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Articles Posted in Personal Injury

For many lawyers, iPads have become indispensable for a wide variety of my litigation tasks. There are some things that I will never do the “old fashioned way” again. So I thought I would share a few of the ways this new technology has made my life easier.

Motions hearings/Pre-trial conferences: I rarely take a paper file to simple motions hearings or Pre-trial conferences. I will usually bring a courtesy copy of the Pre-trial statement or the motion at issue for the Court, just in case it hasn’t made it into the file. Otherwise, the only paper I bring is a legal pad. For a motions hearing, I use Dropbox to send .pdf copies of the motions, responses and replies, the cited case law, and my argument outline directly to my iPad. I have everything I could need available to me in an instant, without fumbling through a file jacket or flipping through a long opinion to find a particular passage. This makes my argument quicker and more organized, and gives me an advantage when the Court has a question about something that I may not know off the top of my head- I can generally find whatever it is and be able to respond more quickly than if I were using a traditional file.

Depositions: I do these in a very similar fashion to a motions hearing. When I do my deposition prep, I load any pleadings, deposition transcripts, medical records or produced documents onto the iPad (again, using Dropbox). My deposition outline goes on there too. It’s really a great way to carry 1500 pages of Bates-stamped medical records without lugging a long a 20 pound trial case. The only other thing I take is a leather presentation folder with a legal pad in it. Also in the folder are pre-printed copies of any photos or documents that I plan to use as exhibits.

I just reached a settlement in a case that was set for trial next week. Obviously that is great news for my client, who now has some closure on a difficult period in his life.

But memorializing the agreement and having the clerk remove the case from the docket doesn’t mean the end of my job when it comes to settlement.

I had subpoenaed three witnesses to appear for trial: an independent “bystander” witness, a traffic engineer from the State Highway Administration, and a police officer. I made sure to contact each of these witnesses as soon as the case resolved to let them know they would not need to appear. They really appreciated that I let them know. The traffic engineer in particular made it a point to let me know how often attorneys subpoena witnesses from his office and then do not let them know when the case settles. Then they travel to court for nothing.

One thing we all know is that we aren’t as sharp when we are tired as we are when we are well-rested.

That’s why some occupations have rules about on-duty hours, truck drivers for example. There are federal regulations governing how many hours professional drivers can work. Working in violation of these limitations could be considered evidence of negligence in many circumstances.

Even in the private sector, the Maryland Depatment of Transportation’s Motor Vehicle Administration requires drivers to inform the MVA’s Medical Advisory Board when they are diagnosed with certain sleep-related medical disorders, like sleep apnea or narcolepsy. “The objective of the MAB is to assess medical fitness to drive of individuals who have medical conditions that can impact on their ability to safely operate a motor vehicle.” I think we can all agree that sleep deprivation can be a major factor affecting the abilty to drive a car or truck, or operate heavy machinery.

Putting a bad pun in the title is always a great start to a blog post, right? Try the veal, I’m here all week.

But seriously, proving medical causation of an injury in a personal injury case nearly always requires expert medical testimony. There a few exceptions for objective injuries that would be obvious to a layperson (like cuts and bruises), but generally proving medical causation requires a physician to testify that within a reasonable degree of medical probability, the injury or medcial condition was causally related to the accident.

The most obvious source of this testimony is the plaintiff’s treating physician. There are strengths and weaknesses in using a treating physician as an expert witness. One of these can be that since you generally do not choose the treating physician, you are stuck with their qualifications, however good or bad they may be.

I’m 38. For many in my generation, when we hear the phrase “private investigator”, Tom Selleck playing Magnum, P.I. is what springs to mind. But in the real-world practice of law, there are certain times when a good private investigator can be invaluable, even if he isn’t a Ferrari driving ex-Navy SEAL.

