Articles Posted in Discovery

appellate court opinionBesides Kearney v. Berger, there was another interesting opinion that came down from Maryland’s appellate courts yesterday. The Maryland Court of Special Appeals ruled on an interesting discovery issue in a landlord-tenant case that has implications for Maryland personal injury lawyers.

The underlying case is a dispute between Checkers – I’m assuming it is the fast-food chain Checkers we are talking about – and its landlord. Checkers claimed it exercised an option to extend its lease. The case involved an estoppel certificate and a bunch of other things that I did not fully understand. Checkers sought documents from Gallagher Evelius & Jones (GEJ), a Baltimore law firm that represented the landlord. GEJ claimed a bunch of exceptions to the attorney-client privilege that were quite interesting. But the trial court never got to the merits of the argument because GEJ did not present its opposition to the motion to compel in the proper “set-up format.”
At first, I did a double-take when I saw the proper “set-up format.” There is a proper set-up format? But without knowing it, I think everyone here files their motions to compel in what the trial court saw as the proper setup format: setting up the controversy in the pleadings with the request, the response to the request, and the argument so the court is not required to flip back and forth between documents. I never thought it was a requirement and I’m still not sure that it is. But it seems like an excellent idea to avoid further annoying the trial court – usually rightfully so – that you have already annoyed with a discovery dispute.

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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 several IME doctors in Maryland that must be related to him because they have the 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 recent 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 is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the 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, they ordered the doctor 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

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 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 in getting a copy, click on this James Publishing link.

The National Law Journal has an article on the increasingly contentious battleground over the circumstances of “independent medical exams.” Victims’ advocates are increasingly battling over the terms and conditions of the plaintiff’s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors’ financial records. In the last 24 hours, we have had two separate disputes with defense lawyers we like and with whom we regularly cooperate. One involves the defendant’s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)

You can find the entire article here which includes a quote from me.

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Maryland has a recent law that went into effect this month providing for a few more hoops for car accident lawyers to jump through to get police reports in Maryland. The Maryland Transportation Article Section 20-110 sets forth new requirements in Maryland to get a police report within 60 days of the accident. The requesting party must provide (1) a valid driver’s license, (2) proof of your legitimate reason to get the police report, and (3) a notarized certification that for 60 days after the accident or incident you will not use the police report for commercial solicitation.

The bottom line is that you just can’t go grabbing police reports because you think you might find something interesting in there.

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). 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 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 they deposed me. It would have been an 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 unique role in a case changes 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 interest to be a student again after all 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 that involved a catastrophic personal injury case. But I also think there is an obligation 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 United States District Court for the District of Maryland has posted a Suggested Protocol for Discovery of Electronically Stored Information on its website.

The Maryland District Court’s website notes that this protocol, developed by Judge Paul W. Grimm and others considering recent amendments in the Federal Rules (click here for a good summary and analysis of the amendments), is a working model that the court has not yet adopted. Instead, the protocol should serve as a tool to assist lawyers in resolving disputes in an unknown area of discovery. The protocol may serve as the framework for developing local rules. The court has invited comments and suggestions from the Maryland bar to be emailed to

This is an atypical issue for tort attorneys, but electronic discovery can be an issue occasionally for medical malpractice lawyers looking to uncover a doctor’s communications with others about the chosen procedure or treatment plan. This is a far greater issue for products liability lawyers.

Last week, a well-respected defense lawyer told one of our lawyers they possessed 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 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 of the link from our website setting forth our suggested conditions for a defense medical exam. Which we don’t even use anymore!

I think it is funny that this is being represented as some 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.

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 moved to bifurcate the trial into two separate trials for liability and damages.

The Defendant’s attorneys would not seem to benefit if the case is bifurcated. Their concerns–the cost and effort of the liability case–is of no consequence to their client. So, practically, why was this motion filed?

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

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. As much as we as personal injury lawyers like to make the cases about ourselves – particularly 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 attorney spends time before the deposition discussing the issue with the client, explaining 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 it involved them.

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