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Don't Talk to the Insurance Company

April 9, 2014

Record Button.jpgAttorneys are an argumentative bunch. We disagree on many things, so when we agree on something, you should take notice. Something we agree on--don't give a recorded statement to the insurance company after an automobile collision. It doesn't matter if it is your insurance company, or the negligent driver's insurance company.

Let's talk about why the insurance companies want to get you on an audio recording. First, the mundane--they want to know the facts of the accident, the nature of your injuries, and what medical care you have received. They want to know what evidence you have, and whether there is anything that will help them to muster up more evidence.

Now, the insidious--the insurance companies want a recorded statement from you so that they can use it against you. They will take a recorded statement shortly after the accident. Down the road, when you file a lawsuit, you will answer written questions (called interrogatories) under oath. Then you may have a deposition, where they ask you more questions under the penalty of perjury. Finally, you will testify at trial, perhaps two or three or four years after the accident.

The insurance company, therefore, will have at least four opportunities to question you. Even though you are truthful at each of those moments, your memory will fade, and some insignificant details might change. The defense lawyer, in front of judge and jury, will point to those inconsistencies, and brand you a liar. Juries don't award money to liars.

But My Insurance Company Wants a Statement, and My Insurance Company Is My Friend!
Unfortunately, this isn't always the case. There are at least two scenarios where your insurance company might be working against you. The first is if you have PIP insurance (personal injury protection). Your insurance company may be on the hook to pay for some of your medical expenses, lost wages and household expenses. PIP policies typically range from $2,500 to $10,000. We've seen PIP insurers fight really hard against their insureds, particularly where there is more at stake than $2,500. They may look for any good reason to deny you access to money that you've earned by paying premiums, year after dutiful year.

The second scenario involves an uninsured or underinsured motorist claim (UM/UIM). If the negligent driver is uninsured (which you may not find out about until weeks or months after the accident), or if you are involved in a hit-and-run, or if your injuries are extremely severe and will overwhelm the negligent driver's minimal insurance. In that case, you will be making a claim against your insurance company. Even though you are a loyal customer, they will want to limit their exposure, and they will look for any excuse to avoid paying your claim.

In either case--if you give a recorded statement, your insurance company will attempt to use that statement against you. It could mean the difference between settling your case, or having to slog it out all the way to a trial verdict.

Still Want to Talk?
If you still want to talk to the insurance company, don't let them record it. The information is just as valuable without a microphone. Of course, most lawyers agree that you shouldn't talk to them--they have their tricks, and it's better to have someone who knows them and knows how to avoid them.

Want to Know More?
Contact us by phone (443.850.4426), e-mail (, or internet. We can take the stress of your Maryland automobile accident away by dealing with the insurance companies, and letting you focus on more important things--getting better.

Finding a Good Lawyer For Your Personal Injury Lawsuit

May 13, 2013

Norwood jury box 2.jpgBecause accidental injuries are unexpected, the need for a good lawyer can be immediate and unplanned. Too often people randomly select lawyers based on a television ads, phone book ads, or internet marketing. Selecting a lawyer solely on the basis of advertising precludes a well-balanced understanding of the lawyer's actual capabilities.

However you find your potential list of lawyers--whether from advertising, a referral from a friend, or even a lawyer you used long ago, it's a good idea to dig a little deeper to make sure that the lawyer is best equipped to help with your problem. Here are five things to look for:

Number 1: A Lawyer Who Handles Your Kind of Case

If your potential lawyer does bankruptcy, divorces, wills, car accidents and patents, you have found someone who, whether he admits it or not, is a general practitioner. Those types of lawyers might be okay in small towns or from 150 years ago, but modern law has become so complex that a general practitioner may not be able to keep up with changing laws in four or five different areas. Your lawyer should be focused on one or two practice areas. These are some examples of practice areas:
  • Personal injury
  • Bankruptcy
  • Family Law
  • Social Security Disability
  • Criminal Law
  • Trademarks and Patents
  • Contracts
  • Collections
Our firm only handles personal injury. There are several subsets of personal injury cases, but they are similar enough that it is manageable to keep up-to-date on all of them. Personal injury cases include:
    Automobile accidents
  • Tractor-trailer accidents
  • Motorcycle accidents
  • Slips-and-falls
  • On-the-job injuries (workers' compensation)
  • Medical malpractice
  • Product liability (defective drugs, medical devices and other products)
That's complicated enough without adding patents and trademarks to the mix.

