25 Things Lawyers Maryland Personal Injury Lawyers Need to Know

I have represented defendant driver(s), injured plaintiffs, and insurance companies in auto accident cases in Maryland. From 1995 to 2002, I had the experience of defending auto insurance companies such as Allstate, Nationwide, State Farm, The Hartford, MAIF, and Bankers Independent Insurance Company. For the past five years, I have represented personal injury clients, making claims against those companies (and others). This article advises lawyers handling all types of personal injury cases, focusing on smaller personal injury cases. My law firm no longer handles smaller cases, but the lessons I learned in the trenches with these cases still informs my practice today.

So, going back, what did I learn in the first seven years that has been invaluable knowledge to me in the last 12? A lot. The same mistakes were being made repeatedly; recognizing this aided my defense of the insurance companies and prevented me from making those mistakes as a Maryland personal injury attorney. The best way to increase the value of your case is to avoid these weaknesses to the largest extent possible. The better the settlement offer or verdict, the cleaner a case is presented. This article is not intended to be a hornbook on handling an auto tort case. It is my ‘best practices’ learned from trying personal injury cases for both sides.

Get Your Own Pictures

Invest in a good digital camera to preserve photos of your client’s vehicle, injuries, an

have a beautiful 8X10 glossy of the pristine bumper but will conveniently misplace the total loss photos.

If you rely on your clients to take photographs of their own injuries, you will probably end up with pictures that are not very flattering and do not capture the essence of the injury. We have inherited cases where we have not even used the photographs depicting the injury because the fuzzy Polaroid in bad lighting with the family dog in the background would not help our cause. Join us all in 2013, please!

In cases involving a liability dispute, you will probably try that case. It is often helpful to have photos depicting the roadway for the judge or the jury to put the scene in perspective. Often, parties cannot even agree on the road layout at the time of the accident. Roads change constantly, intersections change, and traffic signals control the intersection changes. It is helpful to have accurate photos that depict the area where the accident took place. If your case may involve a liability dispute, get good photos of the scene before it changes.

Also, make sure you know exactly who your client is. Research their prior claims with an AISG report and check Maryland court records to see your client’s history.

• Get more information on settling up a claim the right way

Contact Witnesses Early

Memories fade, and the sooner you know exactly where you are, the more prepared you will be. In more significant cases, getting a private investigator, PI, to take recorded statements of the witnesses is also helpful so you can refresh their recollection of events down the road. Additionally, when you represent the injured party that was not at fault for the accident, random bystanders tend to be more cooperative and sympathetic to your client than the negligent driver. Police officers often will not provide complete contact information for witnesses. If you contact them while the ink is still fresh on the police report, you should get additional contact information for them, like their work numbers, dates of birth, and driver’s license numbers, so when the trial comes, you will be able to track them down at their new address.

Read the MAJ ListServ and Use Trialsmith

On the Maryland Trial Lawyers Association Listserv, you find thousands of years of combined legal experience that no one could gather in a single lifetime. So many questions are addressed each day that will eventually impact your practice. TrialSmith allows you to search by keyword or phrase the issue you must address. As a defense lawyer, I did not have this invaluable tool. Today, I read every single post, regardless of whether the subject addresses a current concern of mine. Read these posts daily, and you will find that your knowledge of the essential tools you need to effectively and creatively handle your caseload will grow exponentially.

Locate Health Care Providers ‘Under the Radar’

How do you get your auto clients in for physical therapy? First, that is the wrong way to frame the question. First, see if they can find their own doctor. That is hard sometimes because injured clients often need someone who will not require payment upfront. So this forces many to refer their clients to a doctor who regularly handles accident cases. It is not the first choice in most cases. But if you live in the real world, it sometimes is the best play for your client.

In smaller personal injury cases when the client needs an attorney’s help finding a health care provider, there is no question that Multi-Specialty, St. Paul and Biddle, At Last and their brethren will always have a place in the personal injury system in Maryland. They are experienced in treating injured patients, providing quality care, and have systems that make our jobs as personal injury lawyers easier (providing medical records in a timely and painless fashion, for example). Furthermore, they will provide medical treatment for a client with no PIP, health insurance, or means to pay for necessary medical treatment before the resolution of the case. The downside is that the health care providers with lawyer-referred patients are vulnerable to cross-examination. As a defense attorney, I knew when I had the opportunity to cross one of these doctors, it would dramatically affect the overall outcome of the case, even if the care and treatment of the patient were reasonable and appropriate.

