The Maryland Court of Appeals ruled today that Maryland will not make the leap to comparative negligence, choosing instead to defer to the legislature. The court has the power to change the law; it wants you to know. But it chooses not to do so.
Contributory negligence still inexplicably remains the law of the land in Maryland.
I think contributory negligence is inane, which is why so few states have kept it. Should the court defer to the legislature to make the call? I really don’t know.
Judge Mary Ellen Barbera will be the first female chief judge of the Maryland Court of Appeals, our highest court, according to current Chief Judge Robert Bell who told the AP of the selection.
It is a strange way to make the announcement of this magnitude. Was Chief Judge Bell talking out of school? Maybe he was given the courtesy of knowing in advance and he spilled the beans, maybe inadvertently. I suppose they could have told Bell to leak the announcement, but I doubt it. Governor O’Malley refused to talk about Bell’s announcement when asked by reporters after an event he attended recognizing pro bono attorneys. A news conference is scheduled for Wednesday.
Chief Judge Bell, who is a true legend and hero to many, has taken a lot of shots on his way out the door of late. He will reach the mandatory retirement age of 70 on Saturday.
It’s been a bit since I’ve written about how awful insurance companies’ first settlement offers are in serious injury cases. But I’m sure I’ve given a client the speech in the last 24 hours. I do it all the time.
The primary reason the first offer is usually far from the true settlement value is that the insurance company is giving a gut check to the plaintiff. They are implicitly asking them whether they will throw some punches to get the money they are entitled to get. Plaintiffs’ lawyers complain about this as if it is some holy war between good and evil as if insurance companies have some moral obligation to offer the trial value to settle. I hate insurance companies and all. But I have to admit that if I were them, I would do the same thing. Their job is to make a profit for their shareholders, not offer third-party plaintiffs what the insurance company really thinks the claims are worth. The game is the game.
But there is another reason the first settlement offer is wildly out of line with the true value of the case: most insurance adjusters are lazy (as are most plaintiffs’ lawyers). To get to the actual value of a case, peel that onion again and again. So they take just a cursory look at the case, knowing that even if the settlement offer is rejected, they have multiple more bites of the apple down the road. So think about it, what would you do if you were an adjuster in that 
environment? Dig deep and risk that someone auditing your cases will say you overpaid for it? Or just put it off a little while? With GEICO and a lot of other insurance companies, you are not even kicking that can to yourself, another adjuster will get the file after suit has been filed.
Among the major insurance companies, State Farm and Allstate are the two that will often stick their feet into concrete on what they think the case’s value is. They stick to their early values more than the others, probably because they rely on computer-generated data to value claims more than many others. Why is this? Ever read or hear about the Checklist Manifesto? That book is that ER doctors looking at cardiac patients are better off using a checklist to evaluate the risk of a heart attack or stroke, then they are using their own independent judgment. Sounds crazy. But some data seems to bear out that you would be better off with a nurse with a checklist than an experienced board-certified cardiologist in a lot of cases.
I like to brag on this blog and our website about the times Allstate and State Farm – particularly State Farm because it happens a lot – get it wrong, and we hit in excess of their insured’s policy limits. There is an implicit, “they are so dumb, we are so smart” aroma to the whole thing, I’ll admit. “We got 35 times the settlement offer,” I like to brag. And I will not stop, either. But that does not mean in the big global picture it is not a smart strategy. Continue reading
On Friday, June 21st, Maryland’s ban on the sale of “hazardous” baby bumper pads will go into effect.
The Maryland Department of Health and Mental Hygiene has said that they intend the ban to help educate parents about safe sleep practices for babies. The ban applies to crib bumpers that are made of non-mesh type material, and are intended to rest directly above the mattress, along the length of the interior sides of the crib.
Violations for selling crib bumper pads to Maryland consumers involve warnings or a fine of up to $500 per item shipped or sold. I don’t think anyone was selling them here, anyway. I think just gets the word out of the risks of these pads and that is a good thing.
When trying to figure out the settlement value of a personal injury case, trial attorneys pull from usually only one resource: their own experience. We pull from our own cases and from cases we have heard about from other lawyers. But how good are we at valuing cases?
First, it is important to underscore how unbelievably important this skill set is for trial lawyers. Mostly when a case goes to trial, it is because someone miscalculated the value of the case. The insurance companies rely heavily on data in valuing cases (which sometimes reliably cements their reputation as unfeeling robots). While they deny it, they continue to believe that they can predict how much money a jury is likely to award based on the relationship between the amount of special damages (medical bills and lost wages) and the award for noneconomic damages. Sometimes this logic holds. The key skill for personal injury lawyers if being able to identify which cases defy the data because of intangibles that data cannot measure.
Most notably, insurance companies invariably devalue the character, or lack thereof, of the plaintiff, which is just an unbelievably critical value marker. So the insurance company’s predictions misfire both ways. Knowing when the insurance company has miscalculated the value of a case gives you a tremendous advantage over the insurance company because you know which offers or demands should be accepted – some will be steals – and which cases should be tried.
An article titled “Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion” written in the Journal of Empirical Legal Studies provides the answer how personal injury attorneys do as a class in estimating verdicts: not good.
The average accuracy error for lawyers in predicting the value was 0.387. For a verdict of $100,000, this is equivalent to an estimate of $244,000 or $41,000. That’s a big range. With those estimation skills, it is a wonder more cases don’t go to trial.
The study found that when you averaged the estimates of more lawyers – testing the idea of bouncing case value off other attorneys – the average estimation error dropped to 0.228, which on a $100,000 case is equivalent to an estimate of about $169,000 or $59,000. When expanded to 28 lawyers, the average estimation error was 0.130, equivalent to an estimate of $135,000 or $74,000. Continue reading
Technology is slowly eroding our privacy. Personally, and I’m in the minority, I’m think it is a fair trade-off. I’m okay if Apple and Google know where I am every second of the day. I’m not doing anything all that interesting.
