Articles Posted in Personal Injury

Last week, I argued an appeal in a truck accident case. I was in the Court of Special Appeals of Maryland, which is our state’s intermediate appellate court. My case was fourth in line on the day’s docket. That meant I got to (was forced to) sit through the argument on the cases ahead of mine.

The other arguments ran the gamut from abominable to excellent and featured a range of attorneys from young lawyers to experienced appellate advocates.

One thing I saw some of these other lawyers do was to address the questioning judges by name. For example, “Great question, Judge Hollander.” Actually, my example violates two rules of appellate argument. Never tell a judge they asked a great question. Presumably, they also thought it was a good question, or they would have remained silent.

Today is October 14. Each month the Maryland Board of Physicians posts on its website a report of sanction proceedings against the physicians and other medical professionals it regulates. The sanctions for September, 2009 were just posted today.

This is a big deal. That list of sanction proceedings is pretty much the only way for Marylanders to know if there has been a proceeding against their doctor’s license. Here is a great example to show why this is important, and why the Board of Physicians gives mere lip service to the safety of Maryland patients.

I have a client who was injured in an accident on January 1, 2007. She did what most people would do. She had a visit at the ER, and then followed up for treatment with her regular doctor. She was treated by her primary care doctor from January 20, 2007 to December 12, 2007. The doctor prescribed medications, physical therapy and chiropractic treatment. That all sounds great, right? Perfectly appropriate.

I just finished a two-day jury trial in the Circuit Court for Cecil County. Based solely on the preceding sentence, any experienced Maryland personal injury lawyers reading this probably have an idea where this post is going.

I was trying one of the most difficult types of cases to present to a jury. A rear-end collision with no visible damage to the vehicles involved, allegations of a fairly serious injury, and venue in a rural, conservative county with a (well-deserved) reputation for not being plaintiff-friendly.

The defendant driver claimed that she merely took her foot off her brake pedal a little too early while stopped at a traffic signal and drifted into the back of my client’s car. The photos of the vehicle damage supported this version of events- there was no damage visible.

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.

I just finished a one-day jury trial in Anne Arundel County Circuit Court, and I got killed. I am forcing myself to blog about this because I think it is dishonest for attorney bloggers to only write about the wins. Nobody wins all the time.

This outcome was surprising to me for two reasons. First, I had what I considered to be a great case for the kind of case it was. Second, I had a very credible client and damages witness.

This was a damages case. The defendant driver was on his way home from work, and switched lanes to get out from behind a box truck, without seeing what was in the lane he changed into. He rear-ended my client, who was stopped for a red light, and pushed her into the vehicle in front of her. There are good photos of the vehicle damage.

I think it is normal for professionals in any field to become accustomed to the processes and procedures we deal with every day. I think that phenomenon is particularly pronounced in the legal field. Most people have extremely limited experience with the workings of the court system in general, and with civil litigation in particular. The average citizen’s legal experience is most likely limited to serving jury duty, or appearing as a defendant in traffic court.

For example, I have often had clients seem surprised that I am usually quite friendly with the attorney representing the defendant in their personal injury case. To me, most of these lawyers are colleagues, law school classmates, or simply fellow professionals that I have gotten to know across the aisle at trials. They seem to believe that adversarial equates to hostile. This issue often arises in clients’ frustration with the pace (extremely slow) of litigation. People also seem to believe that the insurance company or defense attorney has a particular axe to grind against them, where I see that as business as usual.

This is an overly long intro to a blog that I have found to be great reading. There is an emergency department doctor who was sued for medical malpractice and is blogging about the course of his own trial (after the fact).

I recently blogged about whether there is value to the client in being first to file a lawsuit. I was talking specifically about the litigation that has already commenced as a result of the recent DC Metro train crash.

A few points have been raised by other folks that I think are interesting. First- apparently there is a very remote likelihood of settlement in any case involving WMATA (Washington Metropolitan Area Transit Authority). Because of this, many attorneys with experience in litigating against WMATA think filing suit quickly is the best way to make a recovery for the client without delay.

I get that, kind of. It sounds like litigating against MAIF. There’s no point in negotiating, so many think it is best to just file.

I recently attended the Maryland Association for Justice’s President’s Dinner. Besides the usual speeches by attorneys and politicians, we were given a chance to remind ourselves why what we do is worthwhile on many levels.

One of the recipients of this year’s Civil Justice Award was Diana Levine. Who’s that, you ask? Have you heard of Wyeth v. Levine? Yeah, that Levine. Ms. Levine lost an arm due to an inadequate warning label on the drug Phenergan. A Vermont jury awarded her 6 million dollars in damages. The drugmaker appealed this case all the way to the U.S. Supreme Court. The argument was that because the FDA approved the warning label, Ms. Levine’s state tort claim was preempted by federal law.

Well, they lost. Because of Ms. Levine, victims of pharmaceutical negligence can still pursue fair compensation through a claim of negligence, to be determined by a jury of ordinary citizens.

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.

Today the Maryland Daily Record reports that the consumer watchdog group Public Citizen has rated Maryland’s physician discipline system as one of the worst in the country.

Public Citizen’s spokesman (who is also an M.D.) states that this “is troubling because it indicates many states are not living up to their obligations to protect patients from bad doctors.” Maryland is ranked 45th and has been one of the ten worst states for the past six rankings.

In rebuttal, Irving Pinder (Executive Director of the Maryland Board of Physicians) called Public Citizen’s findings flawed.