawyers are spending a lot of time digging for dirt on plaintiffs on Facebook
• Jury selection and Facebook
• Another juror on Facebook story
• Join us on Facebook

I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers' failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology.

Continue reading "Four Personal Injury Opinions From Last Week You Should Read" »

New Maryland Law This Week Will Require Insurance Companies to Disclose Their Insured's Policy Limits

Every personal injury attorney in Maryland has at some point become frustrated with an insurance company over game playing with respect to the their client's insurance policy. Under current Maryland law, an insurance company is not required to disclose its policy limits although such information is readily available in discovery after a lawsuit is filed. Some adjusters would give you enough information with a wink and a nod to figure it out. But most insurance adjusters just stand the party line like robots and say "Our policy is not to give out that information."

Injured clients understandably find this maddening: we tell them they are better off waiting until there is clarity on permanency before filing a lawsuit. But in some case, this means lying around in pain having no idea if you will ever be adequately compensated for your loss. It is maddening.

Starting on October 1, 2011, insurance companies will be required to disclose their policy limits if the following information is provided to them:

Continue reading "New Maryland Accident Law: Useful Change for Personal Injury Lawyers" »

Will Maryland Dramatically Change Juror Selection?

As I have written many times, I'm a big fan of David Ball's book "Damages 3." I've read the entire book more than once. I'm ready to take a quiz on the contents.

But I would fail the portions of that quiz on voir dire. It is hard for Maryland attorneys to get excited about voir dire because we know so little about the jurors we pick. At my last trial, I picked out during the juror roll call who I thought should be on the jury. After voir dire, not a single thing changed. (Maybe a little expectation bias? Sure. Still.)

Were my initial judgments based on useless stereotypes and facial expressions? Sure. But making a decision based on the fact that a prospective juror served on a criminal jury in 1993 or that his mother once had a fractured femur is similarly without foundation. It is like the woman (or man) who marries solely based on how attractive their spouse is criticizing someone who marries for money. Maryland trial lawyers just don't get the opportunity to use real information to evaluate potential jurors. So we are left with stereotypes and Malcolm Gladwell "blinks" to make our decisions.

The Maryland State Bar Association has a trial lawyer, Henry Dugan, who is in charge for a one year stint, and is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions.

Continue reading "Is Voir Dire in Maryland About to Radically Change?" »

Who Should You Call as Your First Witness?

You give your opening statement. The defendant gives her opening. Who do you call as your first witness?

Too many plaintiffs' lawyers - particularly in car accident cases - spend too little time on this question, either because scheduling conveniences dictate the order or because they think the most important witness should be the first or last witness.

In his book "Damages 3", David Ball provides a list of four things you want from your first witness:

• Provide an Overview of the Case: Ball says the first witness should be someone who can tell a significant part of the overall story. Probably the ideal witness is someone who can establish what the defendant did and give some preview of the harm that was caused. In a truck accident case, for example, it would be the witness who saw both the truck accident and the immediate harm that was caused.
• Introduce the Harm: The first witness should be someone who saw the initial harm, assuming it is a case where the initial harm is substantial. Again, a witness on the scene usually meets this criteria.
• No Stake in the Outcome: Clearly, this does not include the spouse or even a close family member of the client. Realistically, you can't get this in every personal injury case. But the closer you can get to "no dog in the fight" the better.
• Cross-Proof: I think this is the most important of all: a witness that cannot be effectively crossed. I think this is the most important factor on this list. It is also the most difficult.

Continue reading "Sequence of Witnesses" »

I love talking to jurors after a trial. You spend days looking a seven or eight people (6 plus alternates in Maryland) and you get to know them. Sort of. But, really, you have no clue. Because jurors are incredibly poker faced. If they are showing "how to avoid giving tells as to your emotions" videos in the jury assembly room, I would not be the least bit surprised.

I found this article on Roger Clemens' steroid trial interesting in this regard. These jurors sat through only two days of trial. Some attorneys say that jurors make up their minds during opening statements. I think that is completely wrong, particularly in a case like this where all of the core facts are in dispute. Still, jurors do start leaning in certain directions and develop in opening statements the lens from which they will view the witnesses at trial.

The Clemens trial is a classic example of a case where talking to the jurors has real value for the parties. What arguments were they buying? Even assuming the prosecution could prove its case, do you think it was a crime? What did you make of Mr. Clemens' demeanor during the trial? These are a few of the thousand different questions you would want to ask because these jurors make up the ultimate focus group - they actually make it past voir dire and onto the jury.

Continue reading "Talking to Jurors After a Trial" »

In DRD v. Freed, the Maryland Court of Appeals affirmed the constitutionality of the Maryland cap on noneconomic damages. I was a big Fred Flintstone fan. So when the court in Freed said the cap was "embedded in the bedrock of Maryland law" because it has been around for 17 years, the phrase stuck with me.

I was reminded of this after a recent trial where one juror asked, "Isn't there a cap on damages in Maryland?" When I confirmed there was, he turned to another juror (in a nice, familiar way actually) as if to say, "See, I told you."

As most of you know, a jury in Maryland is not told of the cap on noneconomic damages during the trial. If there is an award in excess of the cap, the reduction is made after the verdict.

Continue reading "Damage Caps and Jurors" »

Personal injury lawyers put a lot of energy into writing what are called "demand letters" that set forth the injured victim's case and attach the medical records.

