Maryland Injury Lawyer Blog

The Indiana Supreme Court issued a troubling opinion last week in Stanley v. Walker, ruling that the discounted price actually paid for medical care by insurance is admissible as evidence.

Ah, what about the collateral source rule? Well, the Indiana Supreme Court thinks they have us covered. The court says this evidence can only be introduced to the extent that discounted amounts can be introduced without referencing insurance. I dissent.

This is an appeal of an accident case of what was probably a decent verdict: $70,000 on $11,570 in medical bills (does not appear to be a serious injury case, but the opinion is not clear). His medical bills actually received by the health care providers were adjusted by write-offs negotiated by his insurance company, Anthem Blue Cross Blue Shield, to $6,820.

Defendant’s lawyer agreed that he could not ask questions about Plaintiff’s collateral source rule, which, as I understand it, is similar to Maryland’s rule. But the defense lawyer did argue that neither the Plaintiff nor his insurance company was responsible to pay the written-off sum, and accordingly, the write-offs did not constitute an insurance benefit under Indiana's collateral source statute.

From this creative argument – which I applaud on either side of the v - Defendant’s lawyer contended that he could introduce evidence of reductions as indicia of the actual expenses. Plaintiff’s lawyer’s response – that carried the day below in the trial court and to the Indiana Court of Appeals – was that because collateral source payments were insurance benefits that Plaintiff paid for, they are not admissible. Plaintiff claims that the Defendant should not be the beneficiary of Plaintiff’s bargaining power through the insurance companies because – again this bears repeating – he was the one who paid the insurance premiums for the last 50 years, not the Defendant (okay, I’m making up the 50 year thing – you get the point).

The Indiana Court of Appeals cited Griffin v. Louisiana Sheriff’s Auto Risk Association, 802 So. 2d 691 (La. App. 2001) to underscore Plaintiff’s argument:

This rationale can best be understood by analyzing the write-offs in two situations: one in which a tortfeasor injures an uninsured victim and the other in which the same tortfeasor, in the same manner and to the same extent, injures an insured victim. Unless the write-offs are considered collateral sources, the tortfeasor would be relieved of his liability to the insured victim to the extent of the amount of the write-offs. The argument that there is no underlying obligation for plaintiff to pay the amount of the write-offs and, therefore, the plaintiff should not be allowed to benefit from a non-existent debt, fa[i]ls because the effect of this reasoning results in a diminution of the tortfeasor's liability vis-à-vis an insured victim when compared with the same tortfeasor's liability vis-à-vis an uninsured victim.

Another Louisiana case, Bozeman v. Louisiana, 879 So.2d 692 (La. 2004) tightens this analysis further:

If we were to permit a tortfeasor to mitigate damages with payments from plaintiff's insurance, [the] plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. [The defendant] should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.

The Indiana Supreme Court disagreed, relying on the fact that under the current system we have in this country, a doctor’s medical bills do not equate to cost. But this makes every medical bill unreasonable on some level. Should the law be that you cannot introduce medical bills because the whole system is screwed up? I just don’t think it makes any sense.

Continue reading "Collateral Source Rule Under Attack in Indiana" »

I read a series of articles in Trial Magazine on cross examining experts at trial. One article revolved around a joke the lawyer made and how everyone laughed, except for the expert. The moral of the article is that the expert’s failure to laugh at the joke “showed the witness’s pomposity” and was the “key to the jury acceptance of [plaintiff’s] experts and their credibility."

I’m sure the joke played as the author suggests. But a jury trial is typically not conducive to humor. I’ve seen many efforts at humor – including my own efforts that I thought at the time were good – fail miserably. This is particularly true in a shorter trial where the jury has not had an extended time to warm up to you and relax. Chris Rock would have a hard time being funny in an opening statement.

My advice: if you are not incredibly sure it is going to be funny, leave that club in your bag. Only an extremely funny person can get away with prepared humor during a jury trial. Not sure if you are extremely funny? You are not.

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" »

The 1st Circuit Court of Appeals wrote a helpful opinion for product liability lawyers who get the name of the defendant wrong when filing just before statute of limitations expires. The court elevated substance over form in finding the the claim "relates back" under federal law.

The case involves an incredibly tragic auto accident. A 1987 Mercedes-Benz 300SDL parked on an inclined street in Puerto Rico began rolling downhill and crushed and killed a six-month-old child. The plaintiffs' product liability lawsuit alleged that design of the Mercedes-Benz caused the child's death, alleging a "gallimaufry" of product liability theories against Daimler-Chrysler Corporation.

Continue reading ""Relates Back" Lawsuit Reinstated: New 1st Circuit Opinion" »

University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) the failure to reveal is intentional.

Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence "assuming that the spoliators ... destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence."

In other words, if the document or evidence indicates the worst possible scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. Of course, in Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.

I think many doctors who support medical malpractice tort reform will reflexively roll their eyes at the suggestion from a lawyer that we need another medical malpractice tort. But as a lawyer I would certainly support this rule in legal malpractice cases in Maryland. Similarly, I think a lot of Maryland doctors who want to rid the medical profession of dishonest doctors would also support a tort to punish doctors who deliberately destroy evidence and/or do not reveal to the patient that serious medical malpractice has been committed.

So what will happen with this bright idea? Absolutely nothing. The Maryland Court of Appeals is not in the mood to create a new tort in medical malpractice cases and it will be impossible to gin up the inertia in the Maryland General Assembly for anything that will impose new liability on Maryland doctors.

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.

The New York Times has a good article today on Independent Medical Examination doctors, including a doctor referred to by New York injury lawyers as "Doctor Says-No." We have a number of IME doctors in Maryland that must be related to him because they have the exact same last name.

The New York Times would not have written this story if it did not have examples of patients possessing the great weapon of the modern age: "I've got it on tape." The article has examples of doctors who told the patient one thing in the evaluation - which the patient's taped with their phones - and put the opposite conclusion in the report.

In Maryland, our lawyers are seeing a new wave of IME doctors replacing the old guard of discredited doctors that juries stopped believing long ago. Below are a few tools to fight for your clients to get fair defense medical exams.

My colleague John Bratt (author of the Baltimore Personal Injury Lawyer Blog) is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the very same conditions imposed against this same expert by a judge in another case we had with him in Montgomery County. In another accident case my colleague Rod Gaston has with the same doctor, the doctor was ordered to produce his financial records. Bizarrely, the insurance company withdrew the doctor but he still filed an interlocutory appeal. I'm looking forward to finding out who has been paying his legal fees for all of this. My bet: the insurance company.

(Note: I have fixed the New York Times link, as requested. Thanks to all for bringing it to my attention.)

Continue reading "IME Doctors Caught on Tape" »

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. "But I Didn't Do It!" Expanding Theories of Vicarious Liability, 58 Fed'n Def. & Corp. Couns. Q.347 (2008). You can't deny it is a catchy title.

It is a well-written article advising defense lawyers as to how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a good read for lawyers bringing truck accident cases looking to find coverage in the event of serious injuries.

Franklin offers one piece of advice I found particularly interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

In other words, set up another company in an effort to avoid liability.

Continue reading "Defendants' Truck Accident Lawyer's Advice: Set Up Another Corporation to Avoid Responsibility" »

The Daily Record has another article on the Exxon case in Jacksonville that I had blogged about yesterday. What was interesting, at least to me, is that one Plaintiffs' lawyer gave the closing and another Plaintiffs' lawyer gave the rebuttal. Even in large trials involving multiple lawyers for each party, I think this is a little surprising. But I don't think it is a bad thing.

Without reading the pleadings, I'm amazed that the punitive damages have gone to the jury. The Plaintiffs' attorneys have three hurdles to climb to get punitive damages: (1) the jury, (2) the judge, who still may rule against them, and (3) Maryland appellate courts, who most certainly will hear this case if Plaintiffs get past the first two steps.

Continue reading "Punitive Damages in Maryland: More on the Exxon Trial" »

The Maryland Daily Record has a blog post that discusses the much talked about Exxon trial in Baltimore County. I have not blogged about it because it is not a personal injury case and I really don’t have any particular insight into the proceedings.

But this Daily Record blog post from Danny Jacobs got my attention. In his closing statement, Steve Snyder frequently called Exxon on its behavior and challenged Exxon’s lawyer to explain Exxon’s response in his closing. Jacobs writes:

Sanders began his closing by laying down some ground rules — he would not answer every inaccuracy or claim unsupported by evidence raised by Snyder. “All that does is aggravate the confusion he has so skillfully created,” he said.

I have no idea what the “Vegas odds” are on this case. I really have no clue as to which side has better facts. But I really think the “Plaintiffs’ lawyer claims are so outrageous that I won’t even respond to them to avoid confusing you even though he called me out to respond to them” strategy comes with a lot of risk. This is particularly true if the Plaintiffs' lawyer - as in this case - has a history of eye popping verdicts.

I was trying an auto accident case recently where the Plaintiff’s lost wages were at issue. The Plaintiff did not have an “off slip” from a doctor. Instead, she took off work when she felt like her pain dictated taking a day off. On cross-examination, my client was grilled – over objection – about whether the medical records sitting at the trial table contained an “off slip” from a doctor. The client admitted - somewhat sheepishly - that no note was obtained.

In his State of the Union address in January, 2004, George W. Bush told the American people, “We do not need a permission slip to defend America." How much energy do you think the administration spent to come up with that line? When a metaphor comes out of the Republican machine – and the Democratic machine, too, to be fair – they gave it some thought. With respect to the Republicans, George Lakoff’s Don’t Think of an Elephant offers great analysis into the GOP’s careful consideration of the use of language and metaphors. Lakoff writes:

What is going on with a permission slip? He could have just said, "We won't ask permission." But talking about a permission slip is different. Think about when you last needed a permission slip. Think about who has to ask for a permission slip. Think about who is being asked. Think about the relationship between them.

Personally, a permission slip reminds me of being a kid which reminds me of fun. But I get the point. In my case, my client was a well-respected scientist. The notion of this near workaholic scientist needing a permission slip to take time off from work was more than a little ridiculous.

One bizarre transformation that occurs when a citizen becomes a juror is the development of a poker face. Something about that power that turns people into Mike McDermott. (“Listen, here's the thing. If you can't spot the sucker in your first half hour at the table, then you are the sucker.”) I would like a psychologist to write an article about this phenomenon.

