Search

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.

The most time consuming part of getting any case ready for trial is discovery. This is the process of the two sides learning (discovering, get it?) information about each other’s cases before trial. This is what the lawyers and clients spend their time doing for most of the year between when the case is filed and the trial.

Discovery happens two ways- by exchanging written material, and in person. In person discovery is usually in the form of a deposition, where witness testimony is taken under oath and transcribed for use later on. That’s not what this blog post is about.

Md-reporter

I am here to talk about written discovery, or more accurately, the often ridiculous objections I see used in an effort to avoid answering it. The two primary forms of written discovery are interrogatories and a request for production. Interrogatories are written questions to the other side that must be answered under oath. A request for production is kind of the same, except it is a set of written requests that the other side produce documents or other tangible things relevant to the case.

A poll recently released by the Defense Research Institute found that an overwhelming majority of respondents found that our civil courts are fair.

Check out the DRI’s release here. Note that the headline says “41% Doubt Fairness of Civil Courts” when the article explains that 58% expressed confidence in court decisions.

There are other interesting nuggets here as well. 83% said that the side with the most money for lawyers usually wins. That’s really interesting in terms of personal injury litigation, where generally only one side has money for lawyers, and the other side only has a lawyer at all because of the existence of a contingent fee agreement.

Yesterday the Court of Special Appeals of Maryland released this opinion reversing the Circuit Court for Baltimore County’s entry of summary judgment against one of our clients. The case involves the application of Insurance Article §19-511 in settling an underinsured motorist claim.

Ron Miller offers some preliminary analysis here. I’m not going to steal Ron’s thunder by getting into the specifics myself. I will say that this opinion doesn’t mean that the case is over, there’s still a long way to go. There may be a petition for a writ of certiorari asking the Court of Appeals of Maryland to hear the case, and even if there is no petition or a petition is denied, there are issues to be addressed on remand by the trial court.

But for the moment at least, this is a huge win for our badly injured client. Rod Gaston did a great job setting up the issue in the trial court, and I handled the case on appeal. Our law firm is best known for our trial practice, but we also take a lot of pride in the results we get for our clients on appeal. It matters to us that we are on the front lines of developing the body of law that applies to Maryland personal injury cases because that helps not just our clients, but injury victims all over the state.

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.

Here are just a few things from around the web that I thought were interesting:

THR, Esq. comments on Teller, of Penn & Teller fame suing another magician for ripping off one of his tricks. The best part of the whole thing is the illustration Teller provided when he copyrighted the trick. Awesome. I’ve seen Penn & Teller, and they rule. To show how they appreciate the audience, after every show they wait in the lobby and meet everyone, sign autographs and pose for pictures. It’s worth every penny of your entertainment dollar. Anyway, they could make that dollar disappear whether you liked it or not, if they wanted to. Just be glad they let you see the show instead.

Can an undocumented immigrant be admitted to the Florida Bar? Everyone’s knee-jerk reaction is probably to say no, but here’s the thing: there’s no rule against it.

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.

Contact Information