Articles Posted in Litigation Strategies

I spend a lot of time responding to random questions from other lawyers. I will publish some responses to the extent they are helpful to anyone else. The topic for today is the practical ramifications of requests for admission deemed to be admitted at trial. I will think of others to post.

Reader’s Question: The federal and many Civ Pro rules deem admissions admitted if not responded to within 30 days. Here is the scenario: the court rules the party was dilatory in responding and the admissions are deemed admitted. However, the party did respond to ROGS in time, as you expect some of the answers are clearly incompatible with deemed admitted admissions. Trial time — if your read into the record the answer to the admitted admission doesn’t the witness have the right to respond no that’s incorrect these admissions were deemed admitted by the court they do not reflect the facts accurately, or no that’s incorrect as I stated in my ROG answers the correct answer is . . . . or will the court not allow the witness to rebut the admitted admission even though a fact finder would see that the admitted admission is actually factually wrong (i.e. admission states that on the day the car you were driving was white however one that day you were driving your own car which was blue but the admission deemed admitted would “force” you to accede to it being white)?? Would the admitted admission be treated akin to a comment made during a depo and can be used during trial to question the veracity of the witness?

Fundamentally I’m wondering about the awkward reality of admissions deemed entered by failing to timely file a response and the fact that the deemed admissions are factually incorrect — would a court countenance allowing a case to be won or lost based on the dubious truth of admissions deemed admitted simply because the rules require the admission to be admitted.

Religion and Scripture is the subject of one of the most compelling chapters in Reptile, a book offering a guide for plaintiffs’ lawyers on trying personal injury cases. The lessons offered in the book have made a meteoric rise from novel theories to conventional wisdom by most experienced personal injury lawyers. You don’t have to blindly accept every premise in the book but if you are handling product liability, accident, malpractice, or any other tort cases—even if you are a defense lawyer—you need to buy this book.

The premise is simple: most of us believe in God and view the world from the lens of faith. This is true for people who wear their religion on their sleeves. (Not saying that is a bad thing but you know what I mean.) But the rules of Scripture, according to the Reptile authors, command authority as the “ultimate rules” for not only the faithful but the agnostic and even atheists. The Bible is filled with stories and parables that apply to every situation where justice is being sought. Here are a few of the plaintiffs’ theme direct quote suggestions:

• “Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd.” (Exodus 23:2)
• “Do not deny justice to your poor people in their lawsuits.” (Exodus 23:6)
• “Truthful lips endure forever but a lying tongue lasts only a moment.” (Proverbs 12:19)

The first question is whether this is admissible and whether you will offend the sensibilities of the court. I don’t think this is an impediment. The argument is argument and Scripture is history like any other history and can make an argument. I see no difference in quoting the Bible than I do in making an American Revolution or Civil War reference in closing.  Whether a judge listens to that logic or just knee jerks “You can’t bring religion into this!” is another matter.

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The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had settled after suing her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband separated, but before they divorced, and the lawyer spouse wanted all the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to fair distribution. Pain and suffering damages are not marital property.

Whenever I prepare for giving an opening statement, as I am today, my head is filled with more advice that I have heard or read over the years than expletives Bill Belichick threw out last night. I am writing today about two issues: what you should wear to trial and how you begin your opening.

The conventional advice from noted trial advocacy authors I have read and respect, such as Thomas Mauet and David Ball, is to leave the Rolex at home. This literal advice includes its corollaries of dressing conservatively in a blue or black suit that you did not buy in Italy, no necklaces or bracelets, etc.

This is the conventional wisdom, and I buy into a part of the premise. Jurors will prefer trial lawyers they can relate to, and many of us do not relate to the guy with the Craig Sager suit jacket. But I think what really creates a disconnect between a trial lawyer and a jury is when the lawyer is not perceived as authentic. Any time you are stepping out of your box, you will be less comfortable in your own skin. Juries are people: they sense this like a shark senses blood.

There is a split of opinion among personal injury lawyers whether plaintiffs should propound interrogatories before or after taking depositions, particularly in a case where there is a significant dispute as to liability.

When looking at this question, it is important to acknowledge that defense lawyers in personal injury cases are like actors: there are many Jack Nicholsons and Meryl Streeps and there are also a lot of folks who call themselves actors but their acting skills do not rise to even Skinamax quality.

