Articles Posted in Litigation Strategies

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).

When I try a case with another lawyer (usually my partner, Laura Zois, if we are trying a large case), I always want to do the opening statement and direct examination of our client because I believe these are the most important components of a trial. Particularly the opening statement. I remember once seeing data that said the opening decides 90% of cases. I do not believe it is actually this high, but that number has always stuck in my head.

It is a brilliant marriage because Laura believes you win by cross-examining the defendant’s expert and delivering an effective closing statement. When we have been successful in trying a case, we both claim (to ourselves) credit for the victory. It works out great.

I will blog more over the next month about opening statements and direct examinations, starting today with direct examinations. I was looking today at Ralph Adam Fine’s The How-To-Win Trial Manual (Juris 3d rev. ed. 2005) and found an improvement I need to make in my direct examinations.

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).

Last week, I received the following email from a doctor:

“I was looking through your website and I noticed that you talk about Colossus and its value for cases in your state. I hold the largest personal injury seminar in the southeast and our next Colossus Seminar is October 28th. You should not only bring your firm but also invite all the physicians you work with. If your doctors do not know the value drivers to add in their medical documentation, then you cannot add them into your demands.”

Okay, now if a personal injury lawyer asks a medical doctor who often sees the lawyer’s clients go to this seminar, what would the doctor say? How does the lawyer frame that question? Gee, listen, can you take time away from caring for your patients to travel outside of Maryland with me to a seminar so you can best learn how to rig your medical records?

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.

The Maryland Daily Record published in an interview on Friday with Maryland Court of Appeals Chief Judge Robert M. Bell who had some interesting comments on seeking certiorari that I think would interest any personal injury lawyer seeking an appeal to a higher court where the appeal is not a matter of right. Below is an excerpt of that interview as it relates to petitions for certiorari:

Question: What are the most important points that lawyers and their clients should remember when preparing a petition for certiorari?

Answer: When drafting a petition for certiorari, one should focus on getting the court interested in the case, so one should be focused on what makes that case unique. And the more one is able to do that concisely, the more likely it is that the court is going to be inclined to grant certiorari. Also, bear in mind that the court is not going to be particularly interested in reviewing the case if it has 10 or 12 issues; the fewer points of interest, the more likely it is that we will take the case.