Maryland Personal Injury Lawsuit
If your attorney’s efforts at a settlement with the insurance company fail, typically the only remaining option is to file a lawsuit.
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This does not mean your case will not settle before trial. The parties can agree to resolve a case at any time, even during or after trial. The goal of this area of our website is to demystify this process for personal injury victims. Words that are highlighted provide a link that is either an example of the subject being discussed or it provides further discussion on that particular stage of the process.
As always, if you are reading something that is unclear to you, let us know and we will be glad to explain further. The focus of this explanation is personal injury cases in Maryland state circuit courts. (For an understanding of what our attorneys do in handling personal injury cases in Maryland District Court, select here.)
Bear in mind that few statements made in this section are made without exception. We could write a book on the exceptions alone.
In Maryland, personal injury lawsuit begins with the filing of a Complaint by the plaintiff against the defendants. That Complaint must set out a “prima facie” case, which is a Latin expression for “at first view.” (It goes without saying that lawyers use these Latin expressions to make ourselves feel more important than we are.) A prima-facie case is a lawsuit that makes factual allegations that are support the claim being brought under Maryland law. In other words, assuming plaintiff can prove everything that she alleges, is there law that would make the defendant(s) liable for the harm suffered by the plaintiff under Maryland law? In a personal injury case in Maryland, the plaintiff’s lawyer must allege the elements of negligence. (Put more simply, the Complaint in a car accident case lays out the bare facts of the crash and generally claims injuries and other damages.)
Practically, plaintiff typically files a Complaint in the appropriate court and then the clerk of the court issues a summons and sends it back the plaintiff’s lawyer to serve on the defendant(s)(there are fees associated with filing any personal injury lawsuit which vary according to jurisdiction). This Complaint must then be served on the defendants, by either certified mail, return receipt requested, or, as more typically is the case, by private process server.
After a Complaint has been properly served, the defendant(s) then have a set period, (typically 30 days in Maryland for an in-state defendant) to file an Answer. The defendant’s Answer either admits or denies the allegations contained in the Complaint.
In Maryland state court, in a personal injury or breach of contract case, the defendant can file under the Maryland Rules a “general denial” of liability, as opposed to answering each allegation individually. The Answer also sets out any particular defenses that the defendant is alleging to the claims made by the plaintiff.
Most Maryland lawyers for defendants simply raise every possible defense (even it the nature of the defense does not apply to the facts and circumstances of a personal injury case.) In Circuit Court cases, our lawsuits also have a prayer for a jury trial. Sometimes, Defendants will, in their answer, pray for a jury trial in Maryland in cases filed in District Court for more than $10,000 but less than $30.000.
After an Answer is filed by the defendant(s), the discovery phase of the lawsuit begins. Discovery is a term used to describe the period during which the parties, through their lawyers, have the opportunity to learn about or “discover” all of the facts about the case. This is done through the different discovery mechanisms that lawyers have available to them. At Miller & Zois, our accident and medical malpractice attorneys file our discovery requests with our Complaint to expedite the process. Typically, we file Interrogatories, Requests for Production of Documents, and Requests for Admissions with our Complaint. We often also file deposition notices for the individuals we wish to depose (usually the defendant).
If you clicked on the sample interrogatories, you see that interrogatories are a list of questions that lawyers are allowed to ask the opposing party about their case. There are certainly general questions you want to ask in every case (who are their experts, names of witnesses, etc.) but there are also specific questions that lawyers ask given the particular facts of the personal injury case for which you want to seek information or you wish to have the defendants further explain. Each party in a Maryland circuit court case is allowed to ask any other party 30 interrogatories and the responding party is given 30 days to respond.
Of course, defendants are also allowed to serve interrogatories on the plaintiff as well. For an example of the types of questions asked, you can review sample interrogatories that have been propounded to our clients from lawyers representing Allstate, State Farm, Erie, Nationwide, GEICO, Progressive, and MAIF. If you compare the interrogatories served by these insurance companies, you will notice very little substantive differences in the requests. Defense lawyers ask questions regarding the car accident itself, personal injuries claimed, and many questions regarding the plaintiff’s prior and subsequent medical history.
Request for Production of Documents
Each party in Maryland is also allowed to ask for 30 different categories of documents to be produced to the other side called a Request for Production of Documents. In a typical personal injury car accident lawsuit in Maryland, you would not expect extensive relevant documents to be produced, even in a wrongful death case. But in a products’ liability case, some defendants will sometimes produce thousands and even millions of documents that are responsive to plaintiff’s requests.
Defense attorneys will also attempt to get, via subpoena, all the prior medical records of a plaintiff who files a personal injury lawsuit.
One of the most potent discovery mechanisms available in personal injury cases is the deposition. The process begins with the deposition notice that sets for the time and place of the deposition (this is usually done by consent between the lawyers) Typically, a deposition takes place in the offices of your lawyer or the insurance company’s lawyer. A deposition is under the same oath as the one taken at trial. A deposition is usually the first opportunity to confront the opposing party or witnesses sympathetic to them. This is done through questions and answers between the adverse lawyer and the other party. If a lawyer takes a quality deposition, it can be an extremely effective means to challenge the other side’s contentions and to exploit the weaknesses in the defendant’s case.
