Maryland Injury Law Center

June 23, 2010

Cross Examining Insurance Company’s Medical Expert

Our firm has spent a lot of time, effort and energy trying to get an honest answer that defense experts sedulously avoid: how much do you make testifying in accident cases and how much have you made from this law firm/insurance company?

I think we have fought this issue as hard as anyone in Maryland, recently getting a helpful Maryland Court of Appeals opinion that makes more clear what Maryland law is on the expert’s obligation to produce financial records.

I know a lot of insurance defense attorneys in Maryland think we do this to harass their experts. I get why they think this. There is too much gamesmanship in Maryland accident cases between plaintiffs’ accident lawyers and the insurance companies. Both sides are guilty of this. But with this expert issue, jurors care more about bias than they do the doctor’s pedigree. We care about this issue so much because we think it makes a difference to jurors.

June 1, 2010

Two Frivolous Lawsuits

by Ronald V. Miller, Jr.

A lot of meritorious lawsuits were filed last week. Yet this morning my Google Reader quickly pointed me to two that seem to embody the definition of a frivolous lawsuit:

Walter Olson on Overlawyered reports on a lawsuit in Canada where the Plaintiff is suing after she jumped out of a car while intoxicated. As I wrote a comment on the Overlawyered post, I cannot imagine a scenario where this is a legitimate claim. I’m all in favor of lawsuits when the victims are innocent.
What I do when I see lawsuits like this.

May 21, 2010

Requests for Admission Thoughts

by Ronald V. Miller, Jr.

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.

May 11, 2010

Maryland’s Wrongful Death Statute

by Ronald V. Miller, Jr.

Rarely, but at least a few times a year, our law firm gets a wrongful death case in Maryland where, regardless of the facts, there is no claim. Here, the victim who may be loved by family and friends has no wrongful death claim because the victim has no spouse, children, or living parents.

Noneconomic and economic measures in Maryland do not provide money damages for loss of life of the victim on their own behalf. The lack of joy that comes with being alive and missing out on life goes uncompensated. So if you have no spouse, dependents, or children and are negligently killed by another person and you die instantly, there is no recourse in Maryland law for a wrongful death claim or any other meaningful claim outside of your funeral expenses.

A doctor can see that a patient has no primary or secondary wrongful death beneficiaries and knows that there is no possibility of a wrongful death medical malpractice claim.

Do I think this happens where doctors take a risk with a patient because the patient’s death by definition could not bring about a wrongful death claim? No, I really don’t. But that you could recklessly kill someone with no consequences of any kind is a bad thing.

The answer? Change the law to have an entirely new damage claim in Maryland for loss of the enjoyment of life for the victim? Whatever you may think of the idea, there is absolutely no inertia to change the current state of the law.

So what could we do that is more practical to solve the problem? I think the answer is simple. Allow siblings, grandchildren, and other defined relatives into a third contingency tier of wrongful death beneficiaries. It would open up only a few recent claims, but we could all know that there will be accountability when someone is killed by someone else negligence. I think this would be justice. Continue reading

May 3, 2010

Nice Email to Us of the Week

by Ronald V. Miller, Jr.

I’ll admit to being a sucker for kind words:

I am in CA and I wanted to thank you for your site. I am an innocent victim up against a very ruthless old attorney who has already forced me to bankruptcy and is trying to take my home for his retirement. He is partnered with an incredibly dishonest client and overwhelmed my attorney for 5 years with process, motions, etc… I am now pro se and working diligently to keep up with him, and your site gave me some great ideas. I applaud you for putting your work on your site, and I sure wish you guys were in California. I am impressed with the quality and ideals which your firm obviously believes in. I wish I could have been your client.

I often hear from lawyers who I consider experienced who tell me they repeatedly use our website as a tool in their law practices. Some insurance companies have even given us naming rights, calling certain motions “Miller & Zois” motions because they are widely taken from our site and filed in other cases.

April 26, 2010

Should You Ask for an Amount in Opening?

by Ronald V. Miller, Jr.

Paul Luvera discusses a tough issue for Plaintiff’s lawyers: do you clue the jury in during your opening statement how much you will ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I will ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I’m getting them used to the idea without having to spit out a number with no evidence.

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is a cap case and minimal or no economic damages, you can dial back on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money – which is what a plaintiffs’ lawyer does by definition – you do lose some measure of credibility with a jury.

One issue in this post – raising the damage amount in voir dire – is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

April 21, 2010

The Bible at Trial in Personal Injury Cases

by Ronald V. Miller, Jr.

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.

April 13, 2010

Another New Maryland Law? Jury Demand to 15K Goes on the Ballot in November

by Ronald V. Miller, Jr.

In its final day in session, the Maryland General Assembly passed a bill that will place a constitutional amendment on the ballot in November to raise the jury prayer amount in civil cases in Maryland. Any case pled in District Court in Maryland for more than $10,000 can be “bumped up” to a jury trial. This bill would increase that amount to $15,000.

Insurance companies commonly bump up small district court cases filed for more than $10,000. This practice leads to massive numbers of car accident cases before Maryland juries making it hard to argue that we are properly using precious juror time.

Car insurance companies have historically opposed this bill. But this was not your classic “business v. trial lawyers” battle: a lot of support for the bill came from small businesses who dislike having to spend their resources on lawyers battling in Circuit Court that which could be fought much cheaper (for all parties to the litigation) in District Court.

April 13, 2010

My Mediation Article with Judge Gordy

by Ronald V. Miller, Jr.

Yesterday, the Maryland Daily Record published the first of a three-part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Look at yesterday’s article, and look in coming editions for the final two parts.

April 7, 2010

New Maryland Law: Maryland Car Insurance Limits to Increase

by Ronald V. Miller, Jr.

The Maryland Senate passed HB 825 which increases the minimum minimum limits of car insurance liability coverage in Maryland from $20,000.00/$40,000.00 to $30,000.00/$60,000.00. The Maryland House of Delegates has already approved the bill, and we expect the Governor to sign the bill soon. The bill will go into effect next year.

Again, this bill is long overdue and will not provide an actual solution to serious injury and wrongful death cases where there is inadequate insurance. It is a moderate but meaningful step in the right direction.

Commentary on Jay Handcock’s Blog Post on Bill