Continue reading "Trial Tactics Tips from George W. Bush" »

We had put a sample trial transcript from a car accident trial in Charles County, Maryland on our website a few weeks ago. The sample transcript had some difficulties: the full transcript took too much time to load and specific sections were labeled by bates number instead of the actual numbers on the trial transcript. Anyway, we have sorted out all of this for those who want to see a sample transcript. (Note to those who vigorously complained about the mix-up: I’m very grateful for the heads-up on any error to the website or this blog. I often get suggestions/corrections and I really do appreciate it. But for some, it might be worth remembering that you are not a paid subscriber: it is all free!)

One of my verdicts from last year is on appeal and we will add this trial transcript, as well, when we receive it from the court reporter.

Generally, I dislike trying personal injury cases with high-low agreements that contain the size of the verdict. If you are going to force us to take the case to trial, I would prefer to have the chance of the upside. My gut level reaction is no deal.

But the problem with this bravado is clients. Our law firm has a decent volume of personal injury cases which means our lawyers are able to spread the risk of the possibility of a bad outcome at trial. Clients have just one case, so their risk calculus is very different. An added force of inertia for high-low agreements that tends to make the numbers more reasonable for injury victims is that insurance companies do want to limit the possibility of a verdict in excess of policy limits.

Continue reading "High-Low Agreements in Personal Injury Cases" »

The Maryland Daily Record reports that a personal injury settlement is not subject to garnishment for child support, according to the Maryland Court of Special Appeals opinion in Rosemann vs. Salsbury, Clements, Bekman, Marder and Adkins, LLC.

This action stems from an effort by a father to obtain child support from the child’s mother (which is not exactly the norm). The mother was injured in May 2005 when a flight attendant dropped a suitcase on her arm during a flight. Salsbury, Clements, Bekman, Marder & Adkins settled the accident claim for $30,000, and the father sought to garnish the settlement, which is how the law firm got involved in the case in the first place (a case I’m sure they regret taking in hindsight).

Continue reading "Garnishing Personal Injury Settlements in Maryland" »

Some advice from an article in Lawyers Weekly:

If the witness has to answer "yes" to anything during cross-examination, "make sure it is a very proud 'yes,' rather than looking like a deer in headlights when you're cross-examined. That way the jury won't think the opposing lawyer is scoring any points."

If the police come in my office and arrest me for murder as I'm typing this post, I'm convinced I would have a guilty look on my face as they hauled me out of here. The same holds true with many witnesses: they have the "You got me on that one" look on their faces even when asked a question like, "Your social security number is 123-45-6789, isn't it?"

The take home message is that if you have a client like this when you are preparing for cross examination - and you are only going to be able to know if you do a live cross - it makes sense to remind the witness not to answer as if the defense lawyer has just scored a big point. But there is one caveat: some people just can't help it.

Pat Malone put on his website a closing argument he made in a Maryland medical malpractice case. In his final thoughts to the jury, he reminded the jurors of what I always remind jurors of when I'm delivering a closing: the memories of the victim will fade for you and for me, but this person is going to live with these injuries for the rest of his/her life.

In this Montgomery County medical malpractice case, the jury awarded $5.8 million for the wrongful death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain. The jury awarded $3 million in non-economic damages, including $1 million each to Plaintiff’s widow and to his estate and $500,000 each to Plaintiff’s two children. That portion of the award will be reduced to $812,500 due to Maryland’s cap on non-economic damages in medical malpractice cases with at least two claimants. Plaintiff is expected to appeal arguing the unconstitutionality of Maryland’s cap on damages generally and the specific portion of the cap that applies to medical malpractice cases.

Wisconsin Lawyer (via Overlawyered via JuryVox) has an interesting article on the impact a juror’s political bent has on the amount of damages awarded in personal injury cases.

The study contained 476 mock jurors who identified themselves as either Democrats or Republicans. The jurors participated in mock trials for cases involving a personal injury, product liability, or medical malpractice and were divided into four basic categories of damages, which were determined based on how much they actually awarded during a mock trial: no damages, low damages, medium damages, and high damages.

The results indicated that being a self described Republican or Democrat was not predictive of the damage award. In fact, 22.3 percent of self-described Democrats awarded no money damages, while 20.8 percent of self-described Republicans awarded no money.

Does this mean Plaintiffs’ personal injury lawyers should ignore information, assuming the lawyers have access, about a juror’s party affiliation? No. In spite of this broad finding indicating that there are no differences between Democrats and Republicans, even the study does not suggest that party affiliation is not a variable to consider. Moreover, the study found that many stereotypical Republican attitudes from jurors do lead to lower verdicts. But the study highlights that nuanced personal views are more helpful in projecting damage awards than mere party affiliation.

Continue reading "Republicans and Democrats and Jury Awards: Does Party Affiliation Matter?" »

We have added to the Personal Injury Lawyer Help Center a list of mediators in Maryland handling personal injury cases.

Our law firm uses this list when someone suggests mediation (or arbitration) just to get a feel of who is out there doing these mediations. Some of these mediators we have used before and highly recommend. Others on this list we specifically would not recommend (at least for plaintffs' accident and medical malpractice lawyers) or have never used and simply heard they conduct mediations. So, again, this is not a suggested list for plaintiffs' lawyers or defense lawyers. (I feel like I'm saying the same thing over again; I just want to be clear that we are not endorsing anyone on the list.)

Moreover, there is no criteria to be on this list. If you are a mediator or arbitrator in Maryland and you want to be added (or removed) from this list, email Claire@millerandzois.com with the subject heading "Maryland Arbitrator/Mediator." But please do not request to be added to the list if you have not mediated or arbitrated any personal injury cases in Maryland in the last few years.

Many of these mediator/arbitrator list are former judges. They have not been identified as judges for fear that we did not properly designate a retired judge.

Reuters reports that the family of a man killed in a stampede of frenzied Christmas shoppers on Black Friday filed a wrongful death lawsuit against Wal-Mart in New York.

This is a very public case. It is going to be hard to find a juror that has not heard about it. Many will also already know when they go to sit in the jury box that a wrongful death lawsuit was filed within three business days of the accident. What does that tell the jury? The jury's determination of negligence may hinge on analysis of facts and systems and procedures at Wal-Mart that could not have been discovered when the lawsuit was filed? Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case? Could the lawyers have settled the case for more than fair value without filing suit because Wal-Mart did not want the publicity of a lawsuit?

I don't know the answers to these questions. What I do know is that the only harm in waiting to investigate the full facts of the case before filing a lawsuit is that the lawyers are delayed in making their big splash filing their high profile lawsuit. I'm not suggesting that is why a lawsuit was filed so quickly here because it could have been done for a number of reasons, including the insistence of the family. But these "5 minute after" lawsuits don't help the clients and also don't help the general public perception of personal injury lawyers or their clients.

Risk & Insurance had an interesting article about “scientific perspective” in predicting jury verdicts. The premise of the article is that the quality of jury consultants varies wildly because different jury consultants use different methodologies. In the litigation world, there are no barriers to entry for those who seek to be jury consultants. The only thing you really need to do is put the words “jury consultant” on your business cards. As a result, many jury consultants are “amateurs in terms of their training” to predict jury behavior.

The author believes - I think correctly - that accident and malpractice lawyers often make choices based on who the lawyer likes (and respects) as opposed to the jury consultants’ credentials and background in the science of predicting juror behavior.

As a result, the variable quality of jury consultants leads to mixed results on the efficacy of jury verdict research. Accordingly, settlement decision makers (plaintiffs’ lawyers, defense lawyers and adjusters) often question the reliability of research when coming up with a dollar figure for dispensing with a case, and end up instead making major decisions on gut instincts (see also: George W. Bush).

The author, Courtroom Sciences’ National Director of Litigation Consulting, George Speckart, contends that these gut decisions create losses that are more expensive than the costs of scientific jury research.

Continue reading "Jury Consultants: To What Extent Does Methodology Matter?" »

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert on the psychology of how jurors process requests for damage awards that I think is of interest to accident and malpractice lawyers.

I found of particular interest his theory that consumers – and by implication jurors – have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we tend to use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower that $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon a great deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. Of course, this does not prove the efficacy of per diem arguments but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I began to notice a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.

Back to the original topic: I think the precise number is also applicable in the settlement of personal injury cases. I think an initial demand of $485,000 is higher than an initial demand of $500,000 because you are cueing a great deal more flexibility in round numbers. Of course, at some level, if your initial demand is $482,542.56 and you do not have a logical reason why you arrived at such an exact figure and just made up that number, you are cueing that you are an idiot.

• Picking a Jury in Maryland
• Per Diem Argument
• Voir Dire in Maryland
• More on Voir Dire in Maryland
• Using Focus Groups
• David Ball's New Book on Damages

John Bratt has a Baltimore Injury Lawyer Blog post about a defense lawyer asking a question in an auto accident case for the sole purpose of embarrassing a witness. The question had no relevance to the accident or the Plaintiff's injuries from the accident.

It is hard for a lawyer to ask questions that intrude into a person’s painful or embarrassing moments even when they are relevant. I asked questions as a defense lawyer in wrongful death cases that I still feel ashamed of to this day. I still remember exactly how it feels to ask an AIDS patient or his family questions about the patient's sexual practices. Awful. But I was obligated to do it because it was relevant to how that person contracted AIDS.

In John's case, I can't imagine what goes on inside the mind of a lawyer who clearly does not have to ask a question like this but does so, anyway, for sport to embarrass or humiliate another human being.

I’ve always said you can tell a lot about a person by the way they treat the waiter. You can also tell a lot about the type of person a lawyer is by the questions they ask the victim in deposition.

In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: "The 'slippery slope' argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way."

I like this metaphor. My problem with slippery slope arguments, is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.

Believe me, I know plaintiffs' lawyers have made the slippery slope argument as well. I have myself. But it seems like more of an argument I hear from defense lawyers.

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

The Baltimore Injury Lawyer Blog has a post about a settlement John Bratt had just before trial in a car accident case this morning. The blog discusses the timing of settlement offers and how settling accident cases on the "courthouse steps" - particularly in small and midsized cases - is probably not in the best interests of the accident lawyer, the client, the defendant, or the insurance company. The only clear cut winner is the defense lawyer who gets to bill the file to the fullest without having to risk getting a bad outcome he/she has to explain to the client.