Most insurance companies lawyers also depose the plaintiff in any serious personal injury car accident case. Many defense lawyers say the primary reason for doing so is simply to get a feel for the plaintiff, to see whether the client is honest and would make a good impression in front of the jury. If the client does not come across as sincere and sympathetic as his deposition, it is very unlikely that a jury will be willing to significantly compensate that victim.
Conversely, if our client is good, honest and sympathetic, these cases often go to trial because computer programs that the insurance companies use (like Colossus) to calculate damages, cannot measure real human suffering. Juries can.
One of the most important things about a deposition is that a court reporter is present to take down all of the questions and answers, and a transcript will be produced. The deponent (person being asked the questions) will be “stuck” with all of the answers that they give to these questions.
Therefore, it is imperative that the plaintiff in a personal injury lawsuit be a good and honest historian of their medical treatment (past and present) and the damages that they will be claiming at trial.
Requests for Admissions of Fact
Requests for admission are a remarkably underutilized discovery tool. Requests for admission, if propounded properly, can force the other side to admit critical factual elements of a personal injury case such as the way the accident occurs. It also allows you to resolve procedural problems in getting documents authenticated and admitted at trial. We propound Requests for Admission of Fact in virtually every case we file.
In any personal injury car accident case in circuit court in Maryland, expert witnesses play a critical role. Typically, the most relevant expert for the plaintiff in a car accident case is doctor(s) that treated or evaluated the plaintiff’s injuries. Both plaintiffs and defendants are required to designate the experts to testify in the case.
In a personal injury car accident case, it is crucial that the doctor testify that, to a reasonable degree of medical probability, the plaintiff’s injuries are related to the crash and that the plaintiff’s medical bills and treatment were fair, reasonable, medically necessary and causally related to the accident. In Maryland, parties are required before trial to designate the experts expected to testify at trial.
Often, the opposing attorney will then take the deposition of the doctor to find out, in more detail than medical records provide, what the doctor will say at trial and pin down his opinions. Just as a plaintiff or defendant is ‘stuck’ with the testimony provided at deposition, the same goes for a doctor who is also deposed under oath in personal injury cases.
Independent Medical Exam
In personal injury accident cases in Maryland, the insurance company’s lawyer has the opportunity to designate a medical expert that may evaluate the injury victim. The insurance company’s lawyer usually seeks such an examination when they wish to contest whether the injuries complained are causally related to the accident or the extent of the injuries that the plaintiff claims to have suffered in the accident.
The examination is called an independent medical examination. Maryland Circuit Court Judge Thomas P. Smith in Prince George’s County wrote in an article published years ago that “Of all the oxymorons in the world an Independent Medical Examination occupies first place by thousands of leagues. There is nothing independent about the process; it is hardly undertaken for any medical purpose and often resembles an inquisition rather than an examination.” Maryland auto accident and truck lawyers (exam as less frequent in medical malpractice cases) agree and typically refer to it as it is: a defense medical exam.
Under Maryland Rule 2-423, the defendant’s accident lawyer in Maryland must seek permission from the court when seeking a medical examination. As a matter of practice, these motions are not filed if the accident lawyers agree on the conditions of the examination.
Most Maryland personal injury lawyers are familiar with the doctors who perform an excessive number of independent medical exams for insurance companies. When the defendant’s accident lawyer seeks to an examination with one of these doctors, the injury victim’s accident lawyer should serve that doctor with a subpoena to discover exactly how much of the physician’s income is derived from offering medical opinions for insurance companies. Once doctor’s financial information is obtained (if the doctor does not withdraw when his financial records are requested), they can be used very effectively during cross-examination at trial. How? To undermine the doctor’s credibility when the documents reveal that a large percentage of the doctor’s income is directly related to his performance of independent medical exams for defendants and/or their insurance companies.
Pre-Trial Settlement Conference
Before trial in Maryland, there is a formalized process by which the parties meet typically with a judge or retired judge who attempts to mediate the conflict. This pretrial conference is usually the best opportunity to resolve a case before trial because all of the lawyers and their clients (usually an adjuster from the insurance company in a personal injury auto accident case) are together in the same room with a judge who encourages the parties to settle and assists in the discussions. But our lawyers are always ready, willing and able to go to trial. The job for the lawyers is to lay out the pros and cons of settlement versus trial to our clients and let them make the best choice for themselves and their families.
Some Maryland courts, rather than discussing settlement at a pretrial conference, order the parties to attend ADR (Alternate Dispute Resolution) also know as mediation. The court will assign a mediator, usually a lawyer in the community with experience handling personal injury cases, to meet with the parties and their lawyers for an informal meeting, much like the pretrial settlement conference. Mediation can be a very effective way to get a case resolved. The atmosphere is usually more relaxed than a trial and mediators will typically spend as much time with the parties as is necessary to reach resolution. Select here for a sample mediation statement.