Number 2: A lawyer who has been recognized by reputable organizations and peer-review

There are so many different rating systems out there that it can be difficult to tell the legitimate ones from the systems which are mostly advertising--designed by lawyers to simply pat themselves on the back. The top rating system is Martindale-Hubbell, which uses a 5.0 rating system to score lawyers. You can check with the state bar to see if your lawyer has ever been disciplined. If so, it is important to look into the reason. Most mistakes are simply that--mistakes. But if your lawyer has been punished for stealing from clients, you might take a second look.

Number 3: A lawyer who continuously betters himself

Your lawyer should never rest on his or her laurels. Instead, your lawyer should persist in reading legal books, attending seminars and going to continuing legal education events. It's called the practice of law for a reason--there is no perfect. But if your lawyer is not striving to better his or her technique, that lawyer will stagnate. When interviewing, find out when your potential lawyer's last CLE (continuing legal education) event was. If your lawyer doesn't attend at least two every year, it is time for a new lawyer.

Number 4: A lawyer who will talk with you

Every firm works a little differently. In some, your primary contact will be with a paralegal. In others, your lawyer will assign a junior associate. In others, you may get the ear of the senior lawyer in charge of your case. It is important that you have the full confidence of your lawyer. Your lawyer should never be reluctant to meet with you or take your calls. When you first meet with your potential lawyer, find out who your primary contact will be. If it's not with the interviewing lawyer, you should med the person who is responsible to you.

Number 5: A lawyer who will go to trial

Reputation, though not everything, is really, really important. The insurance companies keep tabs on lawyers--they know which lawyers are settling most of their cases, and which lawyers are refusing to accept lowball settlement offers by filing lawsuits and going to trial. Insurance adjusters are afraid of the lawyers who file cases--those lawyers should be getting verdicts that are higher than the settlement offers in most cases. Not to mention that taking a case to trial costs the insurance company more. The end result is that lawyers who take cases to trial get better settlement offers, and when they don't get offers that are good enough for their clients, they will take the insurance companies to task at trial.

Contact Us

If you need help with a Maryland personal injury accident, call us at 443.850.4426, send an e-mail directly to a lawyer at, or send us a description of your problem online. We will evaluate your claim and can help to guide you through the legal process.

Maryland Helmet Law Now Extends to Scooters

October 1, 2012

50cc scooter.jpgEffective today, moped and scooter riders must wear helmets.

Maryland has proudly required motorcyclists to wear helmets since 1992 (though, the law is not without its detractors, who try to repeal it at every opportunity).

This makes sense, of course: we require seatbelts, carseats and booster seats in cars, and the occupants there have two tons of steel to protect them other vehicles, trees, and the roadway. In a motorcycle accident, the sheer size and weight of any vehicle, compared to the slight size and weight of a motorcycle, can cause terrible injuries in what would otherwise be a minor impact. Motorcyclists are easily ejected from their bikes, and suffer a range of serious and permanent head injuries, if not death. There seems to me to be little difference between a motorcycle and a scooter or moped.

The new law also requires that mopeds and scooters be titled and insured. This brings motor scooters and mopeds one step closer to cars--in most respects, they are treated like bicycles.

In a motorcycle accident, and a moped or scooter accident, we argue that a rider's failure to wear a helmet is inadmissible. The rule in Maryland for car accidents is that non-use of seatbelts are inadmissible. The theory is that, if the negligence of the defendant caused the automobile accident, then the fact that a seatbelt/helmet was not used is basically irrelevant. Furthermore, we don't want judges or juries blaming the victim for his injuries, when they are primarily caused by the defendant driver. Of course, we'd be happier if all riders would just wear helmets. If it means fewer lawsuits, so be it.

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?

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.

Winning your trial in front of jurors who don't want to be there

July 10, 2012

Norwood jury box 2.jpgThe vast majority of people don't want jury duty. As a lawyer, I've always hoped for the opportunity to serve and experience "our civic duty" firsthand. I've been called twice, but have not been selected. Still, hanging out with the throngs of "potentials" has verified for me that some people will say anything to try and get out of jury duty, but most people will just hunker down and go through the process. But, they might not be happy about it.