I hope I am not overplugging the Baltimore Injury Lawyer Blog. But I like the blog a lot and want to expose the Maryland Injury Lawyer Blog readers to it. John is doing something I should do more often: offering actual war stories from the trenches that other Maryland accident lawyers will find of interest and can use in their own practice.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I actually agree with it.

In light of Enron and other business collapses that left stockholders holding the bag without any real picture of the financial condition of the company, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just with respect to attorneys’ fees but with respect to the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will be able to use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase "extort settlements." But I do think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it does tip off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. Moreover, I’ve been involved with mass torts from both sides and believe knowledge of the true value of the case is rarely known even to the insiders until the advanced stages of the settlement process.

I appreciate the concerns of investors wanting to know the exposure imposed by lawsuits. I just think the downside of stacking the deck against the companies in a product defect case by requiring them to show their hands to products lawyers is not worth the tradeoff.

Voir Dire in Maryland is often a difficult experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers were able to glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not really knowing anything about who is on their jury. I’ve written a little bit about this problem in a previous Maryland Injury Lawyer Blog post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get a bit more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured due to someone else’s negligence, do you think you would bring a lawsuit?

I would add something to the effect of “if the claim was not resolved to your satisfaction” but I think this is a great question that we have not requested. I know a lot of judges in Maryland who are not going to allow this question or anything like it that diggs too deeply into opinions. But I think it is a great question to put on your proposed list of voir dire.

The second idea Ms. Koch mentions that I think is a great idea is that you ask the judge if the lawyers can give each juror a print out of the voir dire questions to encourage more responses. While this makes a lot of sense to me, there are two practical problems. First, it is rare to have a copy of voir dire that satisfies the judge and the defense lawyer because usually questions are taken from both lawyers’ voir dire. Second, while it does make sense, it is a bit outside the box so you risk annoying the judge just like you risk annoying the waiter when you make four modifications to the dish you order. Whether the latter problem is worth the trouble will depend on the judge you draw.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County that was filed as a result of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be pretty sure that absent some insane finding, the appeals court is going to defer to the trial judge. This is why I’m surprised this case was appealed in the first place.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to file suit anywhere where venue is proper.

One other thing I got out of the case is something I think I already understood but is worth noting: the denial of a motion to transfer a case would be interlocutory and not immediately appealable but the affirmative order of a transfer is subject to immediate appellate review. I don’t think we have ever appealed a forum non conveniens transfer simply because we never had a case where we thought the transfer was an abuse of discretion. But it is still good to know.

Our lawyers have long believed that professional expert witnesses’ financial information, including their tax returns, may be discoverable and admissible for the purpose of showing potential bias. Yesterday, the Alaska Supreme Court joined the list of jurisdictions that agree with us.

Noffke v. Perez is a car accident case wherein a wife and husband were awarded $54,000 and $24,000, respectively, by an Anchorage, Alaska jury. On appeal to the Alaska Supreme Court, the defendant claimed that it was error for the trial judge to require her expert witness to produce income tax records. Reading between the lines, it seems that after a motion to compel the records was sought and granted, the defendant’s expert did what many hired medical experts do after an order to produce their records: they refuse to testify.

The Alaska Supreme Court found that there might be a “plausible argument that the witness generates such a significant portion of his or her income from a particular side or particularly attorney that the expert’s impartiality can reasonably be questioned” making this information discoverable and admissible (emphasis added with joy).

The problem I have is that there are a number of doctors who are “Med Mutual doctors” or “State Farm doctors,” the folks that these insurance companies turn to when they need a doctor who is willing to go out on a limb to take a tough position. I do not believe I am being a cynic. This is just reality. To be willing to take this quantum leap from objective doctor to advocate doctor, these experts usually want to be well compensated. To be fair, this happens to some plaintiffs’ experts too, but I think this happens to a lesser extent. If for no other reason than the insurance companies have more of a market share than individual plaintiffs’ lawyers, increasing their leverage over experts. Our law firm has never called an expert to testify at trial who was personally financially beholden to us – insurance companies do it all of the time. (If I'm wrong about this, defense lawyers should join hands with me on this issue.)

Accordingly, it is fair game to question how much money they have made from (1) legal related work generally, (2) from a specific lawyer, law firm or company, and (3) how much money the expert makes overall. Why does the expert’s total income matter? Because without that information, it is easy for an expert to claim that, while he might make $200,000 a year doing legal work, it is a small portion of his income. To put that in fair context, the jury should know just what that portion is.

Unfortunately for these plaintiffs and their personal injury lawyer, Alaska Association of Trial Lawyer President, Michaela Kelly Canterbury, this case was reversed, but on other grounds (excluding certain medical exhibits and failure to give a comparative negligence instruction).

You can find the Alaska Supreme Court decision here.

The biggest intangible dealt with by personal injury lawyers in settling or trying a personal injury case is noneconomic pain and suffering damages. These damages defy ready conceptualization and the law provides little in the way of assistance to jurors who make the final call in the end.

In many of our personal injury cases we have used per diem reasoning to juries to articulate pain and suffering damages. Per diem arguments give some tangible basis for a pain and suffering award. In psychobabblespeak, per diem arguments are a form of anchoring -- the cognitive phenomenon of the tendency of people to make estimates with a value in mind. After an anchor is established, there is a bias toward that value to the exclusion of other evidence.

Critics of per diem or other mathematical formulas contend that it manipulates jurors, and is designed to implant in the jurors' minds specific figures and amounts, without a solid evidentiary foundation, to influence the jurors to adopt those figures and amounts in evaluating pain and suffering and measuring damages. This argument ignores the fact that there is never an evidentiary foundation for how to value pain and suffering. Moreover, how is it manipulating jurors to suggest a value pain by the hour or day when defense lawyers have full opportunity to argue why such a valuation is unreasonable? Some jurisdictions have bought into these arguments and have prohibited per diem arguments, which I think is completely unfair to victims who should be able to have their lawyers argue their pain and suffering any way the lawyer and the client deem fit.

Interestingly, some plaintiffs’ lawyers disagree with the efficacy of using per diem arguments. Some point to a study that found that only 23% of jurors said they would defer to the pain and suffering award suggested by the trial lawyers and only 40% would even consider the information in determining damages. But I also read somewhere that 92% of the people surveyed think campaign advertisements have no impact on the way they vote. In other words, I don’t think we can be believed when we are asked what influences us. Besides, if 40% of jurors are considering what you are saying, that is still a lot of jurors whom may not only be able to persuade other jurors, but may also be able to argue that position during the jury's deliberations.

In his book, Damages, David Ball suggests a related argument in closing that turns the tangible to intangible: “Total up the number of extra hours your client is forced to spend on the usual daily tasks of living such as dressing, eating, washing, toileting, getting to and from medical and therapy appointments, shopping for special need items, etc. If brushing his teeth used to take him three minutes but now requires six, and he brushes his teeth three times a day, that’s nine extra minutes a day just to brush his teeth. If that was eight weeks with a cast on his arm, that’s nine minutes times seven days times eight weeks, totally more than eight hours – just for brushing his teeth. If the injury is permanent and there’s a 35-year remaining life expectancy, the total is nearly 2000 hours.”

Under Ball’s paradigm, intangible, noneconomic damages are converted to tangible, economic damages by simply giving him his hourly wage for the total extra time he needs to spend, giving jurors larger economic anchor to use as the basis for their award. Ball also notes that this argument gives a personal injury lawyer a decent shot with “tort reform” minded jurors.

This is a great strategy in the right case. But, using David Ball’s words, pain is often the worst harm in the case. The per diem argument I think gives personal injury lawyers a chance to receive a favorable jury verdict for the pain their client endure.

There is another good blog post from the Drug and Device Law Blog this time regarding electronic discovery with respect to on-line diaries and the social networking like Facebook and MySpace. I have not had this issue arise with one of our clients but it is only a matter of time. Anything on there inconsistent with plaintiff's complaints is going to be used against them (as it should in most cases).

Speaking of which, you can find my Facebook profile here and my Linkedin profile here. If you are on Facebook or Linkedin, add me to your list of friends.

The case of Titan v. Advance was decided yesterday by the Maryland Court of Special Appeals. Titan is a case where the Plaintiff alleged negligent repair of a roof that led to the clogging of a roof drain, which then resulted in the flooding of the Plaintiff’s premises on Eastern Avenue in Baltimore, Maryland, at Crown Industrial Park. After a three day trial, the jury found in favor of the Defendants.

As you might have expected, the amount of rain after the job was completed was relevant. Defendants introduced, over objection, a certified copy of the U.S. Department of Commerce’s weather reports from Baltimore-Washington Airport, which reported rain patterns at the airport between the day roofing work was done and the date of the flooding off the roof. Plaintiff objected that the weather at Baltimore Washington Airport on that day was not relevant because it was 10 miles from the site.

The Maryland Court of Special Appeals, in an opinion by Judge Arrie W. Davis, found that the documents were relevant because the parties disputed the amount of rainfall. The court further found that in spite of the length of the documents, the jury could reasonably interpret the recorded rainfall amounts and no expert opinion was needed to explain the documents. As to the 10 miles between Baltimore Washington Airport and the site of the property, the court concluded this went to the weight of the evidence as opposed to admissibility.

Interestingly, the Plaintiff filed a claim with its own insurance company, Hartford, who paid some, but not all, of Plaintiff’s damages claim. Specifically, it did not pay all of Plaintiff’s business interruption loss. Plaintiff originally sued Hartford who prevailed on the always raised, but rarely used, affirmative defense of accord and satisfaction. As a part of the settlement in which Hartford paid a nominal amount, Hartford released its subrogation claim in this case.

In another issue of interest to personal injury lawyers, the question of when the existence of insurance can be introduced was also at issue. In most accident and medical malpractice cases where the client is being sued individually, plaintiffs want to get into evidence that the defendant has insurance to cover the claim. In Maryland, under Maryland Rule 5-411, generally evidence of liability insurance is not admissible. In this case, Plaintiff was cross-examined about its dealings with Hartford. Apparently, one of the Plaintiff’s agents made assertions to Hartford inconsistent both with Plaintiff’s contentions at trial and statements the agent was now making. The court found that the plain language of Maryland Rule 411 makes clear that evidence of insurance is admissible when offered for another legitimate purpose.

