Articles Posted in Car Accidents

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I was just having a conversation with a former colleague who defends against personal injury cases, mostly auto and truck collisions. We were discussing a trial he had recently finished, and he had remarked to me that he thought the plaintiff was poorly prepared for his testimony at trial. Basically, he thought the jury would have awarded the plaintiff more money if he had been better prepared.

This confirms my own experience. Client preparation is something many personal injury lawyers do not do very well. I’m not sure if this is because of the time pressure created by a busy practice, or because of a simple lack of awareness of how important client prep is to success at trial.

At Miller & Zois, one of the fundamental principles of our personal injury trial practice is that we strive to get the most out of the portions of our case that we control. Perhaps the biggest thing in a trial that you have some degree of control over is the presentation of the client. The old saw that a personal injury trial is a “beauty contest” is true. If the plaintiff is not credible and likable, it will be very tough to get a good result.

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The best way to attack a defense medical witness’ testimony is to conduct an effective cross-examination. One of the ways we do this is by exposing the doctor’s financial interest in acting as a professional witness.

Maryland law allows discovery of how much a professional witness earns from testifying, as well as what percentage of his overall income is earned from working as a paid witness. At Miller & Zois, we don’t take the doctor’s word for it. Our practice is to issue a subpoena for the financial records that document the amounts the DME (Defense Medical Exam) doctor is paid by insurance companies and defense attorneys.

The doctors do not like this very much. Usually the response we receive is a Motion for Protective Order from the doctor’s attorney asking that the records not be produced. If the court orders that the financial records be produced, usually that is the last you see of the DME doctor. Doctors will generally refuse to testify before producing these records.

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Today the Court of Appeals of Maryland issued its opinion in Grady v. Brown. This is a case involving the application of the Boulevard Rule. The Boulevard Rule is the traffic rule that states that traffic traveling on the favored roadway (or boulevard) has the right-of-way over traffic entering the boulevard from a side street.

I have written about this before. This case happened in Baltimore City. The plaintiff was driving his motorcycle down Falkirk Road, when the defendant emerged from an intersecting alleyway. There were cars parked along both sides of Falkirk Road, and the defendant testified at trial that he exited the alleyway only to the edge of the parked cars, so he could see if there was oncoming traffic. The jury found the defendant not to be negligent.

The Plaintiff moved for a directed verdict that the defendant was negligent as a matter of law due to the application of the boulevard rule. This motion was denied, and that denial was the basis of the appeal.

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Here in Maryland, we have a procedure that allows a Plaintiff’s medical records and bills to be admitted into evidence without the testimony of a medical provider. This requires service of a list of the records to be offered at least sixty days before trial. This procedure is available in any case filed in the District Court of Maryland, or any case in a Maryland Circuit Court that is filed within the jurisdictional limit of the District Court, presently $30,000.00.

The defense also has the ability to admit a medical report using the same procedure. Often, insurance company lawyers will hire a doctor to review the medical records of the Plaintiff and other documents and then create a “peer review” report. Usually, this report says something like the plaintiff treated for an unreasonable period of time, the plaintiff’s injuries are less severe than claimed, or the medical bills are unnecessary, unreasonable, or not related to the accident.

In cases in the District Court, these reports are easy to address because judges are used to seeing them and are usually familiar with how they are created. It gets trickier when the case is to be tried before a jury (usually when the defense requests a jury trial). Here are some tips for attacking these kinds of reports in jury trials.

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prince george's county verdictLast week I wrote about a car accident injury case we tried in the District Court of Maryland for Prince George’s County.  We do not handle many district court cases anymore but we liked the client in this case.  The crash was a rear-end collision with a soft-tissue injury. The damage to the vehicles was extremely minor,  about $400.00. My client had $4800.00 in medical expenses.  Today we called the court to find out what the verdict was. It was $10,500.00. That is a very good result for this kind of case, especially considering we only sued for $10,000.00 in the first place.