In a personal injury car accident case, the judge or jury is charged with marking a determination as to whether the defendant is liable for the injuries to the plaintiff and, if so, how much compensation should be awarded to the plaintiff. In cases before a jury (which constitutes almost 100% of Miller & Zois’ serious personal injury auto accident cases), the trial begins with jury selection. (Get sample trial materials including actual trial transcripts.)
During jury selection, the judge will ask questions to the jury. In Maryland, typically the judge reads for a list of questions prepared and agreed to by the personal injury attorneys in advance. There is no extensive oral questioning by the lawyers in Maryland (unlike many other jurisdictions and on television). The judge can excuse potential jurors at this stage, based on their responses to these written questions read aloud to the jury. Plaintiff and the defendant may also exclude a certain number of jurors through use of peremptory challenges and challenges for cause. A peremptory challenge can be used to exclude a juror for almost any reason. A challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case. When we pick juries, we look for people with characteristics we believe will be favorable to our side of the case and its facts. However, often it is difficult to learn very much information about the jurors because jury selection typically lasts less than an hour in most personal injury cases, with some jurors never answering or elaborating in response to the judge’s questions.
Opening statements are made by each attorney for the purpose of outlining what that their client intends to prove at trial. (For example, a plaintiff’s attorney in a personal injury case will tell the jury the facts of the car accident, what the evidence they intend to present to show that the accident was the fault of the defendant, and outline the damages sustained by their client, and what evidence they will produce regarding those damages).
The judge will typically instruct the jurors that what the lawyers say in opening statement is not “evidence” in the case but is merely a forecast of what they think will happen in the trial.
At the heart of any personal injury trial is what is often called the “case-in-chief,” the stage at which each side presents its key evidence and arguments to the jury. The plaintiff presents its case first. In its case-in-chief, the plaintiff sets forth its evidence, in the form of witnesses and exhibits (usually documents and photographs) in an attempt to convince the jury that the defendant is legally responsible for the plaintiff’s injuries and damages. All elements of liability (who is at fault for the auto accident) and damages (injuries, medical bills, lost wages, pain and suffering, etc.) must be presented to the jury during the plaintiff’s “case-in-chief”. Especially in more complicated personal injury lawsuits such as medical malpractice and defective product claims, a plaintiff’s utilization of expert testimony and documentary evidence will be crucial in proving the damages sustained by the plaintiff. Any evidence that can be considered beyond the scope of a layperson will need to be presented through the testimony of an expert (physician or other person with special knowledge or training).
All witnesses presented by the plaintiff will be cross-examined by the attorney for the defendant. Cross-examination attempts to poke holes in their testimony, discredit the person, or just generally attack their credibility.
After the plaintiff has “rested” or finished its case, the defense presents its case. If liability (how the auto accident happened) is in dispute, the defense will present witnesses (usually the defendant at a minimum) who support its version of how the accident occurred. Expert witnesses, such as a doctor, may also be presented to dispute the damages claimed by the plaintiff.
Once the defense has rested, the plaintiff has an opportunity to respond to the defense’s arguments by giving “rebuttal evidence,” a brief period during which the plaintiff may only contradict the defense’s evidence (rather than present new arguments). For example, if the defendant testified that the accident occurred at 2:30 am and it was dark outside, the plaintiff could present a witness to testify that the crash occurred at 2:30 pm and it was sunny outside (if this were relevant, of course). Plaintiff does not get an opportunity to present evidence that was forgotten or missed in its case-in-chief.
In Maryland law, after all the evidence has been presented, the judge instructs the jury as to the applicable law in the case. The judge will give the jury instructions that tell the jury which rules must be applied to the facts of the case to reach a verdict. Typically, the attorneys and the judge discuss ahead of time the instructions will be given. Maryland has standard pattern jury instructions, and the judge will ultimately determine which of those instructions apply to the facts of a particular personal injury case.
After the jury has been instructed as to the applicable law, both attorneys summarize what they believe the evidence has shown and recap the case in what is called a closing argument. The plaintiff’s attorney argues that the evidence has shown that the defendant is legally responsible to the plaintiff for plaintiff’s injuries. Conversely, the defense attorney usually argues that the plaintiff has failed to sustain “burden of proof”, meaning, has not established the defendant’s responsibility, either because he is not responsible, under the law, for the accident and/or for the personal injuries claimed.
Jury deliberation is the process by which the jurors discuss the case and reach a verdict. This is the first opportunity that the jurors have to discuss the case. Before this, the judge has told the jurors not to discuss the case until all the evidence has been presented. There are no rules that govern how a jury deliberates, other than the jury must only consider the evidence before them and cannot conduct any independent research or investigation to help them decide the case. Deliberations can last anywhere from several hours to several days. The jury’s verdict must be unanimous in a Maryland personal injury case.
In certain circumstances, an appeal of the jury’s verdict is warranted in a personal injury case. However, a verdict cannot be appealed simply because a party does not like the verdict. There must be legal grounds for an appeal (a judge committed an error by excluding evidence, some procedural requirement was not followed, etc).