The best advice is to get to know the physical therapist down the street from your office, the general practitioners in your building, and the chiropractor on the corner. These practitioners, who are not the usual suspects may have more credibility with the cynical adjuster or district court judge who repeatedly sees the same healthcare providers. Furthermore, the local practitioners are also a good referral source for new clients.

Also,, remember who this advice is really for: clients with no other means of health care. If your client has a doctor they see regularly, that is usually the best path to take.

The Emergency Room Visit

Two of the first questions an adjuster, judge, or jury will want answered are: (1) “How soon after the accident did your client seek medical treatment?” and (2) “Did the client go to the ER?” If you get a call from a potential client shortly after an accident, ensure you impress upon him the importance of getting checked out immediately. I explain to my potential clients that I am not a doctor, and I am unable to diagnose why he or she is feeling pain following an accident. It is in your client’s best interest to be examined as soon as possible following any accident. I know some attorneys are uncomfortable recommending that their clients visit the ER for many reasons. Fear of this referral becoming an issue in front of a jury is outweighed by the real need for people in pain to be examined by a doctor. Adjusters, judges, and juries rarely think a visit to the emergency room is unreasonable.

One pitfall to watch out for: Make sure you tell your client that they should not tell the ER staff that they are in the emergency room because their lawyer told them to go. Otherwise, you could see an embarrassing notation in the records. (Of course, if this happens, you probably have an awful case anyway.)

Recommend a Visit to a Prior Healthcare Provider

Typically, if your personal injury client does go to the ER, they will be discharged and advised to follow up with their family physician. Again, this is usually a good idea if your client has a doctor. Adjusters, jurors, and judges almost invariably believe a person’s injuries are more credible if the person goes to the family doctor they have trusted for years, in contrast to the client who only gets treatment from the doctor recommended by an attorney. Additionally, if you have a client with a doctor who treated them for a prior injury or preexisting condition, have them return to that doctor.

This is important for several reasons. First, the prior doctor will know the patient’s baseline and is in the best position to articulate and evaluate what exacerbations have occurred from the subsequent accident (if there is a potential preexisting injury issue). Second, it takes away effective cross-examination from the defense attorney as to why they did not return to the trusted doctor whose surgery was so successful that he or she was back to 100% before the accident. Third, you are not in a position to lose credibility with the adjuster, judge, or jury on why the client picked your doctor over the client’s existing doctor.

Do Not Allow Your Client to Give a Recorded Statement

Most adjusters will tell you they need your client’s recorded statement to firm up liability or assess credibility. Providing a recorded statement rarely results in a finding in your favor on liability, nor will the adjuster fall in love with your client over the phone and offer more money.

The only use for a recorded statement is for the defense attorney to take sound bites out of context and use them as cross-examination against your client at trial. Do not give the defense attorney any ammunition you do not need to give.

The obvious exception to this rule is an uninsured or underinsured case. Because these claims are breach of contract cases, the client’s insurance contract almost certainly contains language that makes giving a complete statement a condition precedent to recovery. Check to see when the claim was denied. If the claim was denied before the claim representative requests the statement, you may have grounds for denying their request and staying in compliance with the policy.

Please read the policy carefully. If it says it has the right to take the recorded statement to determine liability and has already denied the claim, you may be able to deny its request. If you have to provide a recorded statement, discuss your client’s statement with her before she gives it, and arrange for the client to come to your office to give the statement by conference call. Let the claim representative know you insist on a copy of the statement.

Social Media

It is wise to remind your clients to write their Facebook, Twitter, Instagram, and so forth posts as if the insurance companies will read them. What can your client’s post will help the value of their case? Absolutely nothing.

The Physical Therapist Is Not Your Buddy

Tell your personal injury clients that their physical therapists are not their friends, counsel, or confidants. The client must tell the healthcare provider everything for proper care and treatment. So while his prior neck injury is relevant, the fact that it occurred during the three-year stint he did at Jessup for assault and battery is irrelevant to his care and treatment and, if mentioned, may find its way into the medical records.

