August 2012 Archives

Proving The Defendant Was Texting While Driving

August 24, 2012

Txting Drvng Reaper.jpgWith so many accidents caused by distracted driving, it's a fair bet that, in any given accident, the negligent driver was on a handheld phone or handling e-mail or text messages while driving. In many cases, that fact is not important: if the defendant admits liability, or if liability is clear (for example, the garden variety rear-end collision).

In other cases, though, proving that the defendant was distracted can go a long way toward showing that their version of events is likely wrong (if not an outright lie). Yesterday I deposed a representative of AT&T to find out everything I could about the phone usage of an automobile accident defendant at the time of the accident.

These types of depositions take a lot of legwork. When I get the transcript, I'll post it on the website. If you have a case where you suspect illegal cell phone use at the time of an accident, here are some things to think about:


  • Even before a lawsuit is filed, immediately send a preservation letter to save any cell phone owned by the defendant, and the content of any text messages on the phone at the time of the accident
  • Find out what cell phone carriers and cell phone numbers the defendant had at the time of the collision
  • Either get the defendant to sign an authorization, or send a subpoena requesting all cell phone records (including voice, data and text messaging records) for the time of the collision
  • Once you have those records, work with the cellphone carrier to set up a corporate designee deposition to decipher what the records mean--they typically come to you in spreadsheet form with various codes and abbreviations
  • During the deposition, identify the meaning of every column and term generically
  • During the deposition, figure out if you can verify whether there was any use of the phone during the collision

AT&T, for example, does not keep records of the content of text messages--they can only tell what time those messages were sent or received (they can't tell what time the messages were read). In a catastrophic injury case, a forensic computer specialist may be able to dissect the phone to determine that type of information. Your best bet is showing a string of text messages back and forth near the time of the accident. Even better is a phone call log. Data usage (Apps, Facebook, internet usage) from a smartphone can be more difficult--many programs run in the background, so the fact that a phone is uploading or downloading data does not mean that someone is actively using the phone.

Finally, be sure to find out in discovery whether the defendant gets e-mail on his phone. If so, request a copy of all e-mail messages sent and received near the time of the accident.

Texting and Driving Infographic

August 23, 2012

Courtesy OnlineSchools.com
Texting Inforgraphic.jpg

$250,000 Per Leg: Texting Motorcycle Accident Case Settles

August 21, 2012

distracted driving accident attorney.jpgThe New Jersey couple who were hit by a texting driver while riding their motorcycle settled their case against the driver for $500,000. Both Mr. and Mrs. Kubert, who were on the motorcycle, lost a leg because of the motorcycle accident.

We wrote about this story in May (Distracted Driving Lawsuits: Suing the Sender, and Lawsuits Against Text-Senders: Conclusion). There, the trial judge ruled that the plaintiffs did not have a case against the person who sent the text message, only the driver who read it. The lawyer in the case is appealing that decision, though I still wonder how he will get paid if he wins.

The $500,000 settlement only applies to the driver of the car. It looks like that is the policy limit, so the driver's insurance paid everything it had.

For more on distracted driving lawsuits, see our archives.

Backlash Against Progressive

August 20, 2012

Progressive HQ.jpgThe internet has been in a furor over Progressive's treatment of a Maryland family following the wrongful death of young woman in an auto accident. Is the furor justified? Check out our Generation J.D. blog post to find out: Evil Insurance Company? Following the Law? Both?

Should You Hire A Lawyer For Your Maryland Auto Accident Case?

August 6, 2012

Car Accident (2 people)(11-22-11).jpgThis post won't go into detail about whether you can or should handle a Maryland auto accident lawsuit by yourself--that's a post for a different day (for information about filing a lawsuit on your own, see the legal Self-Help section of our website).

Instead, this is to help answer whether you should settle your case on your own, or whether you should hire a lawyer to do it for you. The analysis will depend on where you are in the process:

I Was Recently In An Accident And I'm Not Finished With Medical Treatment

Early on after an automobile accident, there are a few good reasons to hire a lawyer:
  • You need medical treatment, but you either have no health insurance, insufficient PIP insurance, and you can't pay a doctor to treat you
  • You don't want to deal with the paperwork (filling out a PIP application, or ordering medical records, for example) or time (dealing with insurance adjusters)
  • You want someone else to take care of your car's property damage
  • You're concerned that the insurance company (either yours or the negligent driver's) might take advantage of you

Of course, the converse of each of these is also true. If you don't mind spending the time to deal with the accident, you have enough PIP insurance, and you can handle your property damage issues, then you can do it all yourself. You can choose to hold off hiring a lawyer, or you might choose to just resolve the whole thing on your own. People who have limited medical treatment, for example a visit to the emergency room and maybe a primary care doctor appointment, can easily handle this on their own. The more medical treatment an auto accident victim has, though, the more complicated the case becomes. In those situations, it might be good to have the advice of a lawyer. Clearly, if the victim requires surgery, or is in treatment for more than 6 months, a lawyer is a good idea. Anywhere in between is something of a gray area.

