Maryland Courts

April 25, 2012

Maryland’s Best and Worst Places to File a Personal Injury Lawsuit

Ask the average person or even the average lawyer what they think of forum shopping. It is viewed as a crime against the people. So let’s talk about “forum selection” instead.

Forum selection is important, showed by the frequency with which parties contractually provide for and battle over venue. There are a host of reasons forum matters so much. There are choice of law, capacity to sue, the statute of limitations, caps on damages, and a host of other potential considerations. But for personal injury lawyers, we are forum shopping for one purpose: trying to find a jury panel that would be most receptive to our client’s claim.

In spite of all the hand-wringing about the crime against the people for plaintiffs’ lawyers to have – gasp! – options of where to sue, Maryland law defers in some measure to the plaintiff’s selection as the choice of venue if the venue is proper in the forum the plaintiff selects. The Maryland Court of Appeals has

Venue can mean everything in a personal injury lawsuit.

repeatedly held that it is “the moving party who must prove that the interests of justice would be best served by transferring the action…and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” But, let’s face it, the trial court has a lot of discretion on venue. A trial judge can ignore this rule with impunity and balance the interests as the judge sees fit. We joke that the “weighs strongly” rule is only the law if the motions judge agrees it should be the law. (This was never fully explained to me in law school, let me tell ya.)

If you are a plaintiffs’ lawyer, you are practicing two types of forum shopping selection: vertical and horizontal. Vertical forum shopping is moving a case to or from federal court. This is rarely an option in car accident and malpractice cases, but is a common question in product liability cases. The one thing that lawyers just don’t seem to understand is the nuances of the diversity of citizenship rule for filing in federal court. Many lawyers wrongfully believe there is diversity jurisdiction if you are suing an out-of-state defendant, even if you are a resident of that state. If you have a client who is domiciled in Maryland, and file against an out-of-state defendant in federal court, that defendant can get the case transferred to the Maryland county with appropriate venue. It is amazing to me how many lawyers don’t understand this. Continue reading

April 5, 2012

New Legal Malpractice Coverage Case

by Ronald V. Miller, Jr.

U.S. District Court Judge James K. Bredar ruled this week that a legal malpractice insurer – our carrier Minnesota Lawyers Mutual, who I would recommend – does not have to provide coverage for a legal malpractice claim because its insured attorneys did not provide adequate notice of a potential claim. As a result, they failed to meet a condition precedent for insurance coverage.

If you are a Maryland lawyer, you ought to read and understand this case. Alternatively, read this blog post. Or, just understand this: if you think there could be a legal malpractice claim against you, report it quickly. Do that and you will be okay. Otherwise, you are playing with fire.

The facts are convoluted in this commercial litigation case. Basically, D.C. lawyer is pro hac vice admitted into Maryland, but did not appear to really know what she was doing in handling the case, including failing to understand some fundamental tenants in who to respond to a motion for summary judgment. Whether this was just negligence in the air or whether the mistakes caused harm to the client was less clear. Minnesota Mutual hung around and defended the legal malpractice claim for a bit, but then stepped out and denied coverage. Continue reading

April 2, 2012

Maryland Local Government Tort Claims Act: Another Injustice Passes Without Notice

by Ronald V. Miller, Jr.

Local Government Tort Claims and the Maryland Tort Claims Act

Our law firm does not handle police brutality cases. We have some experience handling the claims – not me but other lawyers here – and the injuries can be horrific. But the criminally insane Maryland Local Government Tort Claims Act destroys the value of these cases. I offer as exhibit #549 the Maryland Court of Special Appeals opinion in Leake v. Johnson.

Just tailor-made awful facts. Police arrested a man for public urination. A crime, I guess, but should you really be arrested for it? Well, this guy was, and he was handcuffed and put in a police van. The police did not put a seat belt on him and then gave him a wild ride in the paddy wagon.

When they realized they had nearly killed the guy, they drove him to the hospital and still didn’t fasten the guy in place. The man’s spine became dislocated and fractured, causing him to become a quadriplegic. The paralysis occurred, according to the plaintiffs’ expert, because of pulling him out of the van after his initial injuries.

He eventually died. Can you imagine? Public urination? I Googled around a little, looking for some back story. What really happened? What happened to the police officers? I can’t find a single piece of excellent information. Crazy. A zillion people are protesting Trayvon Martin. Couldn’t we borrow just a few of those people to look at the injustice that occurred here? ( 2021 Update: I might be Nostradamus). Continue reading

April 2, 2012

Defendant Was a Drunk Driver: Should That Be Admissible

by Ronald V. Miller, Jr.

Last week, in Hendrix v. Burns, the Maryland Court of Special Appeals dealt with the question of what plaintiffs’ lawyers can admit into evidence in a car accident case when the defendant stipulates to liability.