Providing details of their everyday life may damage your case if the impression is that the client is fine because she is going about her regular routine. “I had pain this weekend” is far superior to “I had pain this weekend in Ocean City.”

This accident victim may have been in pain and incapacitated the entire time she was on the trip, but that will not be the message sent by that type of notation in the medical records.

Subsequent Accident

While your personal injury client is in treatment, he must understand that if he has a subsequent injury, for better or worse, he must tell his treating doctors about the incident and let you know. Every adjuster will have access to a claims index. Auto accidents will appear on a claims index if either party reports the accident, even if there are no reported injuries. Subsequent accidents can create very effective cross-examination, even if there are no injuries, unless the patient tells the treating doctor about the accident and it is documented that the subsequent accident did not cause any increased pain or exacerbate the preexisting condition. If your client has a subsequent accident and is not injured but does not tell his doctors about it, this will create a gray area for the defense and be used against your client. Take the ammunition away and ensure your client understands the importance of telling his doctors that he was not injured. If your client is injured in a subsequent accident, his healthcare providers need to know this information to proceed appropriately.

Make Sure Your Client Can Appropriately Articulate Injuries

Occasionally, we have clients that may exaggerate the severity of their injuries. This problem usually presents itself when a Plaintiff, who has not been adequately prepared for his deposition, begins to testify inconsistently with medical records. For example, upon discharge, the medical report may state that the plaintiff is not having any problems with the activities of daily living.

The client then goes on to testify that she has not been able to brush her hair since the accident, cannot walk upstairs anymore, and has daily pain that is a pain level of “10,” even though she has not seen a doctor for these injuries in three years. If your client is going to be deposed, make sure she reads her medical records before testifying to help refresh her recollection and make her understand the importance of honesty and consistency.

On the other hand, the client at the other extreme is equally problematic: the “John Wayne” client who fails to articulate all their complaints to his healthcare providers. Nearly every insurance company has a Colossus-type software program to assist the claims adjuster in evaluating the claim. Each system essentially operates in the same manner and considers numerous factors. Each subjective and objective complaint in a medical record is given a score, and weight is assigned to the complaint. For example, neck pain gets a certain amount of points; however, neck pain with associated headaches, numbness, and tingling will be given a higher score, which ultimately translates into a higher evaluation. Furthermore, some clients will have lacerations, cuts, scrapes, and bruising but fail to mention any of this to the health care provider. If the complaint does not make its way into the medical report, it will not be considered by the adjuster and is unlikely to be considered by a judge or jury.

Keeping Appointments and Attending the Discharge Evaluation

Underscore with your clients why it is essential for their recovery and their case that they keep their appointments and receive a final discharge from their providers. No-shows are indicative of a client who is not seriously injured. When the records from the physical therapist are littered with notations regarding no-shows, cancellations, arriving late, or leaving early, it is ammunition for the defense attorney and adjuster.

Failure to receive an appropriate discharge does not provide any baseline to evaluate the potential long-term sequelae of the injury. With some justification, the insurance company will assume that the patient has fully recovered as of the last medical treatment day. Again, if it is not written down in the medical records, it does not exist for the defense attorney or the adjuster.

Verify Plaintiff’s Prior Medical History

At every intake with a new client, reviewing his prior medical history and past claims history is essential. On countless occasions, as a defense attorney, I uncovered prior medical histories and claims that the personal injury attorney was unaware of. There is no greater damning evidence than the existence of a prior medical condition or claim that was denied under oath by the plaintiff.

Spend enough time with your clients discussing this issue at length. Explain to him straightforwardly that any competent defense attorney or adjuster will uncover his prior medical history or claims history with access to a computer. In some circumstances, the clients may not remember whether or not they were injured on the job or made a claim for that car accident in which they were involved. You may want to consider sending a subpoena to the Workers’ Compensation Commission, your client’s insurance company, or index your client through AISG.

Never Put in Writing to a Doctor That You Do Not Want the Jury to See

Do not send a letter to a doctor (or any expert or fact witness) that you would not feel comfortable seeing blown up larger than life, read aloud with feeling to the jury, and introduced into evidence at your trial. This also applies to e-mail and phone messages.