Certainly, the trial court did not commit reversal error in admitting this evidence. Usually the court will make every effort to shield the insurance issue from the jury by encouraging a stipulation that the statements were made, but still not disclose to the jury that they were made to an insurance company. In this case, given the context of the quoted testimony, it would have been very difficult to mask from the jury that there was underlying property insurance.

This is a worthwhile case for Maryland personal injury lawyers to read, both on the issue of admissibility of insurance, and with respect to the admission of weather reports, although the case does not break any new ground. You can find the Titan v. Advance here.

Last month, retired Howard County Judge Dennis M. Sweeney wrote an article in a series of articles he is writing for the Daily Record. The latest article discusses voir dire. One point Judge Sweeney makes is that judges have an aversion to proposed voir dire questions that seem to be uniform in every case the lawyer tries. In my last trial, the defense lawyer did not change the names of the parties from the voir dire that had apparently been cut and pasted from the last case. Judge Sweeney writes that they may poison the trial judge to ignore specific voir dire questions – usually put at the end of voir dire consistent with cut and paste practices – that may have more merit.

The article also points to dicta in Landon v. Zorn, 389 Md. 206 (2005), a failure-to- diagnose medical malpractice case in which the Plaintiffs appealed a defense verdict. The basis for the appeal was the trial judge’s refusal to ask whether the jury panel had any “preconceived opinion or bias or prejudice in favor of, or against Plaintiffs in personal injury cases in general and medical malpractice cases in particular?” The Maryland Court of Appeals affirmed in a unanimous opinion written by Judge Clayton Greene, Jr. that it is the responsibility of the attorneys to “propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential ‘bias or prejudice’ against plaintiffs in personal injury or medical malpractice cases.” But as Judge Sweeney notes, the court did indicate that the lower court may have had an obligation to include a question more tailored to the plaintiff in that particular case if requested by the attorneys. Judge Sweeney went on to say that this “places counsel in the position of having to ask the question in many different formulations to hit on the one that may be correct and specific enough.”

But Maryland trial judges love to rush through voir dire as it is so I shuttered to imagine giving multiple formulations to these judges. I wrote to Judge Sweeney and asked if he had any solution to the Landon v. Zorn problem of having to ask the question in many different formulations to find the most appropriate, noting my concern about how multiple formulations of the same question might risk annoying the court.Judge Sweeney offered this practical response:

“I agree with you that putting multiple formulations in the voir dire could be counter productive if the judge is not receptive. Perhaps, a better way to handle it is to have the alternate formulations ready to propose if the judge tells you he will not ask the first proposal. Sometimes making the question more focused or narrow will get a judge to ask a question on the subject even if the question asked is not your first preference. If you feel strongly that the issue is one of great importance in picking an unbiased jury, I would not simply let a denial go by without communicating that feeling to the judge and providing him or her with an alternative formulation. You can even invite the judge to fashion his/her own as long as it fairly covers the issue. Obviously you have to pick the case and the issue carefully.”

It sounds like this solution gives Maryland lawyers the best shot at getting the court to pick a helpful voir dire question while also providing a legitimate appellate issue if a legitimate question is refused.

I’ve never conducted voir dire in another jurisdiction but I observed voir dire in other states. The difference is amazing - as different as checkers and chess. Do you think we should have more extensive voir dire in Maryland? I asked Judge Sweeney that as well:

“My answer is that it depends. We pick juries quickly in Maryland and there is a benefit in that, but obviously we want fair juries. My experience has been that jurors are incredibly conscientious and work hard to reach a fair decision. I don't know that putting prospective jurors through a lot more questioning is going to improve juries. However there are cases where it would probably be better to have additional questioning on issues of potential bias. I would not want to abandon our very efficient system which I think is generally fair in the process. It is also important to remember that jurors are basically forced labor given the pay they receive which is next to nothing. We should not waste their time or invade their privacy more than we absolutely need to get a fair jury.”

I’ve always been in favor of more elaborate voir dire because I really believe there are a small minority of jurors that plaintiffs are never going to be able to get to no matter what the facts. To a lesser degree, I’m sure there are also some jurors that defendants do not have a fair shot to persuade. So I think a process of more open-ended questions would give lawyers an opportunity to flush out more dogmatic thinkers and I think the current process favors defendants in personal injury cases. But, obviously, Judge Sweeney is right that there are judicial economy issues that strongly favor the current process and the mere asking of more questions is not going to weed out many biased jurors.

Thank you to Judge Sweeney for taking the time to share his thoughts with me.

No blog post today on the Maryland Injury Lawyer Blog but I did put up a post today on the Trial Lawyers Resource Center Blog discussing the circumstances under which a videotaped deposition of an expert might be preferable to bringing the expert live at trial. You can access that post by clicking on the link above.

One notable absence from the Maryland Personal Injury Lawyer Help Center has been a sample demand letter, an omission I rectified today. One of my goals in 2008 is to make the Help Center a more complete resource for personal injury lawyers. Most of what we have added in the last year has been by request, so if there is something you want to see, drop me an email and we will put it up. If you have something you want to add to the Maryland Personal Injury Lawyer Help Center, send it to me, and if we think it will be helpful, we will put it up.

(Since I wrote this post last week, I've gotten a number of requests for more demand letters in cases that are not motor vehicle torts. Yesterday, I added second sample demand letter in a products' liability and legal malpractice case.)

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff's case is that he had few doctor visits before complaining of the soft tissue injury upon which the claim was based. The Defendant's biggest weakness was their liability defense never actually made any sense. The Defendant was, however, very old and very sympathetic. Because the jury is never told insurance is going to pay the claim, you have to expect this to be a factor in the amount of the recovery even if they do suspect there is insurance behind the Defendant.

The jury found for the plaintiff, but awarded only a little over $16,000. State Farm was thrilled, and I was depressed for a few days. They won and I lost. That is how we both saw it and marked our scorecards accordingly. But here's the thing: State Farm only offered $5,000 on the case. It underscores how unreasonable State Farm's offers can sometimes be when it views a jury award of over three times their offer to be a success.

I shouldn't single out State Farm. We have "lost" a lot of trials were the verdict was a great deal higher than the last settlement offer, particularly in smaller cases in difficult venues. (If you are not a Maryland personal injury lawyer, Anne Arundel County is a relatively affluent county whose juries are considered conservative, particularly in cases that involve subjective complaints of pain without any positive diagnostic findings.)

A part of the reason why insurance companies don't feel compelled to make fair offers is because too many personal injury lawyers do not want to try the case - they take the settlement offer. If more personal injury lawyers held the insurance companies' feet in the fire and made them try cases where the offers are unreasonable, we would have many fewer unreasonable offers. Of course, we settle a lot of cases where the offers are unreasonable, because the client does not want to go to trial. But I think too many lawyers convince their clients to settle personal injury cases that really should be tried.

I have expressed my disdain for Maryland’s cap on non-economic damages many times on the Maryland Personal Injury Lawyer Blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Moreover, Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of the nature of some injuries that are specific to women. A "soccer mom" who suffers an injury requiring a hysterectomy, for example, may result in little economic harm. Accordingly, restricting or limiting her non-economic damages may result in an insignificant award of damages.

In my mind, this is one more intellectual dagger into an idea that is not logically defensible. Now it appears that non-economic damage caps are not only discriminatory towards people who are the most seriously injured, it is also discriminatory to women. Although I do not have a lot of hope, the Maryland legislature should really hold hearings on the efficacy of the cap and its impact on a small minority of injury victims that need the system’s protection more than anyone.

(I found this article in the adjunct facility office at the University of Baltimore Law School after teaching my class. I looked on-line at the University of Baltimore Law Forum’s website, but it is not yet available.)
Related Posts

My partner, Laura Zois, and I both received emails last week from people who pointed out that defense lawyers are using the Maryland Personal Injury Lawyer Help Center, specifically some defendants’ motions that are on the site to put the sample plaintiffs’ motions in context. One lawyer expressed a great deal of surprise that this information is provided at no cost.

We do not mind that an unintended byproduct of the Maryland Personal Injury Lawyer Help Center is better educated, better armed defense lawyers. In the big picture, efficiency and justice in personal injury cases are best served when both sides are well prepared. In the information age, there are many resources available to become a better personal injury lawyer and better advocate for our clients. One of the great things about the Maryland Personal Injury Lawyer Help Center is that it is a free resource anyone can use.

Over the next month I’m going to be adding more materials. If anyone has a sample motion, deposition, pleading, or something you think would be of use to the Maryland Personal Injury Lawyer Help Center, send it to me at ronmiller@millerandzois.com. If I think it would be of help, I will post it. If you send the document in Word format, I’ll include a link back to your website, provided you have one and would like me to do so.

One new bill that came out of Annapolis this year, and is set to become Maryland law on October 1, 2007, is aimed at limiting one of the predatory insurance practices: the “don’t hire a lawyer and I’ll give you a quick settlement” tactic. Among the major auto insurance carriers in Maryland, I do not see GEICO, Allstate, or State Farm doing this aggressively or systematically; Nationwide does it a good bit; and Progressive does it with absolute zeal.

This bill will not limit the practice itself but it will give injury victims not represented by a Maryland lawyer the opportunity to void any release signed within 30 days of an accident within 60 days provided certain conditions are met such as providing written notice and, of course, returning the proceeds.

To Progressive’s credit, it does not appear that they are nearly as aggressive in very serious injury cases, but it amazes me to hear from my personal injury clients the lengths to which Progressive will induce quick settlements in smaller cases. Progressive adjusters show up on the injury victims’ doorstep (apparently every adjuster is smiling and friendly) with a checkbook eager to “make this thing right.”

Most Maryland personal injury lawyers do not want to admit this, but while it is always the safest play to contract an injury lawyer after an accident, smaller injury cases can often be settled without a lawyer. Personal injury lawyers do add value to smaller cases but often it is not much more than the contingency fee the lawyer charges. Because insurance companies generally put a value on the quality and reputation of a plaintiff’s personal injury lawyer, I think our law firm adds value well above our fee in small personal injury accident cases. But do you need to hire our law firm or another lawyer in smaller cases? I think it depends on the case but, often, the answer is no.