In car accident cases, many defense lawyers loathe admitting responsibility. There is always a chance that the jury will hate the plaintiff and accept some insane version of how an accident happened.

But, the best thing that can happen for the plaintiff is for the defense lawyer to deny responsibility in a case because it diminishes the defense lawyer’s credibility on the plaintiff’s injuries. If you are plaintiffs’ counsel, you want to get the jury mad at the defendant. Jurors give more money when they are mad. This is hard in traffic collision cases because it is hard for jurors to get mad at a negligent driver who makes what they can perceive to be an accident that they could easily make themselves.

Smart attorneys for plaintiff frame the case, not as an accident, but a choice the defendant made. “The defendant in this case chose not to pay attention.” But still, we all know that we have failed to pay attention while driving and it could have, under the wrong circumstances, lead to a car accident.

In Hendrix, the call to stipulate to liability was a no-brainer for State Farm who defended the case. The defendant was drunk. He tried to flee the scene of the accident, but his damaged car wouldn’t let him. He was in the middle of some road rage dispute. A picture-perfect bad guy defendant for the jury to hate.

State Farm did what they should do, file a motion in limine to exclude the introduction of evidence that the defendant was drunk, that he had been involved in a “road rage” incident with another driver and was crazily chasing that driver when he ran the red light, that defendant attempted to flee after the accident, and also that his criminal record included DUI convictions.

Plaintiff’s lawyer did what smart ones do in a case like this. He brought a battery case for the road rage, arguing that has been put to bed since law school doctrines like transferred intent. He brought a negligent entrustment count. He also smartly argued that a part of Plaintiff’s pain and suffering was seeing the defendant drunk and trying to flee the scene of the accident. This is doing everything you could do to put your client in a position to maximize her damages.

Does this have anything to do with the level of damages in a personal injury case? It depends on your world view. If you think damages should be calculated in a hermetically sealed box, it shouldn’t be admissible. From this perspective, it shouldn’t matter whether the defendant was a crackhead on his 6th DWI or a nun with a 40 years history impeccable driving.

Yet, somehow, that she was a nun would come out on direct. Why? Because the insurance defense lawyer is trying to minimize damages by suggesting that this nun is a sweetie and she will have to pay this verdict out of her pocket.

Why do we let the nun say she is a nun? Context matters. But once you agree that the fact that she is a nun should be admitted, doesn’t the dam break open when the defendant is drunk. Isn’t that context – like the nun – that the jury should consider? Continue reading

March 23, 2012

University of Baltimore Law School Dean Candidates

by Ronald V. Miller, Jr.

There are five finalists for the dean of University of Baltimore School of Law that will visit campus beginning March 26. I will review these candidates for you and make my selection. To be fair, I have never met or even heard of any of these people. I’ve limited my education to a three minute Google search of the candidates.

Nicholas Allard: A lawyer at political heavyweight, Patton Boggs, Allard is a former chief of staff to U.S. Sen. Daniel Patrick Moynihan and former legal counsel to U.S. Sen. Edward M. Kennedy. While I’m not pretending I’ve ever heard of him, this is the celebrity pick. Moynihan was one of the few politicians in the last 50 years who the left and the right deeply respected, and Kennedy was Kennedy. That’s the big time. He is knee-deep in pedigree, attending Princeton, Oxford, and Yale which, in a bizarre coincidence, are the same schools my children will attend in 13 years (although they are not going to law school). Here’s my concern: is there a risk that hiring Allard is like hiring Michael Jordan to play baseball? Dean Closius came here with a history of turning around a law school. Allard would come with a history of being great at lots of things other than running a law school.

March 12, 2012

Underinsured Motorist Coverage Maze: A New Bill to Clean Up (a Little)

by Ronald V. Miller, Jr.

There is a bill pending in the Maryland Senate to overturn the Maryland Court of Appeals opinion in Maurer v. Pennsylvania National Mutual Casualty Insurance six years ago. This bill allows car insurance companies who have underinsured exposure because the at-fault driver has insufficient insurance coverage, to consent to settlements against the at-fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

March 5, 2012

New Maryland Expert Opinion Ruling

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals issued an opinion last week in a case that should be read by every Maryland personal injury lawyer who is putting up or cross-examining expert witnesses at trial.

What Happened in Yiallouro v. Tolson?

In Yiallouro v. Tolson, the plaintiff was injured in a car accident while in the scope of his employment. The case went to a Montgomery County jury who awarded the victim and his wife $925,000.

After the verdict, the trial judge made two conclusions that blew up the jury’s verdict. First, the judge concluded that he had made a mistake in letting the plaintiffs’ vocational rehabilitation expert testify about the plaintiff’s lost wages at trial – over $400,000 – because her opinions were speculative and without sufficient foundation. The trial judge also concluded that the pain and suffering damages were excessive and perhaps influenced by the testimony of the vocational rehabilitation expert.