This is an innocent mistake many lawyers make. Defense attorneys will always subpoena a doctor’s file, which usually includes all correspondence. Asking a doctor for an opinion on causal connection is one thing, but telling the doctor what you need him to say is another. Another request I have seen from attorneys in the past is a request to modify a report. This is a bad idea, even if a legitimate change is warranted. If you believe there is a problem with the report or your client identifies an error, correcting the issue may cause more harm than good. The best way to avoid this pitfall is to simply pick up the phone and call the doctor to discuss the concern and have her prepared to resolve it at trial.

Do Not Sign a Medical Authorization or Agree to an IME Before Filing Suit

Adjusters will “try and make your job easier” by collecting your medical records. This is a bad idea. If you sign a blanket medical authorization, the claim rep will get copies of medical records that may not help you. The family doctor’s records that reveal your client had a headache and body aches five years ago when he had a fever of 104 will be construed as a preexisting condition of headaches. Similarly, your client’s visit to the ER after a softball injury and the x-rays showing degenerative changes will be used against you.

Another trick the adjusters use is, “I see that your client had a prior neck and back claim. If you get me his prior records showing he was discharged with no complaints, we can resolve this case.” Falling for this deception does not help you or your client. When you file a suit, providing past accident records voluntarily reduces the defense attorney’s work. The prior medical records will only provide the adjuster with ways to chip away at the value of your case. Really, there is no harm in doing it in a Circuit Court case – they get the records in discovery – but I think you are better off 80% of the time just filing suit because giving them the priors rarely leads to a different settlement calculation.

In more significant cases with claims for permanency that are obvious early on, the adjuster may request an “IME.” Think back to how many times you have actually gotten a favorable DME from the doctor cherry-picked by the insurance company defending – and declining – the claim. Voluntary submission to a DME will only cut down on the defense attorney’s work, give the adjuster leverage, and possibly subject your client to another DME by a different doctor after suit is filed.

If Settlement Negotiations Fail, Substitute

Sometimes, settlement negotiations fail between adjusters and defense lawyers due to poor personal chemistry. The settlement amount is not the problem; it is the lawyer demanding the settlement amount. Some adjusters would let a deal fall apart rather than give a particular lawyer a “victory” over them. In this case, bring in the “good cop” (or at least a different cop). The new cop comes back without all the built-up hatred, and while perhaps even admitting that the bad cop can be a little tricky at times, agrees that the plaintiff’s numbers are in the right ballpark because of “X, Y, and Z.”

This technique works well for us, but lawyers typically will not employ it because it requires taking yourself or your partner out of the deal. If you can set your egos aside, it is a great way to keep settlement negotiations alive on your terms. This practice works well in our office since we have a gender diversity mix, and occasionally, certain claims representatives or defense attorneys prefer to deal with one over the other.

Know Your Adjusters

If you do enough auto tort litigation, you will encounter the same insurance adjusters repeatedly. Getting to know the people you deal with is a more enjoyable way to live and creates a relationship with people who are often enjoyable to work with, even vice versa.

Adjusters typically fall into one of three categories: (1) “It is not my money, and I want this file off my desk”; (2) “It is my money, all claimants are liars, I love to talk shop, all day long, and I will develop an attitude problem if you disagree with me over this case”; and (3) My job is important, I am competent, and I evaluate cases fairly on a case by case basis. Luckily, most adjusters fall into category one or three. If you have an adjuster in category two, practice your patience and people skills, or see tip # 16 above.

Keep in mind when dealing with adjusters that they keep tabs on you. One attorney who now refers his cases to us told me that every final offer seemed consistent with the others; they seemed to know where his settlement point was. Some of the bigger insurance companies have “files” on particular firms and attorneys. They know who is willing to try a case and who will accept a two-time special offer every time. They know who will wait until the pretrial to take their last offer and who will wait to settle the case on the courthouse steps. The claim reps talk just like we do; they know who the blowhards are and who the softies are. Make sure that the reputation you develop maximizes the offers your clients get.

Do Not Send Out Medical Records as They Come In

Insurance adjusters will always ask in the initial contact letter for you to send them medical records as you receive them. As a general rule, our personal injury lawyers do not send out medical records until the medical package is complete. (This does not apply to PIP.) We do this for two reasons. First, it creates an administrative nightmare to figure out what has been sent and what has not been sent. If you send them out piecemeal, the adjuster may misplace some of the medical records and will need them all over again in the end anyway.