I certainly have respect for Progressive as an insurance company. I like almost all of their adjusters and I do not think this “quick settlement” practice is unethical; however, in my opinion, Progressive is the last insurance company I would expect to make a reasonable offer in a “quick fix” situation. If I were to give all of the major insurance carriers in Maryland the exact same case, I would expect Progressive’s offer to be the lowest. It is generally a struggle for accident victims with or without personal injury lawyers to get Progressive to offer fair value without filing a lawsuit.

Early on in the development of the case point no one knows the actual value of the case because the extent of the injuries and the harm from those injuries is still unknown. Accordingly, almost invariably, any early settlement is imprudent. Why do people take a quick settlement then? Because some injury victims are either naïve or they need money fast. Arguably, then, this new Maryland law could go further and make all quick settlements voidable. To what extent should society protect people from themselves? This is a political and philosophical question beyond the scope of the Maryland Personal Injury Lawyer Blog, but I think this law probably strikes the right balance by providing some protection for accident victims while also giving insurance companies some ability to rightfully be able to settle smaller personal injury claims without waiting for an indefinite period of time before they can close the claim.

It is a slow blogging week. I will relock and reload after Labor Day. I did write two blog posts for the Trial Lawyer Resource Center on loss of consortium claims that you can access here and here.

One-hundred percent of our law firm’s practice is personal injury cases. We do not and will not take any defense cases even if we believe in the defendant’s case. Yet, last year I found myself on the other side of the coin as a defense expert. I served as a legal malpractice expert for a local defense firm on behalf of a plaintiffs’ personal injury lawyer in Towson. I believe this lawyer did not breach the standard of care according to his version of the facts (and, parenthetically, I believe the most logical version of the facts). Certainly, in this case, under the Plaintiff’s version of the case, the lawyer committed legal malpractice.

While I did not have the slightest trepidation about taking this case or the expert opinions I expressed, it was certainly an odd experience to be back on the defense side for the first time in over six years. Regrettably, from an experience standpoint, the case settled before I had the opportunity to be deposed. It would have been a particularly educational experience, because the legal malpractice lawyer who would have deposed me is a skilled and well prepared lawyer, who would have been effective in challenging my opinions. Taking a different role in a case certainly does change your perspective, and I think helps you think more creatively about your cases. (Similarly, I have been a law professor for over 10 years. It would be interesting to be a student again after all of the exams I have graded over the years. I think being a professor would make me a better student.)

Believe me, I am all in favor of plaintiffs’ personal injury lawyers suing other personal injury lawyers when one of us has breached the standard of care. The whole idea of lawyers "sticking together" is both absurd and wrong. Our lawyers handle legal malpractice cases where the underlying case is a catastrophic personal injury case. But I also think there is an obligation to be willing to come forward and testify on behalf of a fellow personal injury lawyer if you believe the lawyer has not breached the standard of care and committed legal malpractice.

The Maryland Trial Lawyers Association Auto Negligence section is having a seminar Friday, September 7, 2007 in Columbia, Maryland at the Hilton Hotel. The subject of the seminar is bad faith law in Maryland with a focus on the new first party bad faith law. The following Maryland lawyers/judges are expected to speak:

Robert J. Zarbin (The Jaklitsch Law Group in Upper Marlboro, Maryland)

Thomas E. Dewberry (Chief Administrative Law Judge, Maryland Office of Administrative Hearings headquarters in Hunt Valley, Maryland)

Irwin E. Weiss (Law Office of Irwin E. Weiss in Baltimore, Maryland)

Lawrence M. Schultz and Mark Jenkinson (Burke, Schultz, Harman & Jenkinson in Martinsburg, West Virginia)

Michael Weiss (Weiss & Saville, P.A., in Wilmington, Delaware)

James R. Ronca (Anapol Schwartz in Philadelphia, Pennsylvania)

If you are a Maryland personal injury lawyer and you have not joined the Maryland Trial Lawyers Association, you should do it today. If you are handling automoblie accident cases, you should join the Auto Negligence section as well.

Last week, a well respected defense lawyer told one of our lawyers that they had obtained the Maryland Trial Lawyers Association's “Handbook," which spells out the terms for a defense requested medical examination. This "Handbook" has made its way into a Motion to Compel a Physical Examination, specifically including this "MTLA Handbook" as an exhibit to the motion. By way of this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.

Now back to reality. Maryland Trial Lawyers Association does not have a "Handbook" on defense medical exams. Instead, it is just a copy from the Maryland Personal Injury Lawyer Help Center of the link from our website setting forth our suggested conditions for a defense medical exam. I think it is funny that this is being represented as some sort of guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them "Miller & Zois" motions.

There is also a motion for sanctions for failure to appear for a scheduled medical exam. As I indicated earlier, my law firm likes and respects this lawyer and his firm, but this motion really annoys me. I could throw out 5 reasons why, but only one really matters.
In Maryland, and also under the Federal Rules of Procedure, a defense medical exam is not a matter of right and may be obtained only by an order from the court.

So let's get this straight: Defendant's lawyer sets a date for a DME, unilaterally by the way, just assuming the Plaintiff has no life and lots of time on her hands, for which the lawyer has not obtained a court order, and then files a motion to compel when she does not present for the medical examination. Huh? The motion also fails to mention that the discovery deadline - by which time all discovery disputes should be resolved - has long since passed.

I wrote a blog post today for the Trial Lawyer Resource Center regarding an article I read in the Maryland Daily Record titled "Beware of Bow Ties and Diamonds in Court." You can access it here.

I spent a good bit of time this weekend making additions to the Maryland Personal Injury Lawyer Help Center. What I have done is pull up old emails that requested forms/documents that we have (and forwarded to the requester) but did not have a category on the PI Help Center that really fit the document. So I added a miscellaneous forms and letters category. So far I have added (1) Sample Release, (2) Sample Retainer Agreement (the most requested), (3) Sample HIPPA Authorization, (4) Sample Lost Wage Form, (5) Sample AISG Form (to get client's claim history), (6) Sample Personal Injury Intake, (7) Sample Request for Traffic Light Sequence Report, (8) Sample Affidavit of No Insurance, and (9) Request for Judical Notice as to Time, Speed and Distance.

If there is something you need you think our lawyers may have, let us know and I will be glad to send it to you. The readership of the Maryland Personal Injury Lawyer Blog has gone up dramatically in recent months and it is pretty much impossible to play phone tag with everyone in order to find out the document you seek. Please contact us with any requests through the contact form on this blog or email me at ronmiller@millerandzois.com.

We are handling a red light/green light auto accident case that occurred in Towson, Maryland a few years ago that resulted in substantial permanent injuries to our client. Trial is a few months away. The insurance company for the Defendant is the Maryland Automobile Insurance Fund (MAIF). Their attorneys recently filed a motion to bifurcate the trial into two separate trials for liability and damages.

The Defendant would not seem to benefit if the case is bifurcated. The concern raised by Defendants – the cost and effort of the liability case – is of no consequence to the insured Defendant. So, practically speaking, why was this motion filed?

If the case is bifurcated, the chance of a bad faith claim against MAIF evaporates; it would simply offer its $100,000 (an extremely large policy for MAIF, parenthetically) policy limit in the event Plaintiff prevailed on liability because, as Defendant’s motion tacitly concedes, this value of the case is in excess of MAIF’s coverage. Accordingly, while bifurcation would be a loss for Plaintiff, it would also be a loss for the insured Defendant who will lose any leverage that he has to encourage MAIF to settle this case or any claim he has against them for bad faith should they not make reasonable efforts to settle the claim. Should the case be bifurcated and Plaintiff prevails on liability, Plaintiff will proceed on with the damages trial that will likely result in an excess verdict. This would leave MAIF in fine shape, fully insulated from a bad faith claim and protected from allegations that it failed to properly defend its insured by, for example, having a defense medical examination performed on the Plaintiff. Defendant would be left holding the bag.

This takes us back to the flip title of this post: Who's your daddy? What are the chances the Defendant’s lawyer, who was hired and paid for by MAIF, advised his client of these personal risks to him when seeking bifurcation? When defense lawyers serve two masters, or sticking with the pop culture theme, two daddies, conflicts abound. Every defense lawyer in Maryland knows that these conflicts have to be resolved in favor of the client, not the insured.

Most insurance company lawyers our attorneys work with walk this delicate balance well. Obviously, I do not have all of the facts and, of course, there could be facts of which I may not be aware that would change the analysis, most notably the unlikely event that MAIF told the client or his attorney that it would cover any verdict in excess of the policy limits. But, somehow, I doubt it. There is no question that the tripartite relationship between the insured, insurance company and the insurance defense lawyer is complicated. But the insurance defense lawyer owes a paramount duty to his client even if the insurer hired him and pays his bill. While most insurance lawyers are mindful of this duty, it is still way too often forgotten.

Goal number one when your client is giving a deposition is to do no harm. The greatest harm your client can do in almost any personal injury case in his/her deposition is to get caught in a lie. Clients are most prone to "lie" about prior car accidents because they genuinely do not remember them. But a smart insurance company lawyer may turn an innocent failure to recall into a litmus test on the client's credibility. In the end, as much as we as personal injury lawyers like to make the cases about ourselves - particuarly when we get a great verdict, we all do it - the importance of our credibility/likability is a distant second to the importance to that of our client.

How can you solve the problem? Obviously, a good lawyer spends time before the deposition discussing the issue with the client, explaning in very direct terms that prior medical history or claims history will be uncovered by any competent defense attorney or adjuster with access to a computer and/or the medical records. But, again, in some circumstances, the client may not remember whether they were injured on the job or made a claim for a car accident in which they were involved.

The backup to your client's best recollection is to have your client fill out a claims index so you can have access to the exact same information as the insurance company. American Insurance Services Group (AISG) is the company our lawyers use but there are others that do the same thing for the same price. For twenty-five dollars, you can get a full claims history for your client, putting the personal injury lawyer on par with the insurance company in terms of information about prior accidents and claims.

It is also worthwhile for the lawyer to compare the information obtained from the client during the intake to his index form. If the client said this is his first accident and the claims report says he has had 5 previous car accidents where he has made claims, you know you have a problem.

