Litigation Strategies

May 22, 2006

Recorded Statements: Why You Should Not Give and the Possible Exception

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer’s client to “firm up liability” or to “assess credibility.” But providing a recorded statement is typically a “loose-tie.” It rarely results in a finding on liability in favor of the accident attorney’s client. Not that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

Here is one fun trick when the third party insurance carrier asks for your client’s recorded statement

May 3, 2006

Is Failure to Use a Child Seat Contributory Negligence?

by Ronald V. Miller, Jr.

A lawyer in Virginia emailed to ask me if failure to wear a child seat is contributory negligence in Maryland?

Setting aside for a moment the abject irresponsibility of this mother who failed to ensure the safety of her child, the answer is no.

Maryland Law

The Maryland Transportation statute that requires the use of child safety seats specifically states that a violation of the statute, while a crime, is “not contributory negligence and may not be admitted as evidence in the trial of any civil action.” Maryland Transportation Code § 22-412.2(i).

Parenthetically, the same logic holds true with failing to wear a seat belt in Maryland. While it may be a crime, a “party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.” Maryland Transportation Code Annotated. § 22-412.3. In summary, the failure of a personal injury plaintiff to use a seat belt or a child seat is not admissible at trial, although it is a misdemeanor crime (I feel compelled to continue to repeat this).

Concerning the admissibility of the use of seat belts in Maryland, this sword cuts both ways in that personal injury lawyers often want to present evidence that the lawyer’s client was wearing a seat belt to underscore that the injury victim did everything that he or she could to prevent serious injury. But this testimony is also not permissible under § 22-412.3.

Nationally, there is a split of authority whether, under principles of mitigation of damages or as contributory or comparative negligence, an injury victim’s failure to wear a seatbelt can justify a reduction in the number of damages that he or she receives. But even in jurisdictions that allow such evidence, a reduction is usually justified only if the Defendant’s attorney can provide medical evidence to a reasonable medical certainty that Plaintiff’s injuries could have been eliminated or reduced had Plaintiff been wearing a seatbelt when the accident occurred. See DiPirro v. U.S., 181 F.R.D. 221 (W.D.N.Y. 1998). Continue reading

May 2, 2006

Independent Medical Exams: Personal Injury Attorney Cross-Examination of Defendant’s Medical Expert

by Ronald V. Miller, Jr.

A few days ago, I wrote about a judge’s article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith’s comment about the oxymoronic phrase independent medical exam.

Counsel on both sides of the aisle have their own unique problems. One of the enormous problems the insurance companies have is getting credible medical experts to testify at trial. They are in a catch-22: they need doctors who regularly testify because of the volume of cases they have, but doctors who will have spent much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact rarely lost on jurors.

When the defense lawyer asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor’s records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedded to litigation related work and, specifically, to the insurance companies. The defendant’s lawyer is forced to withdraw the expert.

February 15, 2006

David Ball’s New Book Damages

by Ronald V. Miller, Jr.

Psychologist David Ball has published a second edition of his book on damages called, appropriately, Damages. The book costs $85 (only $35 in 2017). The first edition was a similar price, felt, and looked like a thin, big print paperback. But looks are deceiving in this case. The book is excellent, offering insight based on systematic research on how jurors decide damages. Dr. Ball discusses juror motivations for awarding money, why some jurors are reluctant to award compensation, and specific strategies to enhance damages for voir dire (which does not really apply in Maryland), opening, direct and cross-examination, and closing.

I heard Dr. Ball speak last year at the Maryland Trial Lawyers Association convention. He was impressive. Like me, he believes in juries and realizes they are far smarter than most personal injury lawyers believe they are. Dr. Ball does not give you information to “trick” the jury because he knows juries almost rarely fall for such artifices. Instead, Dr. Ball looks at some of their motivations for not giving fair compensation and how to overcome those obstacles.

Reptile