Second, if you have an accident case involving a severe injury, an aggressive claim rep may build a case against your client early on by obtaining surveillance early on. In a high-stakes case, the claim rep will not hesitate to hire an investigator to dig up dirt on your client. This happened in a case where the claimant was telling her physical therapist she could not do her laundry or clean her own house. At the same time, a videotape was rolling while she was doing laundry as a housekeeper for another family. (Her explanation at trial was that she only said she could not do her laundry or clean her house !)

Prior Injuries and Conditions

Degenerative conditions and preexisting problems will not necessarily cause your case to flounder. Claims representatives and defense attorneys invariably hang their hats on degenerative conditions (which we all have on some level) and preexisting problems. Thankfully, we have the susceptibility instruction (MPJI 10:3) and aggravation of preexisting condition instruction (MPJI 10:4). If you have either one of these issues, be able to articulate the difference between your client’s problems and his treatment before the accident and his current condition.

Do not let a claims representative reduce the value of your case because of either of these two issues. The law is on our side; we just have to persuade the suspicious and skeptical jurors and guide them toward following the law.

Demand Packages: Neat, Complete, and to the Point

When preparing a demand package, make sure that it is done right. Too many personal injury lawyers in Maryland send out sloppy demand packages with missing medical records, missing bills, duplicate copies of junk, records that should not be in the demand package, calculation errors, and long-winded explanations about why the client deserves $500,000 on a case with $2,500 in medical bills.

Before any demand packages leave our office, we ensure the medical records are complete, the records are reviewed, and the bills and lost wages are documented. The neater the presentation, the more confidence the adjuster will have in the attorney. I have known adjusters who brag about taking advantage of a plaintiff’s attorney’s math errors.

Furthermore, the demand letter itself is not the personal injury attorney’s opportunity to discuss ad nauseam what a fantastic witness your client will make and how she could not go to the first two weeks of cheerleading camp this summer, or how your avid golfer client has not been back on the links. First, it is a waste of time. Chances are you will have conversations with your adjuster about the facts of the case, where you can articulate any points you need to make. Chances are the adjuster’s authority will not change or hinge upon anything you have added to your demand letter besides what is in the medical records (Colossus does not have an entry for this). Second, you may inadvertently provide the adjuster or defense attorney with information that can be used against your client.

When making a demand, you certainly do not want to bid against yourself. If you are unfamiliar with the insurance company, have a case with unusual damages, or are sending a demand in a case involving a trucking company, you may wait it out and see what the carrier’s initial offer is before making a demand. However, if you are sending a demand to one of Maryland’s regulars, make your demand reasonable. A pie-in-the-sky demand (without some reasonable basis) will tell the claims representative that you do not really know the case’s value and may also set yourself up for a lowball offer. This type of negotiation technique is often exhausting and counterproductive.

• Sample demand letter
• Thoughts on how to write a demand letter

Send Out Demand Package with Discovery

Most insurance adjusters have between 100 and 300 pending files at any given time. The response time on demand packages varies significantly between insurance companies and individual adjusters. As a general practice, we send a prepared 10-104 in District Court cases and requests for admissions with our Circuit Court cases in our demand package. It takes a little extra time to prepare the pleadings, but it will get your adjuster’s attention. In our demand package, we ask the adjuster to call us within ten days of receiving the demand package. If we do not hear from the adjuster within ten days, we will call to confirm that they have received it and ask how long they need to evaluate the case.

Don’t Get Caught Up in ‘Time Specials’ Math

The idea that a case should be valued by some multiplier of a client’s specials favors the insurance company when the plaintiff’s personal injury attorney looks at raw data and is influenced by it, especially when accident attorneys do not do the things they need to do to win cases and maximize the settlement offer. It also provides statistics that work against all of us as plaintiff’s attorneys. Too many attorneys will never try a case and will simply take what they can get in settlements instead of trying the case and allowing a jury to award a fair amount. Do not let their settlements become a part of your math.

Know When, Where, and How to File Suit

As a rule, we file suit as soon as settlement negotiations fail. In some personal injury accident cases, the carrier will call you back after you have obtained service on the defendant and increase their offer now that your case is in suit. It is good to keep track of which insurance companies do increase offers post-suit and which do not. We sometimes file suit contemporaneously by sending our demand package for this very reason. You can get a sample demand letter here.

