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Articles Posted in Maryland Courts

trial testimony skypeMaryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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maryland malpractice rule

Update: Stop the presses.  This rule has already been repealed.

We have a new rule in Maryland: Rule 1-322.2:

Rule 1-322.2 shall take effect and apply to all actions commenced on or after July 1, 2014, and insofar as practicable to all actions then pending.

(a) Certificate Required. Every pleading or paper filed in an action on or after July 1, 2014 shall contain either:

(1) a certificate of compliance with Rule 1-322.1 that is signed by an individual who is (A) the party filing it or an attorney for the party, or (B) if the paper is filed by a nonparty, the person filing it or the person’s attorney, employee, or agent; or

(2) in an affected action under Title 20 of these Rules, a certificate that complies with Rule 20-201 (f)(1)(B).

Cross reference: For the definition of “affected action,” see Rule 20-101.

(b) Action by Clerk. The clerk shall not accept for filing any pleading or other paper requiring a certificate under section (a) of this Rule unless the pleading or paper contains the certificate.

Source: This Rule is new.

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baltimore lead paint verdictThe Maryland Court of Appeals just affirmed a lead paint verdict against the Baltimore Housing Authority.  This is yet another case where a governmental entity sought the refuge of the Local Government Tort Claims Act.   Thankfully, the Baltimore Housing Authority could not avail causing brain damage to a child via this loophole, at least not in this case.

Facts of Case

The plaintiff lived in a Baltimore Housing authority for two years after her birth in 1995.   She was exposed, she alleged, to chipping and peeling lead-based paint.  Her lead level was 13 mcg/dl.  When I defended these cases in the ’90s, we would have rolled our heads at that number.  Now we know better.   A level like this can cause actual injury and can bring a large jury verdict in Baltimore.

The story from here is familiar.  The plaintiff’s mom noticed classic lead-related injuries manifested themselves early: attention issues,  delays in learning to read, and behavioral problems.  Plaintiff’s experts testified that she lost 5-7 IQ points.

The Baltimore Housing Authority put on its usual witnesses – Patrick Connor, Joseph Scheller, Joel Morse, etc. – to argue that the girl was not injured by lead-based paint.

The jury did not buy-in,  awarding $160,000 in future lost wages (which seems low) and $1.1 million in non-economic damages. Under Maryland’s cap for non-economic damages, this portion of the award was reduced to $530,000.  Why so low?  The injuries occurred in 1995 when the cap was much lower. Continue reading

maryland voir dire opinionIn Pearson v. State, the Maryland Court of Appeals earlier this month addressed the important question of which voir dire questions, if requested, must be asked of prospective jurors.  Why am I writing about it?   It might have important ramifications on civil personal injury jury cases.

The case’s facts are simply: Pearson is indicted and convicted for a narcotics offense.  On appeal, he argues that he has been denied a fair trial because he could not ask certain questions during voir dire.  Pearson claims that the trial court committed reversible error when it refused to ask the venire panel:

  1. if any member of the panel, or any member’s family, friend, or acquaintance had ever been the victim of a crime; and
  2.  if any member of the panel was ever a member of a law-enforcement agency or “kn[e]w anyone who is employed” by a law-enforcement agency.   Both requests had been denied by the trial court.
  3. Do any of you have strong feelings about [the crime with which the defendant is charged]?

Maryland only allows questions to be presented during voir dire if the question is “reasonably likely to reveal specific cause for disqualification.”  Maryland only recognizes two specific instances that comprise specific cause for disqualification: (1) a statute disqualifies a prospective juror or (2) a collateral matter is reasonably liable to have “undue influence over a prospective juror.”  Under the second category, which this case addressed, a matter has undue influence if it addresses biases that create a “demonstrably strong correlation” with a mental or emotional state that will improperly influence a juror’s decisions. Continue reading

uninsured motorist appellate opinion

New Uninsured Motorist and Jury Awarded Zero in Pain and Suffering Damages Opinion