Baltimore City lawsuits require Baltimore City jurors, and until recently, most people were called once every 18 months if not selected for a trial, and once every three years if they were selected for a trial. That is changing. Baltimore City residents are now being called every year.

The source for our jurors is voting records and driving records. Baltimore Sun writer Michelle Alston correctly observes that many Baltimore City residents neither vote nor drive, so there should be another way to identify those residents. The number of non-drivers in the City is especially disproportionate, where many people rely on buses and light rail. She suggests using social security numbers. There are, in fact, any number of ways to do it. Most residents pay taxes--any resident who files a return should be subject to the rigors of jury duty.

The reality is, though, that jurors who are called more frequently are not likely to be significantly more resentful. Those jurors who are extremely upset are going to be upset if called once a year or once every five years.

Lawyers must address the problem at two points. The first is during voir dire, which is the time that judges and lawyers are allowed to ask the jurors questions to determine whether they can be fair. Strong feelings of resentment should be probed, and the lawyers should ask the judge to strike those jurors for cause, arguing that they cannot be fair, and they are wild cards--in particular, they are more likely to punish the plaintiff for filing the lawsuit and forcing them to be there. If the judge will not grant the strike for cause, lawyers should be prepared to exercise their peremptory strikes--each side gets a limited number of these, though, so it might not always work out.

The second opportunity to deal with resentful jurors is during the trial. Lawyers should of course thank jurors for their attention and time. Many lawyers acknowledge the difficulties and inconveniences of jury service. Most importantly, the case needs to keep moving--delays are likely to cause resentment to bubble over, and if the jury believes that one side is causing those delays, the verdict may turn out differently than it should.

Nuts & Bolts of a MAIF Uninsured Auto Accident Claim

June 27, 2012

MAIF logo.jpgMost auto accident lawyers hate filing MAIF claims. First, there are a lot of hoops to jump through, including a 180-day notice requirement that, if not met exactly, can capsize the entire claim. Second, MAIF uninsured claims are limited to $30,000 per person and $60,000 per accident (see our recent post on the increased minimums). Third, MAIF is really hard to deal with--these claims often require twice the amount of work as one against any other insurance company, and most MAIF uninsured claims have to be resolved at trial. MAIF doesn't like to pay out under any circumstances.

Auto accident victims may have to look to MAIF for recovery in these circumstances:

  • Hit-and-run auto accident ("phantom vehicle")
  • At-fault driver was excluded from the vehicle's insurance policy
  • At-fault driver was an out-of-state driver with less than minimum insurance
For lawyers looking to make their first MAIF Unsatisfied Claim and Judgment (UCJ) claim, here's what you need to know:

The Rules
There are quite a few rules on MAIF claims. Here's where you need to look:

Notice Deadline
There is a strict 180 day deadline to make a MAIF UCJ claim. There are some exceptions (for example, a victim must provide notice within 30 days of a liability carrier's notice of disclaimer), but failure to make the claim could leave auto accident victims without any recourse.
A claim must include the following, where applicable:
  • MAIF Notice of Claim Form, signed by the victim (it hasn't changed since 1998)
  • Description of the accident, including date, time, location, names and addresses of witnesses, vehicles involved
  • All medical records and bills up to date of filing of Claim
  • Police report of accident
  • Documentation of property damage
  • Lost wage certification
  • MVA records
  • Insurance company cancellations /disclaimers
  • Recorded statement
MAIF Settlements and Lawsuits
As indicated, MAIF doesn't like to settle these claims. In the majority of cases, victims will have no choice but to file a lawsuit. Where the negligent driver is known, the lawsuit should be against that driver. Sending a copy to the MAIF adjuster will allow MAIF to come into the lawsuit.

If the negligent driver is unknown (for instance, in a hit-and-run accident), the victim can file a lawsuit against MAIF directly if they can show that they used reasonable efforts to identify the negligent driver, and were unsuccessful. MAIF is usually of the opinion that "reasonable efforts" include moving heaven and earth. I think most judges interpret reasonable to mean reasonable.