My partner, Laura Zois, spoke today in New Orleans at the annual AAJ (formerly Amercian Trial Lawyers Association) Jazzfest seminar on auto torts. Many in the audience had questions after her presentation. She said that almost a third of these lawyers asked her for an AISG index form. I have attached a copy here if you would like a copy of the form.

I stumbled on a Metro Verdicts Monthly from last year that examined the success plaintiffs have at trial in slip and fall cases on snow and ice. In Maryland defendants prevailed 62% of the time.

The difficulty in these cases often lies not with the issue of whether the defendant was negligent, but whether the plaintiff assumed the risk because he/she appreciated the danger of walking on the snow/ice. Under Maryland law, this is assumption of the risk, unless the plaintiff lacked the free will to avoid the danger. This is presumably the case when going to work, entering or leaving your home, and tending to other necessities of life. Moreover, the fact that no reasonable alternative path was available does not reduce the free will standard.

Last week, the Maryland Court of Appeals decided the case of Morgan State University v. Walker. In this case, Plaintiff Pamela R. Walker, brought a personal injury lawsuit against Morgan State University alleging that it negligently failed to remove snow from a parking lot during the last great Maryland blizzard in 2003. You know how the story goes from here. Plaintiff was visiting her daughter, walked across the icy parking lot and severely fractured her leg, resulting in about $50,000 in medical bills and, presumably, a permanent injury.

The Baltimore City Circuit Court (I’m not sure who the Judge was) found that Ms. Walker assumed the risk as a matter of law and granted summary judgment to Morgan State University. The Maryland Court of Special Appeals reversed, finding that the voluntariness of Ms. Walker's action was a question for the jury. The Maryland Court of Appeals disagreed with the Court of Special Appeals, and agreed with the Baltimore City Circuit Court’s finding that Ms. Walker assumed the risk of her injuries. While I doubt it was integral to the court’s opinion, the court did note that Ms. Walker had been wearing Timberland boots and stated that “I don’t have any problem with walking or anything like that. Actually, I’m a daredevil to be honest with you.” I cannot imagine Ms. Walker’s attorney was enjoying that testimony at her deposition. You don’t want your client professing to be Evel Knievel (or maybe David Blaine for you younger folks) in a case where the issue is whether you assumed the risk of your injuries.

My partner, Laura G. Zois, tried a case in Anne Arundel County for a slip and fall during the same blizzard as Ms. Walker. The Plaintiff in that case was walking along a common area sidewalk that was not cleared and fell, fracturing her left wrist. Plaintiff incurred $6,554.72 in medical bills. The Defendant made a settlement offer before the trial of $18,750 (State Farm was the insurance company). The jury awarded our client $370,577.

The salient difference between Walker and our case is that our client was walking to her home from her car after working as a neonatal nurse at St. Agnes Hospital. Ms. Walker, on the other hand, was visiting her daughter, a noble endeavor but certainly not one where Plaintiff can argue that she had no choice but to make that trip.

The take home message for Maryland personal injury lawyers handling slip and fall cases in snow and ice is that you have to carefully consider the facts before accepting a case. The Baltimore lawyer in this case was no doubt seduced by the fact that Ms. Walker had a good damages case. There is no question the woman was seriously injured. But Maryland law is tough on these slip and fall cases on ice and snow and each case has to be carefully evaluated to make sure that the prospective client did not assume the risk of his or her injuries.

I wrote a blog post for the Trial Lawyers Resource Center today on listening to insurance adjusters during settlement negotiations, as well as a few other random thoughts about settling personal injury cases. You can access that post here.

When I received an advertisement for a book on Deposing Difficult Doctors by Florida personal injury lawyer, Kim Hart, the title certainly caught my attention. The advertisement included excerpts from the book. What caught my interest is the notion of videotaping “independent” medical exams (IMEs). The book makes two arguments in favor of videotaping IMEs:

1. “If you make it a practice to videotape all compulsory medical examinations, you soon will have videotapes of most of the doctors used by the insurance companies in your area. Give your client a copy of a previous videotaped compulsory medical examination and the transcript from the examination of the doctor who is scheduled to examine her. This will take all the mystery and surprise out of the situation and help calm your client’s fear of the unknown.”

2. “A defense-oriented CME [I assume this stands for compulsory medical exam] doctor often plays Mr. Nice Guy at the examination. He will make sympathetic statements to your client such as, “I can see you have suffered a lot” or “I can tell that this injury has had a serious effect on your life.” If a physician is two-faced and projects Mr. Nice Guy at the compulsory medical examination but Attila the Hun at trial, showing the jury a tape of the examination can communicate to them instantly what a scheme he is.”

I thought these arguments were interesting. It is not a regular practice for Maryland personal injury lawyers in Maryland in car accident and truck accident cases to videotape defense medical exams. I also do not know how a Maryland court would view an injury plaintiff videotaping the medical examination as a precondition to that exam.

Moreover, I am not sure I fully accept the logic articulated in support of the efficacy of videotaping medical exams. I agree that it would be helpful to have a library of tapes for a lawyer’s personal injury clients. But it is very possible that Dr. Jekyll will maintain the nice guy persona he committed to during the examination and give a more complete examination than the doctor otherwise would. I do not often see Mr. Hyde at trial, most doctors doing defense medical exam work get the gig by being able to attack injury victims’ claims in an avuncular way. Moreover, if the injury victim overreaches or otherwise presents poorly in the video, that will be preserved for all time. Still, I think this is an interesting idea. If anyone has any thoughts about it, I would appreciate your input.

My partner, Laura Zois, conducted a videotape trial cross examination of frequent flyer defense medical expert, Dr. Robert O. Gordon, a doctor who makes a great deal of money working for insurance companies generally and, frequently, for State Farm. During his examination, he spewed out a whole host of inappropriate and factually incorrect statements. Here is an example:

Q. And why not, Doctor? Would you explain the reasons for your opinion?

A. Well, first of all, there was nothing in the emergency room report, or in the report of the doctors that he was sent to by his attorney, that indicated that --

The client's testimony was that he went to his family doctor first and was referred by his family doctor to the orthopedic surgeon. But Dr. Gordon has been doing this so long he assumes that someone did. The first thought is to file a motion to strike this testimony. But doesn't his incorrect statement just underscore that he is not only a testifying doctor but an advocate? Isn't it better that a jury sees this?

Here is another example:

A. No. Why don’t you ask -- this Maryland Orthopaedics how many patients they see at the request of attorneys every day?

A. If you want to get rich doing -- . . . -- medical legal work, that’s what you do.
Plaintiffs move to strike this testimony because

Ignoring the rich irony of a man making hundreds of thousands of dollars testifying, Dr. Gordon's lashing out at another health care provider again underscores he is an advocate for the insurance companies. Why not let the jury hear that?

Here's a few more exchanges:

Q.Okay. Who do you have as your staff?

THE WITNESS: -- charge for things called therapeutic exercises. And what some of these places do is they -- and particularly the doctor owned facilities -- is they buy an exercise bicycle and they’ll put the patient on an exercise bicycle and they’ll charge them “therapeutic exercise.” It just means riding on an exercise bicycle, which -- which is a bit -- is a bit preposterous. I mean, they get - the bicycle can be paid for in a week and then the rest of it is just -- that’s why doctors who do this kind of work can be on the golf course and making a fortune.

Isn't this just incredible? After this, Dr. Gordon may as well come up to the lectern and try the case along with defense counsel. It is not that far of a stretch after this testimony. You can see the entire deposition transcript here. It makes for a great read.

This was not a large case. It was originally a District Court (small claims) case that got bumped up to Prince George's County Circuit Court because the Defendant filed for jury demand. A Prince George's County jury awarded $22,000 which was more than twice the offer State Farm made. Did Dr. Gordon's testimony figure into the verdict? Who knows? But the point is that many personal injury lawyers would have sought to exclude that testimony simply because they could. It is hard for lawyers to resist fighting a fight the lawyer knows he/she can win. Instead, it is better to figure out first whether the otherwise inadmissible and over reaching statements hurt or help you case. In this particular case, I think the testimony helped our clients' case (and amused the jury from an otherwise boring video of the doctor's testimony).

Evan Schaeffer's Illinois Trial Practice Weblog blogs today about a post in the Psychiatrist Blog indicating that witnesses are highly suggestible depending upon the words lawyers use in describing an auto or truck accident. I find the psychology of this very interesting and this blog post makes for a good read. The take home message: words matter.

I wrote a blog post for the Trial Lawyers Resource Center discussing this same issue of the words selected when it comes to describing a personal injury victim's injuries. You can find that blog post here.

The National Law Journal reports that a small number of personal injury lawyers are relying on handwriting experts to help the lawyers in selecting juries. Handwriting analysis uses various clues, including the amount of pressure used, the size and angles of the letters, and spaces between words to paint a picture of a potential juror.

Maryland personal injury lawyers have no opportunity to see the handwriting of prospective jurors. But personal injury lawyers in other jurisdictions have the opportunity to review juror questionnaires that would provide a handwriting analysis. I remember reading somewhere that handwriting that is flamboyant and flowery would be preferable to the personal injury lawyer's client than tight, concise and analytical. (I'm not sure what someone would make of mine because it is illegible!) But if I practiced in a jurisdiction where I had the opportunity to see the jurors handwriting, I would want to see a study really on point before spending a lot of resources analyzing their handwriting.

CNN reports on an 18 month investigation into minor-impact soft-tissue injury crashes around the country. The report confirms what auto accident lawyers in Baltimore and around the country have known for quite some time: the insurance companies defend these cases not based on the value of the cases, but in an attempt to discourage auto accident lawyers and victims from bring a claim.

You can read more here about Colossus, the computer system discussed in the article that directs the process of making offers in auto accident cases. Since the mid-1990s most of the major insurance companies - led by the two largest, Allstate and State Farm - have adopted a tough take-it-or-leave-it strategy when dealing with most auto accident cases. The result of this strategy has been billions of dollars in profits for insurance companies and little, if anything, for the public, according to Jeff Stempel, a University of Nevada insurance law professor. Stempel further stated that “We can see that policyholders individually are getting hurt by being dragged through the court on fender-bender claims, and yet we don’t see any collateral benefit in the form of reduced premiums even for the other policyholders." He goes on to say that he thinks that "this kind of program is in my view institutionalized bad faith.”