One example is locating difficult to find witnesses. A few years ago we had a red light – green light case in Baltimore City where our client had a permanent crush injury to her ankle. The case was vigorously contested on liability, and the only locatable witnesses agreed that the defendant had a green light. So I got my investigator working on locating the other witnesses who were listed on the police report. He found one of them- an 11 year-old boy who had seen the accident happen from a friend’s porch that was located a short distance from the light. He confirmed that my client had entered the intersection on a green light.

We tried that case. The jury found the boy more credible than the adult witnesses, who had been drinking that afternoon. The jury awarded our client over a million dollars in damages- on a case we never could have won if we hadn’t found that witness.

Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.

In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. One was handled in the trial court by my colleague Rod Gaston, the other by me, and I was appellate counsel in both. So we feel that our law firm is out on the leading edge in this issue.

One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is neccessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.

A few months ago, I tried a case in Montgomery County Circuit court and got a great verdict. Shortly afterward, I received the defendant’s motion for a new trial. I read the motion, and discussed it with a few of the other lawyers in my office. None of us thought it was a strong motion, and we all believed it was likely to be denied. Until I got a hearing notice in the mail.

Well, I live in Baltimore County, near Towson. I have to be in the car by 7:30 if I hope to be in Rockville by 9 a.m., and I need to make alternative arrangements to get my daughter to daycare since they don’t open early enough to drop her off and still get to Rockville in time.

So the day of the hearing arrives, I make my arrangements, leave early, and drive the 1.5 hours to Rockville. Shortly before 9 a.m., I am sitting in the lobby outside the courtroom when our judge’s law clerk come out and lets me know that our judge was out sick, and the hearing would need to be rescheduled. Bummer, but O.K., everybody gets sick. I have had hearings rescheduled before because I got sick. It’s part of life. So we reschedule the hearing for the following Monday and I drive an hour back to my office.

Here is another great real-life trial preparation tip that I have forgotten myself in the past:

Check the weather the day before!

I am finalizing my preparations for a trial tomorrow in a car accident case in Baltimore County Cicuit Court. According to weather.com, there is a 60% chance of rain tomorrow morning. So my trial prep now includes making sure I remember my galoshes, raincoat and umbrella. It is hard to make a good first impression on the jury when you look like you wore your suit in the shower. From a performance perspective, it’s nearly impossible to be at your best when you have wet, cold feet. I know I look like a dork in my galoshes. A warm, dry dork. So I don’t care.

OK- I am pulling a bit of the ol’ switcheroo here. I know you were probably expecting this installment of my series on trial organization to focus on the trial binder. Relax, that’s coming. I decided to change topics at the last minute because I recently saw two blog posts that touch on another trial organization issue that I was planning to talk about anyway- using PowerPoint or other multimedia presentations at trial.

The legal field tends to lag far behind the business world in its use of technology. But our jurors live in the modern world. They are accustomed to most presentations being accompanied by digital media or video, and they expect this from trial presentations as well. They expect the technology to work right and they expect us to know how to use it.

I often use PowerPoint at trial. It’s more visually impressive than a foam-board blow-up, and I like being able to use the remote to click through images as I speak. I also use video a lot because often it is the only realistic way to present expert medical testimony. Many doctors are unwilling to close down their practice for an afternoon to appear live at trial, and for many cases the fee they would charge to come live is outside the budget for the case. This leaves only Plan B, which is a de bene esse video deposition to be played at trial.

One of the odd things about writing a blog is that unless a post happens to generate comments, you don’t really get a lot of feedback. That’s why it is nice to get some occasional recognition like being included in the LexisNexis Top 25 Top 25 Law Blogs. It is very gratifying to see that people are reading and enjoying the blog nationwide!

But it’s not over- voting is open for the #1 Tort Law Blog until December 10. Go over to this link, register and vote. Like just about every (good) trial lawyer I have ever met, I am incredibly competitive, so I want to win this competition! Go vote. Now!
This is all being done by the LexisNexis Litigation Resource Community. I am always in favor of any resource to help lawyers share and use cutting-edge information and trial techniques, and I am happy to be a part of what LexisNexis is doing here.

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