Contact Us
If you have been injured in a hit-and-run auto accident or the negligent driver did not have any insurance, you may have a claim against MAIF. Many lawyers don't accept these types of MAIF claims because they are more difficult, and have strict notice requirements (MAIF must receive a specific notice within 180 days of the accident. We handle these cases--contact us at 443.850.4426, or online for a free consultation.

More on MAIF and Insurance Claims

Where To File Your Maryland Car Accident Lawsuit

June 26, 2012

Talbott County Courthouse.jpgIn every case, and certainly every Maryland automobile accident case, the lawyer should consider what county the case should be filed in. In Maryland, you typically have the following options:

  1. File in the county where the car accident happened
  2. File in the county where the defendant lives

It is important, therefore, to be clear about where the accident happened, and where the negligent driver lives. Typically the police report, if one was listed, has both the county where the accident happened, and lists the negligent driver's address. However, in situations where the accident was on or near a county line, the police report may not be correct. Also, some lawyers don't realize that some cities actually straddle multiple counties. For example, an accident in Laurel, Maryland may take place in Prince George's County, Howard County, or Anne Arundel County. Likewise, the address the police usually put on the police report may not be accurate--it may be from an old driver's license or insurance card. Or, the person who caused the collision may move between the time the accident happened and the lawsuit was filed.

Sometimes there is no choice, and these two counties are actually the same county. Other times, the plaintiff's lawyer has the opportunity to maximize his or her client's recovery by choosing the specific jurisdiction in which to file a lawsuit. Here are some factors that go into this analysis:

  • The types of injuries
  • The amount of medical expenses--is it a District Court case or a Circuit Court case?
  • Whether the case will be a jury trial or a bench (judge-decided) trial
  • How bad the accident was (including, for example, the property damage)
  • The demographics and likeability of the plaintiff and defendant
  • Whether the plaintiff or defendant is generally known in the community

Contact Us
We have extensive experience in seeking out all possible options for lawsuits, and we can help you to direct your case to the most advantageous county in order to maximize your auto accident settlement or verdict. If you have questions, contact us at 443.850.4426, or online for a free consultation.

Trending: Lawsuits Against Employers For Encouraging Distracted Driving

June 23, 2012

Employee Handbook.jpgThe scourge of distracted driving is so bad that I predict many attorneys will be adding to their lawsuits complaints against employers for failure to have policies, procedures and protocols to discourage distracted driving. First, a little bit about agency.

An agent is someone who is working for someone else. When an employee gets in his car to go do something for his employer, he is the agent of the employer. When the driver negligently causes a Maryland auto accident, both the driver is responsible and the employer is responsible.

Because distracted driving is such a big deal right now, employers are jumping on the bandwagon to come up with policies about when their employees can and can't use cell phones while driving. Some companies are prohibiting the use of handheld phones; others are prohibiting all cell phone use, even hands-free conversation. Where an employer does not take the step to set a policy, they are setting themselves up for more liability in the event of an accident. Realistically, they will be on the hook for any auto accident injuries regardless of whether the company was negligent, but it gives one more reason for the judge or jury to decide that the company is responsible. Also, it puts forth negative conduct by the company, which makes a jury more likely to decide against them if the question of liability (whether the employee was negligent) is unclear.

Colossus: Using Artificial Intelligence To Value Automobile Accident Injuries

June 12, 2012

Colossus of Rhodes.jpgColossus is a software program used by many insurance companies to determine the value of automobile accident claims and lawsuits. The software program gets a bad rap from plaintiff's lawyers--probably because it <gasp!> undervalues those claims. Now, a former Allstate and Encompass Colossus expert and a former Texas insurance commissioner are informing the Consumer Federation of America's latest report, Low Ball: An Insider's Look at How Some Insurers Can Manipulate Computerized Systems to Broadly Underpay Injury Claims.

That report details the means by which adjusters can use the software to produce lower evaluations of claims. Insurance adjusters can discount medical bills, evaluate injuries differently than doctors, ignore the likelihood of future medical care, and decide that the claimant/victim was partially at fault for the auto collision.

It sounds like the report is concerned that insurance adjusters might be doing their job.