My last blog entry was a rambling diatribe about how desperately we need first party bad faith in Maryland. But I do not agree with Professor Stempel that insurance companies' decisions to aggressively fight claims is tantamount to bad faith in every case. The insurance companies have a right to take a tough posture, particularly in the third party context. Our personal injury lawyers' job is to fight back when they do. I do not think we deserve a free ride in third party cases.

In Maryland, in cases where the policy limit may be exceeded, most insurance companies will notify their insured that there is a risk that the verdict will exceed their policy limit and promise to pay any excess verdict. (Plaintiffs' lawyers nickname the letters based on the insurance company slogans: you would get a "good neighbor" letter from State Farm; a "good hands" letter from Allstate.) So my feeling is that in the third party context, if the insurance company is willing to pay any excess judgment, they should be able to do whatever they want.

Where injustice does come into play in Maryland in auto accident cases is uninsured motorist cases. Today, insurance companies are not obligated and do not act fairly to their own insureds in Maryland. This is where I believe that insurance companies should be obligated to take off the gloves and deal with their customers in an even-handed manner. They are required to do this in most states. Hopefully, they will soon be required to do so in Maryland. If you agree with me, write your state senator and local delegates as this battle will be waged in the Maryland legislature in Annapolis in the upcoming months.

No new post on the Maryland Personal Injury Lawyer Blog today. But I did just post a blog for the Trial Lawyer Resource Center about questioning at deposition adverse witnesses in auto and truck accident cases who claim your client was speeding. To access that blog post, click here. To see sample deposition transcripts in auto accident, truck accident, and medical malpractice cases, click here.

Evan Schaeffer's Illinois Trial Practice Weblog has a link to a company that provides online mock juries. I find the idea fascinating. Evan correctly points out that a virtual mock jury does not give the lawyers the benefit of the give-and-take argument among jurors that is meaningful to the process. I also think you lose something using jurors with different demographics. If a lawyer is going to try a case in Baltimore City, the opinion of a woman in Omaha might not be helpful. In fact, the fact that all of the jurors are somewhat "Internet savvy" might make them unrepresentative of certain jury pools. Still, for the $1500 cost, I can see where some lawyers looking for information as to how jurors might respond to certain issues might gain some benefit from this process.

One thing is for sure: the Internet will continue to change the practice of personal injury lawyers in ways that we cannot currently contemplate.

I received an email from a personal injury lawyer in Baltimore last night asking about a liability dispute case the lawyer has. I thought I would respond to him in today's blog.

This lawyer's client filed suit pro se for his property damage claim, which will be heard next month in Baltimore City District Court. The lawyer knows that you can settle a property damage claim and later file an action for bodily injuries. See Maryland Insurance Article Section 12-306(2). So the lawyer's preference is to stay out of the property damage case and let the client move forward on his own.

But there is a res judicata effect to a judgment on the merits of the property damage case. If the client gets a verdict in the property damage case, his personal injury case will be barred (assuming there is no jurisdictional barrier to prevent the plaintiff from bringing all of his claims in the property damage case).

The rule against splitting a cause of action does not mean that a plaintiff may never split a cause of action. It means that if a cause of action is split, certain consequences may follow. A person involved in a motor vehicle accident may incur both personal injuries and property damages. This plaintiff may bring an action for one aspect of damages and not the other, but the prosecution of that action to judgment will preclude a subsequent action for the remaining type of damage. See Jones v. Speed, 320 Md. 249, 259 (1990).

This prohibition against splitting a cause of action is because Maryland courts want to avoid the costs and expenses that will come with more than one lawsuit on the same set of facts. While I am sure this is not the news this lawyer wanted to hear, this rule makes sense. Accordingly, the lawyer's best option now is to file a motion in the client's property damage case seeking to dismiss the case without prejudice. Another option would be to file a case in Baltimore City Circuit Court along with a motion for consolidation.

When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said that 90% of cases are decided in opening. I do not believe it is actually this high, but that number has always stuck in my head.

It is a great marriage because Laura believes you win by effectively cross-examining defendant's expert and delivering an effective closing statement. When we have been successful trying a case, we both claim (to ourselves, of course) credit for the victory. It works out great.

Accordingly, I am going to blog a bit more over the next month or so about opening statements and direct examinations, starting today with direct examinations generally. I was looking today at Ralph Adam Fine's The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.

To illustrate his point, Fine uses an example from John Grisham's The Runaway Jury (a really stupid but entertaining movie), picking up the story where plaintiff's personal injury lawyer is examining the witness, a former high-level tobacco-company employee, about a long-missing document that demonstrated the tobacco companies in the book/movie knew that nicotine was highly addictive.

"Q: And the next paragraph?"

"A: The writer suggested [to the president] that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine meant more smokers, which meant more sales, and more profits."

Powerful testimony, but Fine contends that many of the jurors will miss all or some of it because of the call of the lawyer's question, in this case "And the next paragraph?" But the manner in which many personal injury lawyers ask this question on a direct is by asking "What happened next?" type questions. Instead, he argues that lawyers should break down the components instead of letting the witness dump them all on the jury in one large package because not all jurors are paying attention at every moment. Instead he suggests questions such as:

Q: Did the writer of that memorandum suggest that the company do something about the nicotine levels in the cigarettes it was making?

Q: Did the writer suggest that the nicotine levels in the cigarettes be increased or decreased?

Q: Did the writer tell the company's president how increased nicotine levels would affect the number of people who smoked?

Q: Would increasing the nicotine levels in cigarettes mean more or fewer smokers?

Q: More smokers than if the nicotine levels were not increased?

Q: Would this mean more or fewer sales?

Q: Would this mean more or less profit for the company?

Q: Would the profits be substantial?

This accomplishes three things:

(1) The jurors will know the answer even before the witness responds. This will cement these building blocks of the lawyer's argument in the jurors' minds, without relying on their own assessment of the credibility of the witness.

(2) The logical connection between increased nicotine levels and higher profits is made in small, incremental steps. Every lawyer knows that jurors fade in and out, you do not want to sneak attack the critical points of your case.

(3) It allows the lawyer to repeat the juicy stuff that the lawyer wants to resonate with the jury.

I think lawyers elicit some answers on foundation that make a "what happened next?" question harmless and helpful for the flow of allowing the witness to get out what he/she has to get out. But the moral of what Fine is saying is when a lawyer's witness is spitting out the critical or even important testimony, the lawyer should make sure a carefully worded question (yet not leading) elicits that response that allows the plaintiff's attorney to underscore the testimony the witness is offering. I will be vigilant to make sure I do not make this mistake in my next trial.

A part of the reason for the need for "what happened next?" type questions is that the lawyer is not in rhythm with his/her client. The solution: get in sync. How? By listening to your high school coach, music teacher, etc. Practice, practice, practice. I have always been amazed at how few personal injury lawyers take the time to make sure their direct examination goes smoothly. The solution to the problem is to keep doing it until you both have a rhythm. "What happened next?" often comes as a result of both the client and the lawyer not being prepared to work together to tell their story. The client stops where the lawyer does not expect him/her to so the lawyer continues the story by asking a "what happened next?" type question. If you practice, it improves the flow and helps solve this problem.

I am trying to spend some time before the new year making quality additions to the Maryland Personal Injury Lawyer Help Center. Today, I added a sample direct examination outline my partner Laura G. Zois put together for an accident reconstructionist in a wrongful death car accident case in Baltimore City.

I will try to put up more tomorrow...

If you are a personal injury lawyer who regularly tries cases you have at some point in your legal career, encountered a witness, most likely defendant's medical expert, that you just cannot effectively cross examine even if your technique of cross-examination is sound.

After you walk back to the trial table with your tail between your legs, what do you do? I found an old 1988 ABA article that shows how one lawyer handled in closing argument the witness that the lawyer could not effectively cross examine at trial.

In this espionage case where "Cannon" is alleged to have left a container of microfilmed defense secrets in a telephone booth outside the bar to be picked up by a Russian agent, the defenses are alibi and mistaken identification. The witness is Special Agent O'Rourke of the FBI who had been staking out the bar and gave a positive identification of Cannon as the woman he saw in the booth. Here is the transcript of the relevant portion of his closing argument:

"You remember that Agent O'Rourke -- Special Agent O'Rourke -- from the FBI. You saw what a frustrating time I had with him. I cross-examined the man for an hour and a half. And I never laid a glove on him. I never touched him. (Editor's note: Incredibly gutsy to admit this with such a critical witness, don't you think?) Every time I thought I had him where I wanted him, he would slip away. No matter what question I asked, he had some slick answer. He was ready for me and he slipped away.

I wondered where I had seen that man before.

Now understand that I did not know this O'Rourke. No one had ever introduced him to me. I had never met the man. I had no idea he was going to testify in this case. I had never talked with him before. No one had even pointed him out to me. But when I asked him questions, somehow he seemed familiar. Somehow I knew I had seen him before.

I grew up on a farm in Alabama in the 1920s. And I want you to know that entertainment -- the kinds of things that we think of as entertainment -- was scarce on a farm in Alabama in the 1920s. We had no television because there was no television to be had. We did not even have a radio in my house until I was 16. We went to movies every two or three months if we were lucky. Mainly we entertained ourselves. We played catch and baseball and other games outside. And we waited all summer long for the County Fair.

I don't mean the State Fair. We didn't have the money to travel to the State Fair. I mean the County Fair. They held it in September after the heat of summer, and they held it in the county seat.

They had some rides they brought in on wagons and set up, but it was a small fair, so the rides were mainly for the little kids. Then they had games like the one where you throw a baseball at a pyramid of wooden milk bottles and try to knock them over. We knew that all the games were fixed. We knew that those bottles had lead weights in the bottom so that they would be hard to knock over, but we tried anyway. And we would pay to take a swing with the big wooden sledge hammers and try to ring the bell.

But there was one game I remember especially that all the teenage boys wanted to play. You would pay 10 cents for a chance to win $10. They would take a little pig, and grease him up from head to toe with axle grease. And they would put him in a pen. For 10 cents you could get in the pen and try to catch the pig. If you could catch that pig -- and hold him -- you would win $10.

