Articles Posted in Legal News

Todd Lamb, executive director of Maryland Citizens Against Lawsuit Abuse, and Ellen Valentino write an editorial in the Maryland Daily Record on the apocalypse that would occur if Maryland joined 90% of states and adopted a comparative negligence standard. Essentially, the authors’ argument makes two points: (1) comparative negligence should not be adopted by anyone other than the Maryland legislature and (2) comparative negligence would cause great economic hardship for Maryland.

I understand the authors’ point that any change in the standard should come from the legislature. I think most of the Maryland Court of Appeals will agree with the authors on this. As Judge Bell pointed out in commissioning a study on contributory/comparative negligence, Maryland’s contributory negligence rule is a common-law rule. Arguably, the legislature’s failure to act is not an approbation of contributory negligence. Can the court never change a rule because the legislature has not changed it for them? But I’m getting too far afield… I can see arguments on both sides of this issue.

That Maryland’s economy will suffer from comparative negligence is just plain silly. Maryland, Virginia, Washington, D.C., Alabama, and North Carolina are the only jurisdictions in the country that have retained contributory negligence. Has any serious economist – which I define for these purposes as someone who has taken an introductory economics course – suggested that these economies are meaningfully stronger and have lower inflation because of contributory negligence? Please.

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Medicare liens are the bane of personal injury lawyers trying to settle every time. Settlements don’t and can’t parse out pain and suffering damages for medical bills. What goes to the wrongful death claim? What goes to the survival action? If you get a verdict at trial, this all gets resolved. But with undifferentiated settlements, it is hard to determine what money would have gone where.

• Big picture: how to deal with Medicare on liens (2019 update)
• Haro v. Sebelius: progress on Medicare lien process

Usually, the bigger problem is not that Medicare won’t reasonably reduce its lien. It is the cart before the horse logistics – it is virtually impossible to settle the lien before the case resolves, leaving clients up in the air and at Medicare’s mercy what their actual recovery will be. It would help settle personal injury cases with Medicare liens if clients could have a more clear ceiling to what the lien amount might be. The 11th Circuit Court of Appeals provided a little help on this with its recent opinion.

Underlying Facts of Case

The case was a Florida nursing home bed sore wrongful death case that settled for $52,500. (This was apparently the nursing home’s policy limit, which makes no sense to me.) Medicare had paid the medical bills so the plaintiff’s nursing home attorneys invited Medicare to take part in the settlement. Medicare did what I would not expect it to do in Maryland, claimed the entire amount. It also declined to take part in the probate hearing to divide up the settlement. So the trial judge moved along, valued the case over $2.5 million, and cut Medicare’s lien to $787.50.

The 11th Circuit ruled that Medicare may not claim full reimbursement from an undifferentiated settlement. The court found that Medicare must take part in any state-authorized process to prorate its lien claim or accept the result when it refuses to take part. Continue reading

Recreational activity torts, the stepchild of personal injury cases, appear to be making a minor comeback. The Supreme Judicial Court in Massachusetts reversed a trial court’s order of summary judgment in a case involving a woman hit by a ball from twenty feet away during an outdoor party. The issue on appeal is whether the party’s hosts had a duty to stop a softball game that a reasonably prudent person would know posed risks to guests.

The softball game itself was not really a softball game, just people goofing around. Random people were just taking turns hitting the ball. In fact, participants were told to bunt or swing down on the ball. It was a party, I’m sure it involved alcohol, and some people probably took good swings and hit the ball well. One of those good swings landed close to the Plaintiff, and another hit her, causing the injuries that gave rise to the lawsuit.

The court reversed the trial court’s entry of summary judgment, finding that §318 of the Restatement (Second) of Torts did not absolve the homeowner as a matter of law:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.”

I am a plaintiffs’ lawyer. Having chosen this profession, particularly after being a defense lawyer, it is not surprising that I lean towards plaintiffs on issues where reasonable minds differ. But I am mindful of imposing liability at parties when people are playing games involving risks that are open and obvious to everyone. The dissenting opinion, in this case, articulates this concern: Continue reading

An Ohio lawyer has been suspended for two-year years suspension for submitting “false and fraudulent” time sheets. Theoretically possible for the workaholic? Sure. But three of her bills reflecting over 24 hours of work in one day, once billing 90.3 hours of work during a 96 hour period. In another, she billed 139.5 hours of work during a 144 hour period.

Although the number of lawyers who paid their bills is probably on the downside in 2010 as more companies are looking for more ways to trim legal budget fat, lawyers who bill by the hour have been padding their bills since Emperor Claudius lifted the ban on lawyers billing over 2,000 years ago. Little known fact: Abraham Lincoln was a notorious bill padder, sometimes charging clients five times the number of hours taken to complete the task. There were scores of client complaints about Lincoln about his billing. (Before you pass this information along, consider the possibility that I’m completely making this up.)

Anyway, while most lawyers don’t, the fact that one lawyer was caught ridiculously padding her bills in not actually a Page 1 story. But I found the defense to the crime particularly interesting: it was the law school’s failure to teach law firm management.

The first reason this is so ridiculous is obvious. As Carolyn Elefant points out, if you can’t figure out you are not allowed to bill more than 24 hours in a day, a law school class will not set you straight.

But the whole idea of Law Firm Management as a course is an exercise in futility. You have to make believe lawyers pretend to run a make-believe law firm with make-believe problems. Students just are not going to really digest the problem. It is like suggesting the guy that won your fantasy football league three years in a row would make a great general manager.

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The Tennessee Titans have sued the University of Southern California and coach Lane Kiffin for “maliciously” luring away assistant running backs coach Kennedy Pola. The lawsuit claims the hire disrupted planning and “potential loss of confidence by players.”

The first complex legal question here is clear: do you really need an assistant running back coach? Wait, that’s not a legal question. Okay, how was it “malicious”? Was the purpose of the hire to destroy the Titans by hiring their assistant running back coach? What if they had gone after their head running back coach? Can you imagine the inhumanity?

Look, we all get it. Lane Kiffin is doing a lot of things to damage his reputation. But what kind of message do you send when you sue – against a university – for hiring a coach when the actual thing you are mad about is that Kiffin did not “ask” for permission to hire the coach?

Guy breaks into your house. You are terrified that harm will come to you, your spouse or your children. Yet something holds you back from taking decisive action to protect your family.. the threat of a civil lawsuit by the burglar.

Raise your hand if this has not happened to you on multiple occasions.  (Last time, I put my gun away and sent my 12-year-old black belt son after the burglar so I could avoid the inevitable civil liability.)

To stop this insanity,  House Delegate William J. Frank from Baltimore County introduced House Bill 207 to raise the negligence bar for people who use force against a home or office burglar to make them immune from civil liability unless they acted “with malice or gross negligence.”

Naturally, Maryland courts are clogged with frivolous lawsuits by personal injury lawyers representing criminals who were injured breaking into homes of the innocent. Just ask John H. Josselyn who is with the Associated Gun Clubs of Baltimore:

Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker. Defending a civil action, even when it is a frivolous lawsuit, involves great expense.

Deconstructing This Nonsense

Let’s take a breath and break this quote down and get our arms around whether there is even a portion of it that is not demonstrably false on its face. Continue reading