This ruling put plaintiffs’ lawyer into a box: trial judges have a lot of discretion to vacate verdicts that the court deems excessive. So he did the only thing he could do: try the case again. He even got the vocational rehabilitation expert back, getting her past a Frye/Reed hearing. (2020 Update: Daubert is now the rule in Maryland.)

Learning from the Last Trial

The defense lawyers – channeling their inner Bill Belichick – did something really smart: they learned from the first trial. Most trial lawyers will tell you that accident reconstruction experts usually are a waste of time. The jury draws its own conclusions and ignores the expert, according to conventional wisdom.

The defense lawyers, in this case, ignored this conventional wisdom and brought an accident reconstruction expert to testify about his measurement of ground distances and his estimations of speed, stopping time, and stopping distance—including his assumptions of average reaction times. Defense verdict. Contributory negligence. Game over. Riches to rags. Thankfully for the plaintiffs, the Maryland Court of Special Appeals, in an opinion by Judge Albert J. Matricciani, reversed the trial court, finding that the expert had been appropriately qualified.

Future lost wage damage claims present challenges because there is no way to determine the future and, on some theoretical level, an expert who offers future lost wages is guessing. Still, Maryland law allows for damages for future lost wages, if for no other reason than the incredible injustice that would ensue if the law just dismissed future lost wage claims as speculative on their face.

How to Make a Lost Wages Argument?

So plaintiffs’ lawyer used the three-step game plan good accident attorneys use when claiming future lost wages. Get an expert opinion from an orthopedic doctor, have the voc rehab expert translate the plaintiff’s limitations into lost income, and then have the economist give the jury the real value of the lost stream of income.

February 13, 2012

Howard County Race for Judge and Random Howard County Musings

by Ronald V. Miller, Jr.

This blog is directed primarily to other personal injury lawyers around the country. I try not to focus too much on issues specific to Maryland because there are not enough lawyers in Maryland to maintain a readership. Even when I’m analyzing Maryland personal injury cases, I try to make the information of use to lawyers everywhere. But my post last week on Clark Ahlers own bid to oust the sitting judges in Howard County has generated a lot of traffic, emails, and some interesting comments. Continue reading

February 9, 2012

Clark Ahlers: Howard Court Judge Election Battle

by Ronald V. Miller, Jr.

The Baltimore Sun has an article this week about Columbia criminal attorney Clarke F. Ahlers attempt to unseat Judge Lenore R. Gelfman and Judge William V. Tucker on the Howard County bench in November.

I don’t know Ahlers. I know he was a former Howard County police officer who taught at the University of Baltimore School of Law for a time. I’m not floating around in Maryland criminal law circles, but the impression I have is that he is well-liked and well respected. So Ahlers is right, he probably would make a good judge. That is not a canned, obligatory throw-away line: I really think he would be a good judge.

No Real Issues

But what exactly are the issues in the campaign? Well, I went to Ahlers’ website. He has a category devoted to the issues. Oh good, I thought, let’s see what they are.

There are no issues. There is a lot of talk about the Constitution but, really, are there judges out there running on an anti-Constitution platform? He also wants a new courthouse, and he was in private practice. We devote most of this page to the serious criminal/police cases he has handled. A great resume, but not exactly an explanation of the issues.

There is, however, a quote from Thomas Jefferson about the blessing of judicial elections and a bit of a lecture for those of us who oppose judicial elections in Maryland:

Those who favor a purely appointed system of judges believe citizens are too dull to manage their own lives without government’s direction, and are unqualified to select those who would sit in judgement of them.

I think this populist argument is the best arrow in the quiver of judicial elections. But it is weak. I don’t think opposing local judicial elections is a blessing for the notion that citizens are too dull to manage their own lives with government direction. In fact, the connection of the two is – respectfully (hey, particularly respectfully if Ahlers wins!) – intellectually lazy. I can favor having police officers without being in favor of a Gestapo. I can favor taxes without being in favor of socialism. I can favor Joe Flacco without calling him a top ten NFL quarterback.

No one agrees that we should select every governmental position? Should we vote on who should be the Howard County Chief of Police? How about the Superintendent of Schools? Are we so lazy that we don’t care who can arrest us and who teaches our children?

December 23, 2011

New Maryland Circuit Court Judges

by Ronald V. Miller, Jr.

In all the hubbub about Robert McDonald’s selection to the Maryland Court of Appeals, I neglected to mention the new Circuit Court judges:

Baltimore County District Judge Nancy Purpura (Baltimore County)
William Rogers Nicklas Jr., a personal injury lawyer (Frederick County)