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.

If you are a personal injury lawyer who regularly tries cases, you have encountered a witness, most likely the defendant’s medical expert, that you just cannot cross-examine even if your technique of cross-examination is sound.

After you walk back to the trial table with your tail between your legs, what do you do? I found an old 1988 ABA article that shows how one lawyer handled in closing argument the witness that the lawyer could not cross-examine at trial.

In this espionage case where “Cannon” allegedly left a container of microfilmed defense secrets in a telephone booth outside the bar that a Russian agent picked up, the defenses are alibi and mistaken identification. The witness is FBI Special Agent O’Rourke who had been staking out the bar and gave an identification of Cannon as the woman he saw in the booth. Here is the transcript of the relevant portion of his closing argument:

Frequently, insurance adjusters, plaintiffs’ personal injury lawyers, and defense lawyers confuse two important concepts when a defendant driver is using someone else’s vehicle: permissive use vs. negligent entrustment. I had an adjuster confuse the two last months during settlement negotiations so I thought I would write today about the differences between these two concepts under Maryland law.

Permissive Use

Permissive use refers to whether or not the driver of a vehicle had the permission (either express or implied) of the vehicle’s owner at the time of the crash. Whether the driver had the owner’s permission is an issue that affects whether the owner’s insurance company will provide insurance coverage to the driver. This issue rarely affects who should be a defendant in a claim (but may affect who has coverage for the accident).

More often than ever before, our lawyers are having difficultly getting timely answers to discovery from defense lawyers. I do not think this is some nefarious plot. Rather, I think defense lawyers are used to answering discovery whenever they feel like it because no one holds their feet to the fire.

As a matter of practice, attorneys should send out a letter as soon as the discovery is late. Not to be difficult for the sake of being difficult but to make sure that the lawyer has complied with Maryland Rule 2-431, which does not allow the filing of discovery motions until there has been attempts to resolve it and a certificate under the rule accompanies the motion). What I see happening is that lawyers let discovery failures go and when they finally realize there is a problem, they have not complied with the letter or spirit of Maryland Rule 2-431.

I think judges are becoming more serious about the spirit of Maryland Rule 2-431 in trying to resolve discovery disputes. I attached one letter that requested discovery in a motion to compel in a Prince George’s County wrongful death/survival action case and the motions judge’s law clerk called me to ask if this was the only letter I had written. Fortunately, I had written several letters. But the point is lawyers in Maryland really need to push the opposing lawyer for discovery as opposed to writing a single form letter and then filing a motion.