But most people are increasing worried about technology and Big Brother. The Maryland Court of Appeals is trying to stem that time. Effective, next month, a new rule will go into effect that instructs attorneys and others who file documents with a court to keep unnecessary personal information out of the court records when possible.
While I’m not a big privacy guy, I think appellate opinions (and blogs) should leave out the names of parties to a lawsuit. I don’t use names because I don’t want someone Googling their dead father and find my blog discussing impersonal details about their death and how they lost their case trying to seek justice for his death.
I’ve written a great deal about venue issues on this blog. I’ve cheered and cried over some more recent opinions. Today is a cheer day based on three weeks old a new Maryland Court of Special Appeals’ opinion.
Let’s be honest: plaintiffs’ lawyers would usually rather be in Baltimore City
I talk too much about venue because I’m honest: it matters. A lot. Venue is predominantly one of the deciding factors in tort cases, both on liability and the amount of damages. Plaintiffs and defense lawyers burn many a forest attempting to persuade courts to allow them into a jurisdiction that more strongly favors their case.
In Maryland, and I’ve said it a thousand times, great deference should be given to plaintiffs on their choice of venue. Only when a showing of evidence that strongly weighs the balance for an opposing party should the courts grant a motion to transfer venue. Why? The powers that be have decided that it is important to defer when possible to the victim’s choice of forums. I completely agree.
In Scott v. Hawit, a child suffered irreparable brain damage allegedly because of a misdiagnosis caused by both John Hopkins Hospital and a doctor. Baltimore City was the location of the plaintiff’s injury and is Hopkins primary place of business. Still, Hopkins made a motion to transfer venue to Calvert County, arguing that Calvert was a better fit because it was where both the doctor and the plaintiff were located, and that most of the allegedly negligent treatment was done there. Continue reading
Lawyers always argue over anything where there is not black and white set rules. (Actually, we argue when there are set rules, too.)
No one exactly knows the rules of the sequences of discovery because the rules are whatever the motions’ judge says there are. So lawyers take positions on these issues with varying degrees of reasonableness.
A new Wisconsin case illustrates this issue. In Dauska v. Green Bay Packaging Inc., the defendant filed a motion for sanctions and to compel the deposition of the Plaintiff who refused to be deposed. Why? Plaintiff’s attorney refused to allow his client’s deposition until he received discovery responses from the Defendant. Plaintiff’s lawyer did not file a motion for a protective order but made it clear his client would not appear for deposition. Continue reading
Today, the National Transportation Safety Board (NTSB) said we should lower the blood-alcohol limit from .08, the current standard, to .05. The NTSB argues that the U.S. is too lenient with drunk driving and wants the U.S. to adopt the same standard as other countries, such as those in Europe.
Even “just a little” drinking and driving leads to deaths in Maryland
Data from the National Highway Traffic Safety Administration tells us what we have known for a zillion years: alcohol plays a role in nearly one-third of traffic deaths in America.
But the NTSB tells us something new, providing data that the risk of a crash is reduced by half when the definition of “drunk driving” encompasses the .05 standard instead of the .08 standard. Depending on body size, the difference between .08 and .05 is one to two drinks over a three-hour time span.
It is hard not to cut to the chase on this. There are 12,000 deaths, give or take, a year in this country from drunk driving. Now imagine in your mind 6,000 people in a room that could have been saved by everyone having fewer drinks. Then imagine everyone who loved those 6,000 people in a room. I have to think the NTSB is on the right side of history on this.
(I just pulled a minor trick there. The NTSB says “car crashes” and I turned that into “car crash fatalities.” But if you reduce that 6,000 to 3,000, does it detract from the point I’m making?)
We had been reducing drunk driving deaths for a while, but we have hit a stopping point. We either need to increase penalties or reduce the BAC. Those, it seems to me, are the two weapons we have in our arsenal to get past the bottleneck.
This idea that a few drinks do not affect driving is crazy. Play a video game and try to get your high score on two beers. You just can’t do it. Alcohol is dose-responsive. Every little bit makes you a little less competent to drive.
Last week, the Court of Special Appeals of Maryland decided the case of Davis v. Martinez. This was an appeal where the trial court entered an order that permitted the underinsured motorist insurer (State Farm) to participate in the trial anonymously. State Farm was never identified to the jury, the jury was not told about the plaintiffs’ claims against State Farm; the jury was never told who State Farm’s lawyer represented, and the jury was never told that State Farm’s expert medical witness was testifying on behalf of State Farm.
I know what you’re thinking if you are a Maryland accident attorney – “But wait, doesn’t King v. State Farm say that the UIM carrier must be identified to the jury in cases where the insurer is a party?” Well, yes. That is exactly the holding in King. You’d think that would be the end, right? Of course not.
We have still been getting motions to conceal the identity of the UIM carrier, but where (unlike in King) the insurance company is not the only defendant. Instead of the insurance company bringing the motion, the motion is made by the negligent driver, who argues that they will be prejudiced because they may be more susceptible to a large verdict by being associated with an insurance company whom the jury may view as a “deep pocket.” They argue that King can be distinguished because there the insurer was the only defendant, so there was nobody else to be prejudiced. They claim that it is different when there is another party who could be harmed by identifying the insurance carrier.
Now, this is a stupid distinction, because the rationale in King was that it was an error to conceal the identity of a party to a lawsuit because doing so harmed the integrity of the jury system by permitting “charades at trial,” and causing juries to speculate about the identity of the parties and who the lawyers in the case represented. One defense attorney who has brought these motions has said that they are granted about half the time. Continue reading
