Articles Posted in Litigation Strategies

I stumbled on a Metro Verdicts Monthly from last year that examined the success plaintiffs have at trial in slip and fall cases on snow and ice. In Maryland, defendants prevailed 62% of the time.

The difficulty in these cases often lies not with whether the defendant was negligent, but whether the plaintiff assumed the risk because he/she appreciated the danger of walking on the snow/ice. Under Maryland law, this is the assumption of the risk, unless the plaintiff lacked the free will to avoid the danger. This is presumably the case when going to work, entering or leaving your home, and tending to other necessities of life. That no reasonable alternative path was available does not reduce the free will standard.

Morgan State v. Walker

When I received an advertisement for a book on Deposing Difficult Doctors by Florida personal injury lawyer, Kim Hart, the title caught my attention. The advertisement included excerpts from the book. What caught my interest is videotaping “independent” medical exams (IMEs). The book makes two arguments in favor of videotaping IMEs:

1. “If you make it a practice to videotape all compulsory medical examinations, you soon will have videotapes of most of the doctors used by the insurance companies in your area. Give your client a copy of a previous videotaped compulsory medical examination and the transcript from the examination of the doctor who is scheduled to examine her. This will take all the mystery and surprise out of the situation and help calm your client’s fear of the unknown.”

2. “A defense-oriented CME [I assume this stands for compulsory medical exam] doctor often plays Mr. Nice Guy at the examination. He will make sympathetic statements to your client such as, “I can see you have suffered a lot” or “I can tell that this injury has had a serious effect on your life.” If a physician is two-faced and projects Mr. Nice Guy at the compulsory medical examination but Attila the Hun at trial, showing the jury a tape of the examination can communicate to them instantly what a scheme he is.”

My partner, Laura Zois, conducted a videotape trial cross-examination of frequent flyer defense medical expert, Dr. Robert O. Gordon, a doctor who makes a lot of money working for insurance companies and, frequently, for State Farm. During his examination, he spewed out many inappropriate and factually incorrect statements. Here is an example:

Q. And why not, Doctor? Would you explain the reasons for your opinion?

A. Well, first of all, there was nothing in the emergency room report, or in the report of the doctors that he was sent to by his attorney, that indicated that —

The National Law Journal reports that a few personal injury lawyers are relying on handwriting experts to help the lawyers in selecting juries. Handwriting analysis uses various clues, including the amount of pressure used, the size and angles of the letters, and spaces between words to paint a picture of a potential juror.

Attorneys have no opportunity to see the handwriting of prospective jurors. But personal injury lawyers in other jurisdictions review juror questionnaires that would provide a handwriting analysis. I remember reading somewhere that handwriting that is flamboyant and flowery would be preferable than tight and concise. (I’m not sure what someone would make of mine because it is illegible!) But if I practiced in a jurisdiction where I saw the jurors’ handwriting, I would want to see a study on point before spending a lot of resources analyzing their handwriting.

Evan Schaeffer’s Illinois Trial Practice Weblog has a link to a company that provides online mock juries. I find the idea fascinating. Evan correctly points out that a virtual mock jury does not give the lawyers the benefit of the give-and-take argument among jurors meaningful to the process. I also think you lose something using jurors with different demographics. If a lawyer will try a case in Baltimore City, the opinion of a woman in Omaha might not be helpful. In fact, that all the jurors are “Internet savvy” might make them unrepresentative of certain jury pools. Still, for the $1500 cost (goodness this is a lot more in 2019), I can see where some lawyers looking for information on how jurors might respond to certain issues might gain some enjoy this process.

One thing is for sure: the Internet will continue to change the practice of personal injury lawyers in ways that we cannot contemplate.

2019 Update: We used an online focus group for an upcoming trial.  You just present the sterile information to them and see where they run with the evidence.  I can’t remember the cost, but I thought it was ridiculous.  But the process made sense for this case.  It provides meaningful insights into how jurors in that same jurisdiction are likely to approach the key issues in your cases, which gives you usable information about your strengths and vulnerabilities.  Jury focus groups are also good at spitting out the statistical data that I love.  Do men like the case more than women?   Is the ideal juror older or younger?   There are is just a ton of summary type data that can give you a real insight into not only the issues that matter but who you want on your jury panel.

I received an email from a personal injury lawyer in Baltimore last night asking about a liability dispute case the lawyer has. I thought I would respond to him in today’s blog.

This lawyer’s client filed suit pro se for his property damage claim, which will be heard next month in Baltimore City District Court. The lawyer knows that you can settle a property damage claim and later sue for bodily injuries. See Maryland Insurance Article Section 12-306(2). So the lawyer’s preference is to stay out of the property damage case and let the client move forward on his own.

But there is a res judicata effect to a judgment on the merits of the property damage case. If the client gets a verdict in the property damage case, it will bar his personal injury case (assuming there is no jurisdictional barrier to prevent the plaintiff from bringing all of his claims in the property damage case).