Even if a motion is filed to reduce the verdict to the ad damnum, we are happy with this result. So is our client. Again, plaintiff’s lawyers need to try these cases.  By my math, $10,000 is a lot better than zero.  We really do not make money in cases like this.  We get a $4,000 fee.  That is a lot of money in my pocket if you handed it to me personally.  But from a business perspective?  It is not worth the time and expense.  But the hope is that when something awful happens to that client’s cousin’s brother’s friend, they call us.

GEICO’s Strategy in Low Property Damage Cases

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The Baltimore City Circuit Court has recently announced that it has changed its scheduling and procedural requirements for motor tort cases, to require mediation in all such cases with claimed damages exceeding $20,000. Mediation will be required to be completed no later than 30 days after the discovery deadline, the court said in a release, subject to the right to request exemption from mediation within 60 days from the date of the order. If the parties engage in mediation, either party may choose to opt out of the scheduled pre-trial conference upon demonstrating that mediation was completed in accordance with the order. Motor tort cases scheduled on a Short Track Schedule – cases where damages claimed are $20,000 or less and cases forwarded from the District Court due to a jury trial prayer – will not be referred to mediation.

I’m not sure how much this will help, though. I think the success of the program depends largely on the skill and experience of the mediators. If they use experienced personal injury lawyers or defense counsel, the mediation may be valuable. If not, I expect it will be a waste of time.

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I was thinking about this topic because Monday morning I found myself in a very unusual place for a personal injury lawyer- United States Bankruptcy Court. How did I end up there?

I have an auto accident injury case pending in the Circuit Court for Charles County. I represent a plaintiff who was injured when another driver rear-ended her. During the course of litigation, it came out that the defendant had a pending bankruptcy claim.

Defense counsel filed a Suggestion of Bankruptcy in the state court case. Pursuant to federal law, that case was stayed until resolution of the bankruptcy. This would be a bad thing because it would mean that my injured plaintiff would wait more or less indefinitely to get her case moving.

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We always have a few cases going on in the office involving car accident injuries caused by uninsured motorists. One of these cases had something interesting happen today.

The defendant insurance company had identified two doctors as expert witnesses. They secured an order compelling plaintiff to submit to an “independent medical examination” (three lies for the price of one, since it’s not independent, nothing medical takes place, and there’s barely any examination). After obtaining opinions from both doctors, the insurer withdrew one as a witness. Unsurprisingly, it was the one whose opinion was more favorable to the plaintiff.

There’s a real argument to be made that this practice exhibits a lack of good faith. Shouldn’t the insurer have to stand by the “independent” opinion they asked for?

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Regular readers, assuming there are some, may recall my July 30, 2008 post on an Uninsured Motorist injury case I tried in the Circuit Court for Anne Arundel County.

Yesterday, I received a comment on that blog post from Mark Brown of H. Barritt Peterson & Associates, who was defense counsel in the case. This is a firm of attorneys who are employees of State Farm Insurance and do nothing but defend State Farm and its insureds when they become involved in litigation. I deal with these folks all the time. They are one of the better staff counsel offices out there. They fight hard but are generally reasonable in conducting litigation and easy to get along with. Mark is a nice guy and a talented lawyer who did an excellent job in this case.

I’m talking about this for two reasons. One- my personal belief is that if I will put myself out there and take stances on legal issues and my cases, I should be prepared to stand by those positions. I could have elected to leave Mark’s comment “unpublished”, but I don’t think that’s fair. Also, I strongly believe that there are two sides to every story and that considering and discussing viewpoints that differ from my own can lead to good insights. You learn little discussing issues with people who already agree with you.

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Today I had a trial in an auto accident injury case. My case was in Montgomery County District Court. It was what I call a “left turn” case. The defendant driver made a left turn across my client’s path, causing a pretty forceful collision.

The crash was bad enough that my guy wasn’t able to tell the responding paramedics where he was or what time it was. He did not know what day it was. He later suffered from nausea, believed to be from a concussion. While he was in the hospital for two days, he needed help from an occupational therapist to use the bathroom and to brush his teeth. Ultimately, he needed about a month of medical treatment. He was treated by the hospital’s attending orthopedist and got physical therapy from a therapist that the orthopedist referred him to.

The insurance carrier contested liability at trial. The defendant driver said in his interrogatory answers that my guy was contributorily negligent because he was speeding.

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