Articles Posted in Litigation Strategies

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.

The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland.

As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series that aired years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed outlandish. But this story sounds equally bizarre.

Maryland Long-Arm in Action

Rene Stutzman of the Orlando Sentinel reported this week the post-trial tactic of the defendant’s medical malpractice lawyers after a $28 million verdict in Florida. The tactic: if you lose the trial, put the jurors on trial. Defense attorneys say three of six jurors lied during jury selection and are seeking to bring the jurors back into court to explain themselves. As I explain below, I think this request, if allowed, is a blow to the integrity of the jury system we have. This request would be denied under Maryland law.

The medical malpractice action in the Florida stemmed from a minor surgery performed by Dr. Robert Bowles, an obstetrician-gynecologist, for minor incontinence. Plaintiff alleges that Dr. Bowles negligently performed the procedure and, as a result, she cannot urinate naturally. Instead, the Plaintiff must catheterize herself twice a day for the rest of her life. We are talking about serious damages in this case.

An Offer the Doctor Should Have Taken

Still, the Plaintiff’s attorney told reporters that he had offered to settle for $275,000 before trial. Instead, the doctor and his attorneys rolled the dice, and they got hit with a $28 million verdict. Florida has a cap on pain and suffering damages so she will receive nothing resembling $28 million in even the best-case scenario. (But would you take $28 million for this woman’s injury?)

The doctor’s attorney now alleges that three jurors lied during voir dire, claiming that two jurors did not disclose that they were involved in lawsuits and a third did not mention all the lawsuits she had been involved with in the past. Most of these lawsuits, however, involved unpaid debts in which she was a defendant.

Our Experience with This Nonsense

One of our attorneys tried a case recently where the defense lawyers in post-trial arguments claimed juror misconduct. These lawyers contended that although a voir dire question was asked in the present tense, the juror could not have possibly understood that the question was in the present tense because the question was presumably read quickly. The logic of the argument is that although the juror inadvertently answered the question honestly, she had malice in her heart because she must have understood the question in the present tense. Why? Because she could not possibly have understood the question posed “in an instant during voir dire.” The defense attorneys claimed that while she told the truth, she must have meant to lie.

It flabbergasted me. Can you imagine making this argument with a straight face? Calling this argument ridiculous seems drastically understated. The Anne Arundel County trial judge summarily rejected the argument. Defendant’s attorney noted an appeal but shortly thereafter agreed to pay the entire judgment.  Why?  The claim was just silly.  Continue reading

A former insurance law student of mine asked this week whether Pittsburgh Steelers quarterback Ben Roethlisberger’s failure to wear a helmet in his motorcycle accident earlier this month would be contributory negligence under Maryland law. Good question! Under the current state of the law, the answer is a qualified no.

The Maryland Court of Appeals addressed this issue 36 years ago in Rodgers v. Frush, 257 Md. 233 (1970). This case involved a motorcycle collision case in PG County where the Defendant sought to introduce evidence at trial from a medical doctor who would testify that the Plaintiff’s failure to wear a helmet exacerbated his injuries from the motorcycle accident. The Plaintiff argued that this evidence was not relevant to contributory negligence because it did not involve the Plaintiff’s or Defendant’s standard of care. The court agreed, and our high court affirmed. The court noted that while Maryland had passed a helmet law three years after the accident, this did not establish a standard of care.

I earlier said the answer is a qualified no because the court said there was not a standard of care that one should wear a helmet. There is now a helmet law in Maryland. But this appears to be dicta, given the core of the court’s holding that failing to wear a helmet does not go to the question of the standard of care.

A related question is whether this evidence could be admitted under the doctrine of avoidable consequences. Plaintiff compliance with the appropriate safety requirements could have avoided similar to the contractual rule of mitigation of damages, the damages that could have been avoided are reduced from the recovery.

The Court of Appeals in Rodgers considered this issue. The court determined that the doctrine of avoidable consequences applied only to conduct that occurred after the tort (again, analogous to the mitigation of damages). The court also cited a North Carolina case with approval that articulated that it also would not apply the doctrine of avoidable consequences because it would (1) not ask jurors to parse damages because this would invite verdicts on prejudice and sympathy contrary to the law, (2) create ‘unnecessary conflicts in result,’ and (3) degrade the law by reducing it to a game of chance. (I frankly do not understand how the latter two factors apply to the doctrine of avoidable consequences.)

The arguments on this helmet issue are very similar to the arguments on failing to wear a seat belt issue, which was addressed in an earlier blog post.

Here is how a few other jurisdictions have addressed this issue:

Continue reading

In his blog last year, Evan Schaeffer attached an article by Chicago attorney Paula E. Litt titled “Tips for Making Damages Testimony Come Alive.” Ms. Litt’s article offers twelve tips: (1) Speak plainly; (2) Establish credentials wisely; (3) Tell a good story; (4) Play from higher ground; (5) Show pictures; (6) Get the expert moving; (7) Use examples; (8) Keep it simple; (9) Be enthusiastic; (10) Don’t get caught short; (11) Know your expert; and (12) Don’t underestimate the jury.

Ms. Litt handles mostly copyright and insurance coverage cases so some advice seems tailored toward business litigation (it would be odd for an accident attorney to “be enthusiastic” when discussing with an expert the loss of future earnings of a father who was killed in a car accident). I also do not agree that attorneys should assume that the jury knows as much about the damages as the lawyer does, which she articulates under the otherwise sound notion of not underestimating the jury.

The only other “problem” with this article is that most of her sound advice is really directed to the expert, not the lawyer calling the expert to testify. As much as we would sometimes like to, we cannot change our witnesses.

Voir dire is the selection process in which prospective jurors are questioned and challenged to weed out jurors who may hear the case with an inordinate amount of prejudice and bias that lurks in the thinking of every Maryland juror. In most jurisdictions, the potential jurors are examined either by the prosecutor or, in a civil case, the plaintiff’s attorney for both cause and peremptory challenges.

Unfortunately, in Maryland, voir dire is limited to questions proposed by counsel to be asked by the judge. There have been studies done in the voir dire context that show questioning from a judge inhibits juror candor. What then do Maryland lawyers rely upon in picking a jury? Gut instincts and stereotyping.

Before every trial, I read anything I can get my hands on to get a better idea of what I am looking for in potential jurors who will be receptive to my client. One very early morning, around 1:00 a.m., before a huge trial, I went to my good friend Google and did a search. I found a law review article from Ohio Northern University (have you ever heard of it?) from 1990 that summarized the literature on stereotypes in juror selection.

What Jurors Do You Want?

I disagree with at least a full third of the article, but it is fascinating. Here are some conclusions of the studies/article summarized: Continue reading