Articles Posted in Litigation Strategies

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).

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.

The Baltimore Sun ran a story today about Baltimore County, Maryland prosecutor James Gentry was preparing to try an awful murder case of a nine-year-old girl in 1998. If you are a prosecutor, this is one you need to win. Looking for an extra edge, he turned to his sister who worked for a company that made PowerPoint presentations to private companies, a novel innovation in 1998 for anyone much less a lawyer.

Gentry’s used this innovative technology in his closing argument in the infamous 1998 murder trial in Baltimore County of Rita Fisher. His success launched his interest in using technology for courtroom presentations. After years of traveling across the country to teach other lawyers how to use the technology, Gentry has joined the highly respected medical malpractice law firm in Baltimore of Salsbury Clements Bekman Marder & Adkins to assist their lawyers in creating computerized presentations to assist jurors in understanding the complexities that often come with sophisticated medical malpractice cases.

As I showed yesterday, my post today is on a trial we had last month in Baltimore, Maryland. Our client was making a left on a light turning red and hit a car coming in the opposite direction making a right turn. These are tough cases in Maryland, Virginia, the District of Columbia, Alabama, and North Carolina because these five jurisdictions still have contributory negligence as opposed to comparative negligence. As lawyers who do not practice in these jurisdictions will remember from law school, any contributory negligence by the Plaintiff is a complete bar to recovery. But the case was from a Baltimore lawyer who refers out many personal injury cases. When in doubt, we will take a chance when the case comes from one of our loyal referring lawyers.

AIG offered a whopping $5,000 to settle. One of our lawyers, Rod Gaston, tried the case. The jury found both parties negligent. Again, contributory negligence is an absolute bar to recovery. But the jury awarded the Plaintiff $118,000. The judge did what the jury required him to do and entered a verdict on behalf of the Plaintiff for $118,000.

Naturally, AIG’s attorney filed a post-trial motion to revise the verdict.