Articles Posted in Discovery

Law blogs are full of “how to’s” on deposition techniques. Do a quick search and you will find tons of hints of all kinds. You can find checklists, tips for client preparation, or articles on effectively using exhibits. I’ve written some things like that myself. But today I have a quick lesson in what not to do when defending a deposition, and how to handle it when it happens.

This is from a deposition we recently took of a defendant driver in a car accident case that is pending in federal district court:

Q. And are you contending in this lawsuit that Mr. Plaintiff is a faker?

I have a lot of respect for federal magistrate judges. They spend their days handling settlement conferences, ruling on motions, and presiding over discovery disputes. Every once in a while, if they are lucky, the parties to a case will consent to a trial before a magistrate to liven things up.

misconduct ruling judgeNothing sucks more than civil discovery disputes. Particularly those that involve deposition misconduct in the form of speaking objections, and motion papers inclusive of personal attacks. This is the greatest court order I have ever seen (ABA Journal via ATL).

Judge Leen apparently got to this ruling too late to affect discovery in the case, but she’s not exactly apologetic about it. As she explains: “I am not the Maytag repairman of federal judges desperately hoping for something to do.” She thought so little of the merits of this dispute and the number of trees killed in its pursuit that she assigned her intern to read the 185 pages of transcripts submitted by the parties and to submit a memorandum. The intern was very quickly able to determine what the lawyers should have known — they were being bad.

Last night, the Maryland General Assembly passed a bill to put a constitutional amendment on the ballot in November raising the jury prayer amount in civil cases. Currently, in any civil case filed seeking more than $10,000.00, the defendant has a right to a jury trial. This provision does not have an escalator allowing it to rise along with the cost of medical care and wages lost.

This bill will permit a Constitutional amendment raising that amount to $15,000.00. Because this law relates to a constitutional amendment, it needed a 2/3 majority to pass. It will now appear on the ballot in November’s general election, where it will hopefully be approved by the voters.

This is an important issue for car accident lawyers in Maryland. As an example, consider a typical soft-tissue injury case. There is an emergency room visit with X-rays and a bill from the ER physician. That’s about $800, conservatively. The client needs 8 weeks of follow-up physical therapy. That’s about $4600. Then include two weeks missed from work, at about $1400 total. That’s $6800 in out of pocket losses. If the client needs an MRI to rule out a structural problem, you are looking at $8,000 in out of pocket damages for a relatively uncomplicated sprain/strain case. Filing for $10,000 does not really provide the potential to make a recovery to adequately compensate that client. But filing for more means that the defendant may pray a jury trial and delay the case for up to a year waiting for a trial date in Circuit Court, and requiring expensive, time-consuming discovery. The plaintiff may need to miss even more time from work to appear at a deposition, a court-ordered medical exam, and a settlement conference.

I have been away from the blog for a few days because I have been preparing for an oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday, I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally, this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

Yesterday I was in the Circuit Court for Baltimore City for a hearing on a motion for summary judgment filed by a defendant in a products liability case.

I think the way the hearing went down contains a lesson for defending against summary judgment motions.

My primary argument in opposition was a legal one. Without getting into the facts of the case, I thought I had a pretty strong legal argument that even if the facts were undisputed, the motion could not be granted because the defendant was not entitled to judgment as a matter of law. That was the primary argument I made in the motion papers and at the hearing.

Yesterday I received an order from the Court of Appeals of Maryland scheduling oral argument in two cases I am handling. Really, it is one argument, but relates to two cases that have been consolidated on appeal.

The first case is a case my colleague Rod Gaston had for trial in the Circuit Court for Anne Arundel County. The defendants named a neurosurgeon as an expert witness. Rod obtained an order compelling him to produce certain financial records in an effort to find out how much he is paid for testifying in general, and for the defense attorneys, defense law firms and insurance companies involved in the case specifically. The doctor has appealed that order.

The second case is a truck accident case I am handling in the Circuit Court for Montgomery County. That case has been stayed in the trial court pending the outcome of the appeal. There, the trial court entered a similar order, only with a strong confidentiality provision protecting the privacy of the records to be produced. The doctor has appealed that order as well.

We are always hearing about these evil, un-American frivolous lawsuits that threaten the very fabric of our society. OK, I get it. I dislike frivolous lawsuits as much as anybody. They devalue the claims of the truly injured, diminish the reputation of the plaintiff’s bar, and waste time and money.

But what about meritless defenses that are made against non-frivolous lawsuits? Two great examples today.

First, Eric Turkewitz writes about a New York defense attorney making the argument that pain is not a “personal injury.” Riiiiiight.

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.

There’s an old saying that you should never put anything in writing that you don’t want to see as an exhibit someday. There is a lot of wisdom in this.

Yesterday I was taking a deposition in a collateral dispute related to a car accident injury case. I was cross-examining a witness about a strongly worded letter he sent to one of the people involved. The witness was not happy to be asked about every intemperate thing he wrote in the letter, and whether he had any factual basis to write those things. Maybe it will not ultimately affect the litigation, but it sure made him look bad.

Write this down: don’t write correspondence when you are mad! Now, you will most likely do this anyway, but do it in a way that doesn’t cause harm or embarrassment. If you write angry, don’t mail angry.