Litigation Strategies

August 9, 2007

My Duel Life as a Legal Malpractice Defense Expert

One-hundred percent of our law firm’s practice is personal injury cases. We do not and will not take any defense cases even if we believe in the defendant’s case. Yet, last year I found myself on the other side of the coin as a defense expert. I served as a legal malpractice expert for a local defense firm on behalf of a plaintiffs’ personal injury lawyer in Towson. I believe this lawyer did not breach the standard of care according to his version of the facts (and, parenthetically; I believe the most logical version of the facts). In this case, under the Plaintiff’s version of the case, the lawyer committed legal malpractice.

While I did not have the slightest trepidation about taking this case or the expert opinions I expressed, it was an odd experience to be back on the defense side for the first time in over six years. Regrettably, from an experience standpoint, the case settled before they deposed me. It would have been an educational experience because the legal malpractice lawyer who would have deposed me is a skilled and well-prepared lawyer, who would have been effective in challenging my opinions. Taking a unique role in a case changes your perspective, and I think helps you think more creatively about your cases. (Similarly, I have been a law professor for over 10 years. It would interest to be a student again after all the exams I have graded over the years. I think being a professor would make me a better student.)

Believe me, I am all in favor of plaintiffs’ personal injury lawyers suing other personal injury lawyers when one of us has breached the standard of care. The whole idea of lawyers “sticking together” is both absurd and wrong. Our lawyers handle legal malpractice cases that involved a catastrophic personal injury case. But I also think there is an obligation to come forward and testify on behalf of a fellow personal injury lawyer if you believe the lawyer has not breached the standard of care and committed legal malpractice.

June 26, 2007

Defendant’s Motion to Compel IME

by Ronald V. Miller, Jr.

Last week, a well-respected defense lawyer told one of our lawyers they possessed the Maryland Trial Lawyers Association’s “Handbook,” which spells out the terms for a defense requested medical examination. This “Handbook” has made its way into a Motion to Compel a Physical Examination, specifically including this “MTLA Handbook” as an exhibit to the motion. By this inclusion, I assume this is an authoritative source of legal guidance for the court on this discovery matter.

Now back to reality. Maryland Trial Lawyers Association does not have a “Handbook” on defense medical exams. Instead, it is just a copy of the link from our website setting forth our suggested conditions for a defense medical exam. Which we don’t even use anymore!

I think it is funny that this is being represented as some guide to fighting medical exams. I am glad people are using the Maryland Personal Injury Lawyer Help Center. My partner told me last week that a defense lawyer she spoke to said they often get motions from other lawyers copying our sample motions. The lawyer said they call them “Miller & Zois” motions.

May 8, 2007

Insurance Defense Lawyers: Who’s Your Daddy?

by Ronald V. Miller, Jr.

We are handling a red light/green light auto accident case that occurred in Towson, Maryland a few years ago that resulted in substantial permanent injuries to our client. Trial is a few months away. The insurance company for the Defendant is the Maryland Automobile Insurance Fund (MAIF). Their attorneys recently moved to bifurcate the trial into two separate trials for liability and damages.

The Defendant’s attorneys would not seem to benefit if the case is bifurcated. Their concerns–the cost and effort of the liability case–is of no consequence to their client. So, practically, why was this motion filed?

If the case is bifurcated, the chance of a bad faith claim against MAIF evaporates; it would offer its $100,000 (a large policy for MAIF, parenthetically) policy limit in the event Plaintiff prevailed on liability because, as Defendant’s motion tacitly concedes, this case’s value exceeds MAIF’s coverage. While bifurcation would be a loss for Plaintiff, it would also be a loss for the insured Defendant who will lose any leverage that he has to encourage MAIF to settle or any claim he has against them for bad faith should they not make reasonable efforts to settle. Should the case be bifurcated and Plaintiff prevails on liability, Plaintiff will proceed on with the damages trial that will probably result in an excess verdict. This would leave MAIF in fine shape, fully insulated from a bad faith claim and protected from allegations it failed to properly defend their insured by, for example, having a defense medical examination performed on the Plaintiff. The defendant would be left holding the bag.

May 3, 2007

Protecting the Injury Victim During Deposition

by Ronald V. Miller, Jr.

Goal number one when your client is giving a deposition is to do no harm.

The greatest harm your client can do in almost any personal injury case in his/her deposition is to get caught in a lie. Clients are most prone to “lie” about prior car accidents because they genuinely do not remember them. But a smart insurance company lawyer may turn an innocent failure to recall into a litmus test on the client’s credibility. As much as we as personal injury lawyers like to make the cases about ourselves – particularly when we get a great verdict, we all do it – the importance of our credibility/likability is a distant second to the importance to that of our client.

How can you solve the problem? Obviously, a good attorney spends time before the deposition discussing the issue with the client, explaining in very direct terms that prior medical history or claims history will be uncovered by any competent defense attorney or adjuster with access to a computer and/or the medical records. But, again, in some circumstances, the client may not remember whether they were injured on the job or made a claim for a car accident in which it involved them.

March 21, 2007

Slip and Fall Cases on Snow and Ice: Will You Win?

by Ronald V. Miller, Jr.

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

March 16, 2007

Videotaping a Defense Medical Exam: Should Personal Injury Lawyers Explore This Option?

by Ronald V. Miller, Jr.

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.”

February 23, 2007

Don’t Object Just Because You Can: Dr. Robert O. Gordon’s Deposition

by Ronald V. Miller, Jr.

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 —

February 16, 2007

Lawyers Using Handwriting Analysis in Jury Selection

by Ronald V. Miller, Jr.

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.

January 24, 2007

Virtual Mock Juries and Online Focus Groups

by Ronald V. Miller, Jr.

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.

January 18, 2007

The Impact of an Attorney Settling or Receiving a Verdict on a Property Damage Claim on Plaintiff’s Personal Injury Claim in Maryland

by Ronald V. Miller, Jr.

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).