Don't get me wrong--I dislike the stupid "back-and-forth" process of negotiating claims with insurance companies as much as the next guy. In a recent GEICO case, for example, I went through three different adjusters. The Junior Adjuster negotiates with me to an offer that represents his "final, highest offer." It's not enough, and it's not fair, so I file a lawsuit. The Intermediate Adjuster then gives me another offer, and tells me she can't go any higher. So, I continue on, preparing for trial by working on discovery. Then, a week before the trial, Senior Adjuster calls me up, with (you guessed it) another final offer (and, the scent of desperation). In that case, the last "final offer" was just a tiny bit behind what was my first, and unchanging, demand (GEICO hates it when you don't give them counterdemands). My client was happy with that, so we resolved it. If the insurance company would have just offered that from the beginning, they could have avoided paying a defense lawyer. Basically, they lost out on this deal. But, they only operate like this because they win so many other times--many lawyers are afraid to go to trial, and they will accept these "low ball" offers.

The job of insurance companies is to make money for their shareholders. They will do this by hook or crook. Some insurance companies are more unreasonable than others. If they want, they can refuse to pay more than $1.00 for every single claim. That's why we have auto accident trials.

Here's why Colossus is completely irrelevant: Maryland auto accident victims who have a trial attorney advocating on their behalf will not accept low ball offers. Whether the insurance adjuster uses a computer program, their own education and experience, or a Ouja board to determine the value of a personal injury case, the reality is that a lawyer should make an independent decision, and advise the client accordingly. Colossus is not artificial intelligence--it is a tool used to help insurance companies determine the value of personal injury claim. If they want to cheat the software, they can. If they want to ignore medical records, they can.

But we don't have to accept these offers. The insurance companies keep offering low settlements because some lawyers do accept them. If an insurance company's adjuster gives a low offer and claims that "Colossus made me do it," then teach Colossus a lesson--file a lawsuit. The judge and jury won't care (and won't be allowed to hear) about what Colossus thinks of your case.

More on Colossus

Lawsuits Against Text-Message Senders: Conclusion

May 29, 2012

Judge David Rand.jpgOur last post on Distracted Driving Lawsuits: Suing the Sender ended with one question: what will happen?

As predicted, the New Jersey trial judge dismissed the sender of the text message. The judge stated that it was reasonable for text-senders to assume that text-receivers will act responsibly. He also noted that drivers must deal with numerous distractions: phones, GPS devices, and road signs, to name a few.

Were I to extend this duty to this case, in my judgment, any form of distraction could potentially serve as the basis of a liability case.

The basis for the judge's ruling is important--it rests on the premise that a text-sender has no duty of care to other drivers. Under Judge Rand's interpretation, it would not matter if the text-sender knew that the driver was driving at the time, and it would not matter if the text-sender knew that the driver would read those messages while driving. I think that's the right decision, but it would have been easier for the judge to rely on the specific evidence in this case--the receiver was himself sent the last message, so reading a message did not cause the collision.

That case will move forward to trial against the texting driver, though the lawyer for the motorcyclists indicated that he will appeal the judge's ruling as to the text-sender.

Pre-Impact Fright: Fear of an Impending Collision is Compensable in Maryland

May 21, 2012

Skid Marks.JPGThe 1998 Court of Appeals decision in Beynon v. Montgomery Cablevision ruled that pre-impact fright is compensable in Maryland auto accidents. We all know what pre-impact fright is--those brief moments before an impending collision when you realize that another car is going to hit you. This is the moment that causes you to freeze, to shut your eyes, to pray, to hold your breath. It's that moment that the adrenaline shoots through your system.

The old rule was that damages could be recovered for injuries like fright only with physical impact, but that rule was done away with in 1909. For the run of the mill auto case though, a better case is made with some element physical impact or injury--a close call doesn't usuallycut it. The Beynon case was about whether pre-impact fright was compensable in a wrongful death case where the driver was killed in the collision. In that tractor-trailer collision, a driver collided into the rear of a truck. The allegations against the truck driver were that the truck did not have proper lighting in the rear, making it difficult to see. Leading to the point of impact were over 71 feet of skid marks--a clear indication that the driver knew what was coming. He died on impact. The trial jury decided that $1,000,000.00 in pre-impact fright damages were sufficient (according to Maryland law applicable at the time, that figure was reduced to $350,000.00).