I sometimes use the phrase "demand" even though I don't like it. Inherently, battles with insurance companies in these cases are adversarial. So, because we already have enough friction, the wisdom of loading our terminology with demand is probably a bad idea. Really, if we are going to call it a demand, we should load it up so it is more like "Terms of Your Surrender If You Want to Avoid War." A better name that would be more conducive to settlements would be "Resolution Without Litigation Package."

Continue reading "Attorney Demand Letters" »

Something interesting has come out of Alaska that does not involve Sarah Palin, oil, or snow. No, really, it's true.

In Whitney v. State Farm, the Plaintiff had a serious injury case that far exceeded State Farm's 100/300 policy. (Yeah, State Farm is writing those in Alaska too.) State Farm tendered the policy limits. Plaintiff's counsel had an admirable but goofy theory as to why there were stacking policies on the risk where UM coverage applied.

Plaintiff's accident lawyer then did something very interesting. He settled the case with the Defendant far in excess of the policy limits. This gave him a chance to skip a trial and immediately test his theory, bringing a bad faith claim under Alaska's version of a use plaintiff. I'm sure he had some side deal with Plaintiff on collecting the settlement. I'm amazed the defendant's State Farm lawyer - whose bills are being paid by State Farm - had the guts to craft a settlement that was in the client's best interests but not State Farm's.

I love the creativity. But it fails. As a consolation prize, the Alaska Supreme Court left open the property damage claim and claims related to State Farm's duty to timely settle. The latter sounds like a dead loser in this case and the former is a lousy property damage claim.

You can read the opinion here.

The Maryland Association for Justice's Auto Negligence Seminar will take place on Friday, November 11, 2011 (Veterans Day) in Columbia at the DoubleTree Hotel (near the intersection of Routes 175 & 29). A registration form will be available soon but if you want to register online please use this link:

The current list of topics and speakers is as follows:

• Mediation - Tips for Plaintiff Attorneys: : Judge Howard S. Chasanow, Retired Maryland Court of Appeals (also served on the District and Circuit Courts in Prince George's County), has been a full-time mediator for over 10 years.
• Failure to Act in Good Faith Claims from MIA to Circuit Court: Rodney M. Gaston (Miller & Zois) will discuss how to set-up & present a MIA claim and pitfalls and minefields in the Circuit Court
• Financial Discovery of Defense Experts post Falik v. Hornage case: John B. Bratt (Miller & Zois) argued the case before the Maryland Court of Appeals and will provide a roadmap for obtaining financial discovery of defense experts

The moderators are Amy M. Orsi and Eric N. Schloss.

Additional topics and speakers will be announced in the coming days and weeks. If you are a plaintiffs' lawyer and your are not a member of MAJ... well, just join MAJ today.

While preparing our client to testify at trial on Tuesday, I had a hard time getting her not to mention that she had received workers' compensation benefits. So many of her choices were pushed by what workers' comp would or wouldn't do. When you are coaching someone to be as honest as possible, it's hard. Tell the truth about EVERYTHING... oh, but not this.

Jurors are not told about the existence of insurance, either health insurance or liability insurance. There is good reason for this in theory: jurors are more likely to increase their award if they don't know an insurance company is behind the defendant and they also are not going to award medical bills that they assume were paid by insurance. They are also not told that health insurance companies and workers' compensation insurers expect to be paid back if the jury awards plaintiff compensation.

Thankfully, our client did well - no mention of the workers' compensation insurance that paid her medical bills and lost wages. Then the president of the defendant company testifies and promptly blurts out that his company has had few accidents which is why their insurance premiums are so low. For good measure, he repeats himself. One of the jurors later told us that he remembered that he let insurance slip but quickly added, "We figured there was insurance." Another juror chimed in, "This case was more like a workers' compensation claim." This figured in their math too. They pretty much figured she was not going to pay $151,000 in medical bills back to her doctors although they awarded it anyway because good jurors follow the law.

Continue reading "Jurors and Insurance" »

I promised in my last post to write more about our $2.5 million medical malpractice verdict on Monday, a post I will enjoy writing. But preparations for trial on Monday - the worst ankle break I have every seen suffered by maybe the sweetest client I have every taken to trial - has trumped this blog this week. But I will be back shortly...

Our clients were awarded $2.5 million in a Montgomery County wrongful death medical malpractice case earlier tonight.

It is late. I'll have more thoughts tomorrow including my thoughts on just how seriously this jury took the idea of public service. Just a great story. In the meantime, congratulations to our absolutely wonderful clients who tragically lost their husband/father, Rod Gaston who worked up and tried the case for us, and to the lawyer who referred the case to us.

John Bratt provides some cross examination tips on the Baltimore Injury Lawyer Blog.

• My commentary on David Ball's book on Damages on cross examination of defense experts
• Sample cross examinations of mine and other lawyers at Miller & Zois - go to the middle of the page on this link
• An outline for cross examining defendant's medical expert

Reading trial transcripts is a great educational tool for both new and experienced trial lawyers. Getting sample trial transcripts is not easy because unless a case gets appealed on the substance of the trial, you never get a transcript. I think 10 years from now we will have an inventory of all of our trial transcripts readily at hand. Now, I can tell you the number of trial transcripts I have seen on one hand (not counting O.J. and Casey Anthony obviously).

I wish we kept all of the trial transcripts we have had. But we have pulled together a number of them - including a $1 million verdict in a truck accident case - which I think are worth a peek. You can find them here.