Maryland Injury Law Center

June 13, 2011

Social Media and Trial Prep

No, this isn’t another polemic about how personal injury lawyers should blog or tweet. I don’t care if you blog or tweet.

Social media has been a boon for two types of people: stalkers and defense lawyers. Personal injury lawyers are not using social media offensively in great measure. Not a lot of doctors are tweeting “I knew I should have counted the instruments before I closed on Mr. Smith. Alcohol makes me silly.” And while you might occasionally hit the jackpot, it is unlikely the guy who rear-ended your client on I-83 tweeted out pictures of himself red-faced and hoisting a giant peach margarita at Water Street a half an hour before the accident.

More often than not, jury trials are about the credibility of our clients. Our clients’ veracity or lack thereof is usually the fulcrum on which the outcome of a case hangs. Social media is a great opportunity for defendants to find – maybe out of content or maybe in context – evidence that contradicts our client’s claim. Continue reading

June 7, 2011

Motion to Compel: Requests for Admission

by Ronald V. Miller, Jr.

You are the Plaintiff’s lawyer. You are bent on getting your case ready for trial from the moment you file a lawsuit. After you have almost completed discovery, you send out requests for admission to truly narrow the issues you will face at trial. Good job. You are more thorough than probably 99% of Maryland personal injury lawyers.

But ninety-nine percent of the time, you will get obstructionist answers to your requests for admission. Even good, reasonable defense lawyers file woefully inadequate responses. Two reasons for this: (1) No one wants to admit anything before trial (including, ironically, the things they have already admitted); and (2) there is little chance anyone will hold their feet to the fire.

The reason for the latter is simple: it is painfully tedious to file a motion to compel evasive answers so most personal injury lawyers don’t.

June 6, 2011

How the Angry, Liar Plaintiffs’ Lawyer Succeeds

by Ronald V. Miller, Jr.

Steve McConnell writes a post for the Drug and Device Lawyer Blog about an angry liar of a plaintiffs’ lawyer who keeps hitting 8-figure verdicts and settlements.

How can this happen? Steve figures out the solution to this problem the way most of the vexing litigation challenges are solved. This lesson came during an invariably pandering lunch with an in-house counsel client who figured the paradox of why juries reward dirtball plaintiffs’ lawyers with big verdicts. The answer is that an angry jury — no matter the source of the anger — is bad for the defense.

Their message in all of this for trial lawyers is clear: we should turn hundreds of years of psychology and trial advocacy on its head because some in-house counsel type – who may or may not have taken trial ad in law school – offers his solution during a suck up lunch.

I will give Steve the benefit of the doubt here and assume he is acting as a double agent disseminating bad information for plaintiffs’ lawyers. I could send the Drug and Device Law Blog the zillion of trial advocacy/trial strategy books my firm has bought over the last 10 years. (I could put the Drug and Device Law Daughter mentioned in the post through college with the money we have blown on these books.) No one has remotely suggested this is a wise tactic. Ever. This flies in the face of not only conventional wisdom but “new school” trial advocacy (see, for example, David Ball on controlling a witness without controlling a witness.) Making people not like you is just a bad idea.

June 1, 2011

David Ball on Damages: Cross-Examination of Experts

by Ronald V. Miller, Jr.

“There is only one reliable tool for undermining defense experts,” David Ball tells us in Damages 3.

What? There is only one? Really? This is a big deal because, as any trial lawyer will tell you, cross-examination of defense experts can sometimes make or break a personal injury case. Even assuming this is a bit of hyperbole, if the Dean of Damages thinks there is just one thing, it is worth making sure – at a minimum – you know what that one thing is.

So take a second. What do you think David Ball says is the only reliable tool to use when you cross-examine experts? Continue reading

June 1, 2011

Haro v. Sebelius Fallout: Good and Bad

by Ronald V. Miller, Jr.

Last week, I wrote an upbeat post about a U.S. District Court in Arizona opinion in Haro v. Sebelius as hopefully a harbinger for a less Draconian system governing the logistics of dealing with Medicare/Medicaid liens in personal injury cases.