Last week in Keller v. Serio, the Maryland Court of Appeals took yet another look at two issues that have been reoccurring leitmotifs in Maryland appellate opinions: (1) to what extent can we talk about uninsured motorist coverage in an uninsured motorist case and (2) whether a jury can award zero damages when all the facts suggested otherwise.  Keller is a motor vehicle negligence action instituted solely against the at-fault driver.   Negligence was conceded, and the issues at trial were confined to causation and damages. GEICO, although not a party to the action, realized the possibility that, as the plaintiff’s insurer, the plaintiff might get a verdict exceeding the liability coverage.  GEICO intervened in the case.  At trial, GEICO did the “UM potted plant defense” of just sitting at the trial table and doing absolutely nothing.   Plaintiff’s counsel alluded to GEICO during opening statements but thereafter did not mention the insurer, its policy, or anything about UM policies. At the close of the trial, the plaintiff’s counsel sought an instruction clarifying for the jury (a) how UM policies work and how they should not influence an award of damages and (b) clarify any confusion that may have resulted from GEICO’s presence at the trial.   The trial court refused the instruction.   The jury returned $29,355.69 in economic damages, yet $0 in noneconomic damages. That, folks, is what you call a bad verdict.  Plaintiff argued that such a breakdown of damages is inconsistent, illogical, and evidence that the trial court’s failure to give the UM instruction was reversible error.   No one can argue with the former part of that sentence.   It is illogical to say someone incurred nearly $30,000 in medical bills and did not suffer unless the evidence was that the Plaintiff was made of stone.  The question is whether it warrants nullifying the jury’s verdict and whether the uninsured motorist mess played out appropriately.  The Maryland high court said no and yes and shot down the plaintiff”s appeal.

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The U.S. District Court for Maryland made a noteworthy ruling in Jackson v. Johnson, a Maryland auto tort case that is an interesting case that involves federal diversity law and interesting plaintiffs’ lawyer tactics in finding their preferred venue for the case.

federal diversity law

Plaintiffs’ Venue Tactics on Full Display

The Battleground

Obviously, emails are hearsay evidence that are admissible at trial.  Donati v. State is a criminal case that teaches us a lesson in how to get an email into evidence at trial.

Emails are admissible in court.  You just have to know what the law requires to admit emails into evidence.  In medical malpractice and product liability cases, this is something you often need to do. This case shows us how to present an email at trial and get it into evidence.

The Facts of Donati v. State

If I will have to read a criminal case, I want some whacked-out facts.  This case delivers.

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immigration status admissibility trialI was in Florida after Christmas and missed the Maryland Court of Special Appeals’ opinion in Ayala v. Lee, a truck collision case in Anne Arundel County where the plaintiffs were two undocumented aliens who were rear-ended near Annapolis.

After crossing the Bay Bridge, the driver of the plaintiffs’ vehicle stopped the truck and clearly pulled onto the shoulder on Route 50 to fix a problem with the windshield.  They put half the vehicle in the grass, off the shoulder.  The driver also activated the emergency flashers.  In other words, they were doing exactly what they should have done under the circumstances.  After getting the wipers fixed, their truck was rear-ended by another truck.  The driver, who was with the Plaintiffs, was killed and the Plaintiffs themselves were badly injured.

This is a slam dunk on liability, right?  Somehow it goes to the jury on the question of liability. Continue reading

confrontational competitive attorneysMark Mixter and James Farmer are two Maryland tort lawyers that just don’t like each other.   There are lots of attorneys that don’t like each other.   Lawyers are probably more confrontational and competitive than your average bear.  If you doubt this premise, go watch a lawyers’ league softball game.   So add this natural tendency with the intensity of litigation and people will find reasons to get upset unless you are ultra thick skinned.  (One resolution of mine in 2014 is to develop some thicker skin all the way around.)

When these two lawyers fight, it goes deeper and litigation apparently follows.  The Maryland Court of Special Appeals recently affirmed the dismissed defamation, libel, slander, and intentional inflection of emotional distress claim that one had filed against the other.  You can find the opinion in Mixter v. Farmer here if you are interested.  Something about someone writes a letter to other lawyers saying disparaging things or something. I started to read it – mostly out of prurient interest – but I realized I must have something better to do.  (So I wrote this point instead?)

This is apparently the second case between these attorneys that has found its way to the Maryland Court of Special Appeals.   The last one involved a case that settled, but one of the lawyers became so mad that he sought and received a sanctions order against the other.   The appellate court reversed the order of sanctions.  So a lot of trees were burned and blood pressure was raised in a battle over a little more than $3,000.

The Maryland high court last week suspended an attorney indefinitely for failure to honor a lien against his client’s case. He has a right to reapply to the bar after 6 months.

Two clients had small injury cases that collectively settled for a little over $25,000. The Food Employees’ Labor Relations Association and United Food and Commercial Workers’ Health and Welfare Fund had a lien on the case. Unlike almost every other non-military lien holder, this union demands full payment of its lien with no reduction for attorneys’ fees.

It is a great strategy by the union to get all of its money back. It is a terrible strategy for helping its workers get compensation for their injuries. Because when most lawyers see these agreements, they run for the hills unless it is a catastrophic injury case. Why? Because it is hard for both the lawyer and the client to get paid. No one wants to take a case where no one walks away happy.

When I first started doing plaintiffs’ work, I couldn’t believe the union could do this. But there is a case square on point.

Anyway, the rest of the story writes itself. He does not pay the liens nor does he interplead the funds. He ignores request after request for payment of the lien for years. He finally puts his own money into it when I guess he realized it just would not go away.

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