If you are on the MAJ Listserve, you know some jurisdictions are better than others. If you have options of where to file, pick the jurisdiction that will be the most plaintiff-friendly. If you are unsure, there are many opinions on the Listserv on these topics.

If you have a case in Maryland that is not worth more than $10,000, you should file your case in District Court and ask for $15,000 instead of $30,000. Otherwise, you will end up trying a District Court case in Circuit Court. If your case is on the cusp of value between $15,000 and $30,000, have a heart-to-heart with your client. Also, their expenses will increase, and it will take longer to get a trial date. Also, know your insurance companies. If the company typically writes $30,000/$60,000 policies, it generally will not bump up a case to Circuit Court and expose its insured to an even higher excess verdict.

Know your Insurance Company

Keep track of your settlement negotiations with individual insurance companies. If you keep copious notes, you will see patterns develop. In some cases, every adjuster has virtually the same approach to settlement, and increases in settlement offers are doled out according to some master plan. Certain insurance companies do not want to expose their insured to an excess verdict. They will make a reasonable settlement offer in a Maryland Circuit Court case where the amount requested exceeds the policy limits. Finally, as mentioned earlier, sometimes all you need to do is file suit to get someone’s attention. After filing suit, call the defense attorney and/or adjuster and see if their stance has changed.

Depending on the insurance company and the insurance adjuster, chances are the adjuster did not offer “Full Authority” before you filed suit. Some adjuster will assume that you are merely threatening to file suit and that you will call and accept their last offer before actually filing suit. Also, sometimes an insurance adjuster and a crash attorney may not see eye-to-eye on a case and may have a falling out during settlement negotiations, so the full authority was never offered. However, the authority is the authority. The defense attorney assigned to the case will have the entire claim file, including knowledge of the full authority. If, for no other reason, it is a good idea to call when defense counsel gets in the case to touch base, and if you were close to getting the matter resolved, they might be willing to tell you the actual authority or even get a little more on the file to get the case resolved after they have had a chance to evaluate the file for themselves. Finally, remember that a final offer is not necessarily a final one.

Be Prepared and Organized

This should go without saying, but too many times, I’ve seen many personal injury attorneys in Maryland try a case by the seat of their pants, have no control over witnesses, have no command of the facts, and fumble through exhibits and testimony. The point needed to make the list.

Before your client answers interrogatories, gives deposition testimony, or takes the stand, spend quality time reviewing the importance of honesty and accuracy. The credibility and believability of a plaintiff are questioned before they ever take the stand due to the current perceptions of the litigation process and the natural, healthy skepticism juries have always had.

Before your trial, read through the entire file, including the records you think are duplicates of what you already have. When a defense attorney subpoenas records from your client’s health care providers, past employers, and insurance companies, they try to dig up dirt. Read every page of what they get in response to those subpoenas; chances ar,e they got more than you did when you sent your request.

Prepare your client for the hard questions. Know the defense lawyer’s case and try to take the sting out. Address the weaknesses in your case and provide explanations for them. Do not try and turn your bumper scratch into a crumple; embrace the scratch and go with it. Do not try to elicit testimony from your client about how hard the impact was when there is no property damage.

If you have a minor impact crash with a delay in treatment, an explanation may be, “It did not look like much of an accident, so she thought her pain would go away quickly, and she tried to tough it out.” When she did not get better after a whole week, she went for treatment.

Prepare a trial binder. Have all your exhibits, discovery, pleadings, and medical records easily accessible and organized. Jurors watch everything and notice whether or not you are organized and on top of your game.

On the day of the trial, be sure to advise your client to be cordial to all parties but to be aware of their surroundings. An overheard conversation between your client and her husband can offend a juror, likewise for visits to the courthouse cafeteria and restrooms. You never know who may be listening.

There you have it, my professional Modus Operandi, boiled down into 25 tips. I hope this article has given you some ideas on maximizing and improving your case’s settlement value or increasing the verdict for your clients.

I am happy to answer any questions concerning the article or auto tort questions in general.

Laura G. Zois
Miller & Zois, LLC,
1 South St, #2450
Baltimore, MD 21202
410-779-4600
LauraZois@millerandzois.com

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