A primary concern of the court was to prevent fabricated and speculative claims. Particularly in wrongful death cases, the family could claim that there was pre-impact fright, but it can be a difficult thing to prove. Unless you have over 71 feet of skid marks.

Pre-impact fright is one element of what are called "non-economic damages." Those include things like pain, suffering, mental anguish, inconvenience, and disfigurement. They are the things that cannot be calculated with logical certitude, like medical expenses and car repair costs.

Using iPad to Wirelessly Present Your Case At Trial

May 11, 2012

iPad Jobs.jpgThe iPad is great--you know it, I know it. It's slick. It's refined. It just oozes "cool." Lawyers are now starting to use the iPad for work. Many use it to complement their laptops. Some use it now instead of a laptop. It's even making the rounds at depositions, used to hold thousands of pages of documents and potential exhibits.

When it comes to trial, though, most attorneys ruin the cool. They have an iPad. They have a projector. The iPad is connected to the projector, by ugly wires (an iPad to HDMI adapter, and HDMI cables). They are tethered to the projector, by ugly wires. At that point, it doesn't look nearly as sophisticated.

Lawyers: there is one way to present your case, and to maintain the ability to walk anywhere you want in the courtroom, with your iPad in hand. The jury will marvel at your grace, and will respect your technological sophistication. Especially compared to the defense lawyer who is using a foam-core blow-up and a slide rule.

Here's what you need:

  1. iPad

  2. Projector and projector screen

  3. Verizon Jetpack.jpgMiFi device (available through most cell phone companies--I use Verizon's JetPack

  4. Apple TV.png
  5. Apple TV (it's not a TV, but a device that connects to a TV or projector

  6. HDMI cable (to connect the Apple TV device to the projector

The MiFi device is used to create a portable wireless network, and it bridges the gap between the iPad and the Apple TV device. The Apple TV device then collects the signals from the iPad, and transmits them to the projector through the HDMI cables. That leaves you free to roam the courtroom.

Contact Us
If you want to learn more about how to use technology at trial for your garden variety automobile accident cases or medical malpractice cases, contact us at 443.850.4426, or online for a free consultation.

For More Information

Bus and Taxi Accidents in Maryland

February 24, 2012

Maryland Bus Accident.pngI've learned to not take things for granted at trial. I had a case once where a witness was going to testify about something, the defense lawyer objected, and the judge sustained (agreed with) that objection. I explained the the judge the objection was improper, that the evidence was allowed under Maryland law, and that my client should have been allowed to testify. He didn't even spend a second reconsidering, but denied my request.

[It's not important for the purpose of the story, but the judge ruled that the witness could not testify about what she heard an employee of the defendant corporation say immediately after an accident on company property. The judge ruled that the employee was not the corporation, so the statement did not qualify as an admission by party-opponent. Therefore, it was hearsay and forbidden. This is dead-wrong on the law].

So, I've learned that judges are people, too. They don't always have all of the answers. It must be hard to be a judge--they have to know a little about the law for criminal cases, family/domestic cases, and civil cases. Of course they will get things wrong from time-to-time. I was caught off-guard because I thought the evidence rule was a basic one that everyone knew. I never made that mistake again.

When I go into court, now I prepare Trial Memoranda to give to the judge, with copies of caselaw, to make sure that the judge is aware of the law on any issue on which the outcome could hinge (and to make sure the record is clear if I need to appeal the case). A few weeks ago I had one such case. Here's the story.

My client was stepping onto a bus. The bus driver refused to lower the bus (they have pneumatic mechanisms to help injured or disabled people get on so the steps are not so high). It was icy out, and my client was afraid of falling. After asking the driver twice, and being twice refused, my client attempted to board the bus and fell.

In Maryland, taxis and buses are known as "common carriers." Common carriers have a higher duty of care than the rest of us. I needed the judge to know that, in this case, the bus driver had a higher duty of care toward my client. I couldn't assume that the judge knew it, particularly where my client had not even completely boarded the bus. So I submitted a trial memoranda, which the judge read while on the bench. In his ruling, he specifically noted that he also read one of the cases I cited in the memoranda, and that I was correct. Maybe he would have gotten the law right on his own--he's a smart judge. But maybe not, and I didn't want to take the chance.