So some lawyers are going to learn the case when they get the file and get their client-ready, regardless of the stage of the case. Others are going to not know the file at all and introduce themselves to the client and the case 10 minutes before the depositions. The theory behind waiting to serve interrogatories is that if you get the latter type of defense attorney, the defendant will take positions that don’t comport with the facts, logic or good strategy because they have not looked at the nuances of the case. Arguably, this logic would even hold up against a top-notch lawyer because every lawyer, even well-prepared lawyers, sees a case with a clearer lens on the courthouse steps than they do when preparing for a deposition.

Nice Stock Photo of  a Mediation

One of the most important things to do to prepare for mediation is to get the client ready for mediation. If you are prepping a client for mediation in a personal injury case, don’t forget to prepare the client for what may come in the defense lawyer’s opening statement.

Some lawyers try so hard to get the mediator on their side, they go overboard in their opening statement to the mediator, outlining the deficiencies in the opposing party’s case (sometimes even attacking the opposing party or his/her personal injury lawyer).  This is wildly counterproductive, but some lawyers cannot seem to help themselves.

I read a series of articles in Trial Magazine on cross-examining experts at trial. One article revolved around a joke the lawyer made and how everyone laughed, except for the expert. The moral of the article is that the expert’s failure to laugh at the joke “showed the witness’s pomposity” and was the “key to the jury acceptance of [plaintiff’s] experts and their credibility.”

I’m sure the joke played as the author suggests. But a jury trial is typically not conducive to humor. I’ve seen many efforts at humor—including my own efforts that I thought at the time were good—fail miserably. This is true in a shorter trial where the jury has not had an extended time to warm up to you and relax. Chris Rock would have a hard time being funny in an opening statement.

My advice: if you are not sure it will be funny, leave that club in your bag. Only a funny person can get away with prepared humor during a jury trial. Not sure if you are funny? You are not.

The 1st Circuit Court of Appeals wrote a helpful opinion in Morel v. DaimlerChrysler AG for product attorneys who get the name of the defendant wrong when filing just before the statute of limitations expires. The court elevated substance over form in finding the claim “relates back” under federal law.

The page was updated in 2023 to give people the Maryland law on the relation back doctrine they were looking for when they found this page.

What Is “Relates Back” All About?

The “relates back” doctrine refers to a legal principle that allows an amended complaint to relate back to the date of the original complaint for statute of limitations purposes. In other words, if an amended complaint is filed after the statute of limitations has expired, the amended complaint can still be considered timely filed if it relates back to the original complaint.

Under the Federal Rules of Civil Procedure and the Maryland Rules, an amended complaint can relate back to the date of the original complaint if the claims in the amended complaint arise out of the same conduct, transaction, or occurrence as the claims in the original complaint. In addition, the party being sued must have received notice of the claims in the original complaint within the time required by law.

For example, if a plaintiff files a complaint alleging that a defendant negligently caused a car accident but later discovers additional evidence that the defendant was tried to hit the defendant’s car because of road rage, the plaintiff may file an amended complaint adding a claim for punitive damages based on the intentional act. If the amended complaint relates back to the original complaint, the plaintiff may still be able to pursue the claim for punitive damages even if the statute of limitations for that claim has expired.

Facts of Morel v. DaimlerChrysler

This is every parents’ nightmare. A four-year-old boy got into his grandfathered unlocked 1987 Mercedes-Benz 300 SDL.  While playing in the car, the vehicle rolled backward, pinning his six-and-a-half-month old brother under the vehicle. The infant died later that day.

The plaintiffs’ product liability lawsuit alleged that the design of the Mercedes-Benz caused the child’s death, alleging a “gallimaufry” of product liability theories against Daimler-Chrysler Corporation.  The gist was that the Plaintiffs claimed they defectively designed that the Mercedes and that it lacked adequate warnings. They claimed that the car was defectively designed because it did not have a key shift interlock (KTSI), brake shift interlock (BTSI) or push-button gear shift lever, all of which, plaintiffs alleged, would have prevented the child’s death.

The family filed a wrongful death lawsuit in the United States District Court for the District of Puerto Rico, naming Daimler-Chrysler as the defendant. Daimler-Chrysler moved for summary judgment on the ground that it had never manufactured or sold Mercedes-Benz vehicles, and that the plaintiffs had sued the wrong party. The plaintiffs then amended their complaint to substitute Daimler AG as the defendant, but Daimler AG moved for partial summary judgment, asserting that the adult plaintiffs’ claims were time-barred. The district court applied Puerto Rico’s relation-back rule and determined that the amendment did not relate back, and granted Daimler AG’s motion. The plaintiffs appealed.

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