But the rain is getting a little heavier before the rainbow. Medicare/Medicaid has stopped sending Rights and Responsibility (RAR) and demand letters while trying to figure out just how to deal with Haro v. Sebelius. So trying to get Medicare on the phone for information is a challenge squared. My office spent two hours – literally on hold – last week. “On hold” is the operative phrase – lien resolutions are at a standstill which is tough medicine for everyone.

May 26, 2011

Lawyer Pleads Guilty to Fraud

by Ronald V. Miller, Jr.

The Washington Post reports that a Maryland personal injury attorney pleaded guilty yesterday to insurance fraud. The lawyer worked with a chiropractor to submit false car insurance claims. Not content to cheat just for his clients, he brought his own bike accident claim and got an $11,000 settlement from an insurance company.

Wild story. It is very easy to get up on a soapbox and condemn, but it is too easy of a target. It is like writing a rant that Charlie Sheen is crazy. Everyone gets it.

This lawyer has “admitted full responsibility”, according to his lawyer. This is good. But, respectfully, criminal lawyers always talk too much. “[He] is devastated by his terrible judgment,” the lawyer added.

May 26, 2011

Are Maryland Drivers Dumb?

by Ronald V. Miller, Jr.

maryland drivers rankings Maryland drivers are ranked just behind Washington, D.C. as the dumbest drivers in the country, ranking 49th in driver knowledge a new GMAC Insurance study. Last year, Maryland ranked 20th.

Statistically, it is a remarkable shift that could not result from mere chance. There are two possible explanations for the disparity. The first is that the rest of the nation is working hard on learning about driver safety and Maryland is just not keeping up. This appears to be the view of the “Take Everything at Face Value” Baltimore Sun, which draws with ease meaningful conclusions from this study.

The second is that this GMAC Insurance study uses the same rigorous methodology as my mom’s study on the efficacy of Vitamin C (her kids did not get sick much) and the only reason GMAC Insurance puts out this silly study is to attract publicity from idiots like me and the Baltimore Sun, reminding everyone that GMAC Insurance still exists.

May 26, 2011

Therese Goldsmith: New Maryland Insurance Commissioner

by Ronald V. Miller, Jr.

Ignoring a little-known statute that requires that the Maryland Insurance Commissioner and similar positions must be filled by white men in their 50s, Governor O’Malley has appointed Therese Goldsmith as the new Maryland Insurance Commissioner.

Most Marylanders do not understand what the Maryland Insurance Administration does, picturing that old white guy with his secretary and two minions. But the MIA is a major operation with a $30 million budget. It employs a zillion more people than you think.

Therese M. Goldsmith graduated from the University of Maryland Law School in 1998 and went to Venable. She made partner in short order at Hogan & Hartson. Governor Martin O’Malley appointed her to serve as the Maryland Public Service Commission in 1998, which regulates public utilities and some transportation companies in Maryland. Now she is stepping into Ralph Tyler’s shoes, who is now with the FDA. I don’t think I agreed with Ralph on everything, but he was a good guy who was kind enough to regularly speak to my insurance law class at UB.

May 26, 2011

Medicare Liens: New and Better Law?

by Ronald V. Miller, Jr.

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I’m sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children’s Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged – as a class – two things: (1) Can Medicare/Medicaid (hereinafter “Medicare because I’m sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let’s be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client cannot pay the reimbursement claim after the settlement money has been turned over to the client.

May 24, 2011

Attention Drunk Drivers: Expect a Roadblock on Route 40 Tomorrow

by Ronald V. Miller, Jr.

On this website [update: since taken down] soliciting drunk drivers, a nice heads up is provided as for drunks how to avoid specific sobriety checkpoints. This is just one post but most of the blog/website seems focused on giving a heads up which checkpoints to avoid.

I’m not sure why the police announce checkpoints. There is probably a statute or other logical reason that escapes me. But what does a website for DWI lawyers trying to accomplish in publishing this? A public service?

I am a big fan of sobriety checkpoints. I’m not a big fan of everyone chipping in to tip off the drunks. Lawyers who are paying for leads from these people really need to speak up. I will pose as a drunk driver and then lecture the lawyer who contacts me. (Actually, I’m not really going to do that.)