I paid my dime and when it was my turn I got in the pen and tried to catch the pig. When he ran by, I quickly reached out with my hand and grabbed his leg -- and he slipped away. I wrapped my arm around him, and he just squirmed one time and he was gone. He squirted out of my arms. I jumped on him and tried grabbing him by the ears. He shook his head and ran away, and I was left lying on the ground. No matter what I would do, that pig would slip away every time I thought I had him.

That's where I've seen that O'Rourke before. He's just like that greased pig."

Like many great stories, the jury knows where the story is going. But if told right, it is one of the most effective parts of the metaphor. The jury anticipates it is coming but they still wait to hear the punch line. Even knowing it is coming, they laugh when the line comes. But the best part of this closing is the final line that changes this from a really good closing story to a great one:

"Now what I want to know is who greased him up that way."

I love this line for two reasons. One, from the story telling standpoint, it makes one more telling point the jury did not expect as it saw the punch line coming at a time when the lawyer certainly had the jury's attention. But perhaps more importantly, maybe O'Rourke came across as a decent guy, he was an FBI agent after all. This line takes the sting out of the personal attack on the witness while still maintaining the benefit of the metaphor to discredit the witness.

Good stuff.

I wrote a blog post for the Trial Lawyers Resource Center on defending your client's deposition that you might find of interest.

The Greatest American Lawyer Blog also makes a point that I did not make that I think is important in the bigger picture of deposition preparation about letting your client be himself/herself. I would add one more big picture point. While many personal injury lawyers will tell clients to fight showing that they are nervous, I think the opposite rule works better: just relax and do not fight being nervous. Defense lawyers to some degree, but particularly juries, are thoughtful consumers looking for "value" as they sit in judgment in personal injury claims. Juries - and even insurance companies - are willing to pay significant compensation to individuals who have been seriously injured in an auto accident or by medical malpractice. But good consumers that they are, jurors want to get something for their money - to help a real person they can relate to who has suffered these injuries. Almost invariably, human beings asked to speak in a formal setting are going be apprehensive. Attorneys, judges and juries understand this. In contracts, unctuous plaintiffs who are smooth as silk from jump street raise red flags. Personal injury plaintiffs are expected to be nervous, particularly in the beginning of their testimony. So our lawyers' advice to clients is to relax, do not worry about it. The truth is what will matter in the end, not whether you are nervous.

For sample depositions, click here.

I came across a Health Law Week article last night about an Illinois appellate court ruling in which the court found the trial court committed reversible error when it refused to submit to the jury a special interrogatory sought by the defendant doctor's medical malpractice lawyer to test the jury's position on the foreseeability of the patient's injury.

The case was a wrongful death medical malpractice claim against a doctor and a hospital. The jury found both were negligent in failing to treat and care properly for the decedent who committed suicide while a patient at the hospital and awarded Plaintiffs $1,212,000.

On appeal, defendant doctor’s attorney argued that the trial court erred in its refusal to submit the following special interrogatory to the jury: "Prior to the death of the Decedent, was it reasonably foreseeable that she would commit suicide or act in a self-destructive manner on or before December 6, 1997? Yes ___ No ___."

The Illinois appellate court reversed, finding that the medical malpractice defendants were prejudiced because a negative answer to their interrogatory would have been inconsistent with the general verdict against them.

It is hard to comment on whether this is an appropriate ruling in this case without seeing what the jury instructions were. But I would think that an Illinois jury would have received some sort of foreseeability instruction. It would seem unfair to require a special interrogatory as a matter of law on the verdict sheet. Using this logic, every element of plaintiff's malpractice case should have to be spelled out on the verdict sheet. I would think this is best left to the sound discretion of the trial judge. Click here for some thoughts on foreseeability law in Maryland.

A difficult question arises when the defendant in a car or truck accident case argues that his vision was obscured due to factors beyond the driver's control. For example, if a truck driver driving a tractor trailer is blinded by the glare of the sun or the driver's vision is obstructed by a dust storm. Is this a legitimate defense in a truck accident case?

Maryland law does not have a case directly on point. But the answer appears to be a question for the jury, not for the court, according to a majority of other jurisdictions. Most jurisdictions will not find a driver of a vehicle negligent as a matter of law in obstructed vision cases because the issue is one of reasonableness. Accordingly, I would expect a Maryland court to find that when vision is partially or completely obscured, the jury should determine whether the defendant's failure to avoid the accident was reasonable under the general negligence test of whether the defendant acted as a reasonable prudent driver would have under all of the circumstances.

Unfortunately, the byproduct of this rule is defendants' lawyers in Maryland personal injury auto and truck accident cases claiming that their clients violated the "rules of the road" through no fault of their own. How a Maryland jury might ultimately find is going to depend on the credibility of the lawyer's injured client and the credibility of the defendant driver. Even if the defendant has no credibility (either intrinsically or factually), it still gives the defendant's attorney something to hang their hat on for the purposes of denying the claim. Maryland personal injury lawyers who stick to their guns and believe in their case will probably do just the same in terms of final outcome for their clients in these types of attorney manufactured defenses. Lawyers who blink because the defense lawyer raises any type of defense - however specious - will not do as well, which is why defense lawyers manufacture artificial defenses in the first place.

Frequently, insurance adjusters, plaintiffs' personal injury lawyers and defense lawyers confuse two important concepts when a defendant driver is using someone else's vehicle: permissive use vs. negligent entrustment. I had an adjuster confuse the two last month during settlement negotiations so I thought I would write today about the differences between these two concepts under Maryland law.

Permissive use refers to whether or not the driver of a vehicle had the permission (either express or implied) of the vehicle's owner at the time of the automobile accident. Whether or not the driver had the owner's permission is an issue that affects whether there will be insurance coverage provided to the driver by the owner's insurance company. This issue usually does not affect who should be a defendant in a personal injury lawsuit in Maryland (but may affect who has coverage for the accident).

Negligent entrustment is a cause of action that arises when one party (the entrustor/owner) is held liable for negligence because they negligently provided another party (the entrustee/driver) with a dangerous instrumentality (car), and the entrusted party caused injury to a third party with that instrumentality. This cause of action is typically very hard to prove because it must be shown that a reasonable person in the owner's position knew or should have known of the dangerous propensity of the driver such that no reasonable person would have loaned them a vehicle. Usually, the driver must have had a conviction for reckless driving or some other serious offense(s). Many plaintiffs' personal injury lawyers make the mistake of pleading this cause of action every time the defendant driver is a minor and is using their parents' vehicle. Just being a minor does not make the driver an automatic dangerous propensity risk.

These two concepts are very different and, nonetheless, often confused. Permissive use is an issue which is often up for debate between the driver and the owner, whereas negligent entrustment usually just involves considering what the state of mind and knowledge of the owner was at the time that he or she loaned the vehicle to the driver. Our lawyers usually find it prudent to consider each of these issues separately, since very different facts need to be considered to show each.

Happy Halloween to all.

Last week, I received the following email from a doctor:

"I was looking through your website and I noticed that you talk about Colossus and its value for cases in your state. I hold the largest personal injury seminar in the southeast and our next Colossus Seminar is October 28th. You should not only bring your firm, you should also invite all the physicians that you work with. If your doctors do not know the value drivers to add in their medical documentation, then you cannot add them into your demands."

Okay, now if a personal injury lawyer asks a medical doctor who often sees the lawyer's clients to go to this seminar, what would the doctor say? How exactly does the lawyer frame that question? Gee, listen, can you take time away from caring for your patients to travel outside of Maryland with me to a seminar so you can best learn how to rig your medical records?

There are a lot of medical doctors our personal injury lawyers have come to know because the doctors regularly treat our lawyers' clients. Frankly, if a client does not have a medical doctor and/or has health insurance issues, we will often refer them to doctors who are willing to take their case and hold off pursuing payment until the case is resolved. But I do not know a single one of these doctors who would not be insulted to be invited to such a seminar.

I think it is important to understand how the insurance companies evaluate cases which is why I have written extensively on this topic. I also do not think it is a bad idea that health care providers have some general understanding of the process because patients can get inferior offers based on the specific wording in medical records as opposed to how that patient presented. But, in the end, personal injury lawyers and their clients have a remedy if the insurance company does not offer a fair settlement: a trial. My guess is that is you go to one of these seminars, you will find a lot of lawyers there who are settlement lawyers and not trial lawyers. Ironically, the insurance companies and their computers know who the settlement lawyers are and this devalues the attorney's personal injury cases more than the nuisances in the medical records.

Final thought: how much would you like to be the defense lawyer who is about to cross examine a medical doctor who just got back from a "How to Rig Your Medical Records to Get Better Offers from the Insurance Company" seminar with the personal injury lawyer who just did the doctor's direct examination?

More and more, personal injury lawyers in Maryland auto accident and truck accident cases are doing battle over the ‘independent’ medical examination. Attorneys argue over everything from who should conduct the examination, how far the plaintiff should have drive for the examination, to more substantive issues such as the examining doctor’s financial records. However, one thing that is occasionally overlooked by plaintiff’s personal injury lawyers is the fact that their client may have already had such a medical examination before they even became involved in the case if the case involves an uninsured motorist or PIP coverage was utilized.

Most insurance policies have a provision whereby the insurance company can ask for the policyholder to attend a medical examination with a physician of its choosing before any payments are made to the insured. This is can be used as a condition precedent to any insured receiving PIP benefits or uninsured motorist benefits.

The Maryland accident lawyer must be careful in cases where PIP has already been paid or where uninsured motorist coverage applies. Often, the insurance claims adjuster has a copy of the report complied by the insurance company’s doctor months or even years before it must be disclosed to the plaintiff’s lawyer (for example, before suit has been filed or before discovery answers are due).

These “condition precedent” type independent medical examinations give the insurance company additional discovery that they would not be entitled to once the case has gone to court, meaning more than one opportunity for a favorable report. Therefore, it is always a good idea for the plaintiff’s accident lawyer to subpoena not only the claim file for the case or suit they are involved in, but also the file of any previous adjuster handling a PIP or other file. Our lawyers at Miller & Zois have found that if you get these old files, sometimes the lawyer will get a copy of an independent examination that was favorable to your client, but was not divulged in discovery since it was “not part of the claim file” of your case. It is still discoverable material under Maryland law and could help make your case.