I Have Finished All Of My Medical Treatment And I'm Ready To Settle My Auto Accident Case

If the case is ready for settlement, a person injured in an auto accident may try to settle the case on his own. He can probably do so if:
  • He's willing to spend the time and money to order all medical records and bills
  • He's willing to spend the time dealing with the insurance adjuster
  • He's willing to spend the time collecting other important evidence: witness statements, police reports, etc...

Beyond this, it becomes a simple mathematical calculation. A person who has reached this point might choose to try to settle it and, if the insurance company's offer isn't good enough, he can then hire a lawyer. The calculation to determine whether a lawyer is a good idea is as follows:

Unrepresented Settlement Offer ≤ 66.66% Represented Settlement Offer

Most lawyers take auto accident cases on a contingency fee basis, which means that they get a percentage of the final settlement or verdict. Most lawyers' agreements provide that the client gets 2/3 (66.66%) of any pre-lawsuit settlement, and 60% of any post-lawsuit settlement or verdict (this number doesn't include expenses, which are usually modest in the smaller District Court-level automobile claims). The real question is whether the lawyer, either by adding his name or by expert negotiation/litigation skills, can increase your settlement or verdict by more than 2/3 (if pre-lawsuit) or 60% (if post-lawsuit). If so, you will do better by hiring a lawyer.

The reality is that insurance companies do tend to make higher offers to auto accident victims represented by lawyers. Sometimes it is enough of an increase to justify the attorneys' fees; sometimes it is not. I suspect that the main reason is inertia--insurance companies know that an unrepresented accident victim who is negotiating his own case is already less likely to hire a lawyer under any circumstances--they will sometimes accept settlements because they don't know what their case is worth; or they will sometimes accept settlements because it is easier to be done than to go that extra step to hire a lawyer. Once a lawyer is involved, however, the proper response to a low offer is to file a lawsuit, which puts the insurance company's feet to the fire (some lawyers are settlement lawyers, and some lawyers are trial lawyers--you must make sure that you hire someone with a track record of going to trial).

The only difficulty for most people is that it can be hard to know what their case is really worth, and what offer a lawyer would get. Check out the Maryland Auto Accident Settlement Calculator for more information. As a very rough rule of thumb, if the insurance company is not offering you a settlement that equals at least double your medical expenses, plus your lost wages, then they are not even trying to give you full value. In some cases, that number should be much higher than even that.

The Value A Lawyer Brings To Your Case

So what can a lawyer do for your accident claim? Here's how they can help make your life easier:
  • Deal with your insurance company to ensure that PIP makes the proper payments
  • Deal with the negligent driver's insurance company to get your car's damage taken care of
  • Deal with the negligent driver's insurance company to settle your case
  • Help to recommend a doctor if necessary (I prefer that clients go to their own doctors; in some situations, however, this is not realistic)
  • Collect all evidence, including witness testimony, medical records and bills, and police reports
  • Educate you as to the settlement value and trial value of your case
  • Negotiate down the amount owed by you to your doctors or health insurance
  • File a lawsuit, if necessary

Contact An Experienced Maryland Auto Accident Attorney

You may be able to handle your own auto accident case, and that's great. If you have general questions, feel free to give us a call. If you don't want to take care of it by yourself, let us know at 443.850.4426, or send us a confidential online message.

Auto Accident Cases While On Vacation

August 4, 2012

Ocean City Postcard.jpgWe've had a spate of referrals from out-of-state lawyers lately that involve Maryland auto accidents, usually Maryland defendants, but out-of-town plaintiffs. The scenario is that an out-of-towner is traveling in Maryland, perhaps even on vacation, and is hit by a negligent driver here in Maryland. Some of these are Ocean City auto accidents, others are for less traveled destinations in our state. Those people may treat here in Maryland while they are here, usually an emergency room visit or two, and then they finish out their medical treatment in whatever state they come from. They contact a lawyer in their home state, and that referring attorney may attempt to settle the case on his own; if that doesn't work, he needs a Maryland lawyer to file and litigate the lawsuit here in a Maryland court.

There are a couple of other of permutations--Maryland drivers visiting a vacation spot in Maryland, and hit by a negligent out-of-town driver. Out-of-town driver visiting Maryland hit by another out-of-town driver in Maryland. In each case, the lawyer should consider the best place for the lawsuit if it doesn't settle.

In Maryland, the rules about where lawsuits can be filed are usually clear. Maryland Rule § 6-201 provides that lawsuits can typically be brought in a county where the defendant lives (if a person), or where a defendant has its principal place of business (if a corporation). Rule § 6-202 provides that a lawsuit can also be filed in the county where the accident occurred.

Particularly where accidents happen for a person on vacation, there may be multiple options on where to file a lawsuit. The police report will typically show the address where the defendant lives; if that is different from where the accident happened, the lawyer should compare the potential judges/juries, and make a decision about where the case will likely have the most success. Another consideration is the convenience of the plaintiff--if the victim is from another state, he or she may have to travel back to Maryland for a trial if an auto accident settlement is not possible. However, it may be more convenient for a local accident victim to choose one permissible venue over another. The lawyer's client should be included in the decision making process.