If you are interested, here are the main points of the memo. When you go into trial, make sure your lawyer is prepared for the unexpected--ask what research he or she is going to give the judge.

Common Carriers Have A Heightened Duty To Provide Safe Entrance for Their Passengers.

It is axiomatic that common carriers, including commercial buses, taxi cabs and trains, have a heightened duty to their passengers. A common carrier: "...must employ the utmost care and diligence which human foresight can use. It is required to use the utmost degree of care, skill, and diligence in everything that concerns its passengers' transportation but is extended further and requires the carrier to provide a safe means to enter and exit the bus." Leatherwood Motor Coach Tours Corp. v. Nathan, 84 Md.App. 370, 376 (1990) (emphasis added).

This duty applies when vehicle is in motion, but it also applies when the vehicle is stopped. A common carrier "owe[s] a duty to be watchful and alert at all times." Jacobson v. Julian, 246 Md. 549, 559 (1967).

Maryland courts have defined passengers, to whom this heightened duty of care is owed: "[a] person becomes a passenger when, with the implied consent of the carrier, the person enters upon the bus, but actual entry upon the bus is not necessary to create a relationship of carrier and passenger in which one may become a passenger." Leatherwood, 84 Md.App. at 375-376. Further, "the duty begins when a passenger who has paid his fare or a prospective passenger intending to do so starts to enter upon the conveyance or upon the carrier's station, platform, waiting room, or other facility maintained by the carrier for the passage and convenience of its passengers...." Leatherwood, 84 Md.App. at 379 (emphasis added).

Common carriers that pick up or drop off passengers must ensure that the location selected by the driver is reasonably safe. In Baltimore Transit Co. v. Brooks, the plaintiff alleged that the driver of a trackless trolley stopped directly in front of an isolated patch of sheet ice, which the plaintiff stepped on when exiting the vehicle. 224 Md. 242 (1961). The plaintiff prevailed at trial, and the Court of Appeals agreed that the case was properly submitted to the jury to determine "whether the driver either saw, or in the exercise of the care required of him for his passenger about to leave the vehicle, should have seen the relatively large sheet of ice, and either driven onto it so the plaintiff could have stepped on the dry pavement, or have stopped short of it on the dry street." Baltimore Transit Co., 224 Md. at 245.

Proving The Other Driver Was At Fault In A Maryland Auto Accident

February 20, 2012

Maryland Car Accident Lane Signs.pngMaryland automobile injury lawsuits come in three types:

  1. One driver was clearly at fault (for example, the average rear-end collision);
  2. It's uncertain which driver was at fault, but the rules are clear (for example, a "lane change" case where one driver, we don't have any outside evidence, merged into the other driver); and
  3. Someone is at fault, but it's hard to know who.
Let's talk about No. 3, today. The auto accident rules of the road are usually pretty easy--most of them are "common sense" acquired by most of us drivers over the years. Many rules on the "standard of care" owed by drivers to one another have been lovingly written by the Maryland legislature, mostly in the Transportation Code.

But sometimes, a client comes in and tells you what happened. It might sound okay, but some of the details are fuzzy. Technology is a wonderful thing, so I frequently visit Google Earth for a bird's eye view and street view of the accident.

Unfortunately, not all rules are laid out in the Maryland Transportation Code. Sure, there is some discussion of traffic control devices, flashing signals and the like (see here). But what about the actual rules regarding when you can cross a double yellow line? There are a lot of road signs and other marking rules, and they are not always obvious.

One source of additional rules, infrequently used in court, is the Maryland Driver's Manual. If you have questions about the single white hashed lines, or the meaning of sign colors, or the meaning of roadway symbols, this is the place to look. If you know that some tidbit from the MVA Driver's Manual might be useful at trial, you might ask the defendant interrogatories to figure out when he/she last took a written driving test. You can try to obtain the driving manual from that year to use in cross-examination to help establish the standard of care. Or, you can try to use the driving manual from the current year. That manual can help to establish some of the "common sense" rules.