Articles Posted in Litigation Strategies

Ask the average person or even the average lawyer what they think of forum shopping. Generally, it is viewed as a crime against the people. So let’s talk about “forum selection” instead.

Forum selection is clearly important, demonstrated by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons why forum matters so much. There are choice of law, capacity to sue, statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client’s claim.

It spite of all of the hand-wringing about the crime against the people for plaintiffs’ lawyers to have – gasp! – options as to where to file a lawsuit, Maryland law defers in some measure to plaintiff’s selection as the choice of venue if venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has

maryland death claims

Venue can mean everything in a personal injury lawsuit. 

repeatedly held that it is “the moving party who has the burden of proving that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let’s face it, the trial court has a lot of discretion on venue. A trial judge can pretty much ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the “weighs strongly” rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs’ lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don’t seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. In other words, if you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don’t understand this. Continue reading

Forbes, via Overlawyered, has an interesting article on Houston lawyer, Steve Susman’s efforts to covert lawyers on both sides of the aisle to try more jury trials… and make cases easier to try. How? Buy reaching stipulations on all of the dumb things lawyers argue about. .

Great idea that will never work in vehicle accident or med mal cases in Maryland. Why? Rule #1 of being an insurance defense lawyer for both in-house and outside counsel is don’t screw up by doing something outside of the box. For example, one suggestion Susman makes is to agree in advance not to depose each other’s experts. After a large verdict, every insurance company starts doing a CSI forensics witch-hunt. “You did not depose the trialplaintiffs’ experts. Why? Did you get permission for Jonathan P. Paperpusher for that decision?” Insurance companies are not promoting (in-house lawyers for car insurance companies) or doling out work to lawyers (outside counsel) who take outside-the-box risks that could backfire. Insurance companies give out a lot of love to singles hitters, but far less to home run hitters who occasionally strike out. Continue reading

The Maryland Court of Special Appeals issued an opinion last week in a case that should be read by every Maryland personal injury lawyer who is putting up or cross examining expert witnesses at trial.

In Yiallouro v. Tolson, the plaintiff was injured in a car accident while in the scope of his employment. The case went to a Montgomery County jury who awarded the the victim and his wife $925,000.

After the verdict, the trial judge made two conclusions that blew up the jury’s verdict. First, the judge concluded that he had made a mistake in letting plaintiffs’ vocational rehabilitation expert testify about plaintiff’s lost wages at trial – over $400,000 – because her opinions were speculative and without sufficient foundation. The trial judge also concluded that the pain and suffering damages were excessive and perhaps influenced by the testimony of the vocational rehabilitation expert.

expert witnessThis ruling put plaintiffs’ lawyer into a box: trial judges have a lot of discretion to vacate verdicts that the court deems excessive. So he did the only thing he could do: try the case again. He even got the vocational rehabilitation expert back, getting her past a Frye/Reed hearing.

The defense lawyers – channeling their inner Bill Belichick – did something real smart: they learned from the first trial. Most trial lawyers will tell you that accident reconstruction experts usually are a waste of time. The jury draws it own conclusions and ignores the expert, according to the conventional wisdom.

The defense lawyers in this case ignored this conventional wisdom and brought an accident reconstruction expert to testify about his measurement of ground distances and his estimations of speed, stopping time, and stopping distance—including his assumptions of average reaction times. Defense verdict. Contributory negligence. Game over. Riches to rags. Thankfully for the plaintiffs, the Maryland Court of Special Appeals, in an opinion by Judge Albert J. Matricciani, reversed the trial court, finding that the expert had been appropriately qualified.

Future lost wage damage claims present challenges because there are no way to determine the future and, on some theoretical level, an expert who offers future lost wages is guessing. Still, Maryland law allows for damages for future lost wages, if for no other reason than the incredible injustice that would ensue if the law just dismissed future lost wage claims as speculative on their face.

So plaintiffs’ lawyer used the three step game plan good accident attorneys use when claiming future lost wages. Get an expert opinion from an orthopedic doctor, have the voc rehab expert translate plaintiff’s limitations into lost income, and then have the economist give the jury the real value of the lost stream of income. Continue reading

LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.

There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, you have to get that out on direct. There are some jurors who – let’s face it – are going to view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.

Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) simply because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in the span of seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don’t say “Gee, we have a documented immigrant, let’s open up the checkbook” but they might discriminate against a plaintiff because they don’t think he/she belongs in this country. Doors don’t always swing both ways. Continue reading

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

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

jury4Plaintiffs’ attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that’s “down low” if you were not cool ten years ago), presumably with a pinky promise.

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

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


How to Write Demand Letters

We get a lot of cases from other lawyers who try and fail to settle personal injury cases. So I’ve seen everything from just sending in some of the medical records with no cover letter, to demand letters longer than Mr. Holland’s Opus (which, admittedly, I never read but it sure sounds long). Being a personal injury lawyer is hard work. There is no way around it. But the absolute worst kind of hard work is hard work that is actually counterproductive. I think some demand letters fall into that category.

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

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

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

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

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

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

I think he’s bluffing but I’m not 100% certain.  [2017: he was mostly bluffing.] Which, is exactly the point, of course. I don’t disagree with the settlement tactic in this exact situation. The man making the call is NBA commissioner David Stern who – getting ready for retirement – is almost certainly negotiating the last labor deal of his life. He will never get called out for bluffing and backing down again.david stern

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

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

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

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

These days, your selfie stick might adversely affect your claim as a plaintiff.

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

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

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

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

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