Trial Lawyer Resource Center

The Accident and Injury Lawyer Blog has a post on a issue that troubles many accident lawyers in our smaller to mid-sized case: how to explain to a jury the fact that the injury lawyer referred the client to a doctor. This post give some thoughts on the best way to handle the lawyer referral problem.

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I wrote a blog post this morning on the Maryland Injury Lawyer Blog on how to build a network of referring lawyers for personal injury lawyers.

I note that I left out one obvious piece of advice: have a meaningful blog that is of interest to other lawyers. I believe the Internet is a better vehicle for attracting referring lawyers - particularly out of state lawyers - that it is for injury victims. Referring lawyers are not going to be impressed by your explanation of the accident that occurred on your local highway last night. You need to write about something either use or interest to personal injury lawyers. Another piece of blogging advice I have is stay on message. Keep the focus narrow. No one really cares about your view on whether Obama should take Clinton as his vice-president. When I found myself doing this, I started the Maryland Lawyer Blog which allows me to randomly muse about whatever off topics I want to talk about. But you main blog should stay on the subjects of interest to injury lawyers.

Anyway, read the post (click here) and let me know your thoughts. As long as it is, I threw it up rather quickly so if anyone has an suggested additions or changes, let me know. I'd like to keep adding to it.

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We received an interesting motion to compel a few weeks ago. Defendant's medical malpractice lawyer is seeking a 2 hour interview from Plaintiff with Defendant's vocational rehabilitation expert. In his motion, the defense lawyer argued that because the vocational rehabilitation expert interviewed the Plaintiff, the Defendant is being put at a disadvantage.

The problem is that the Plaintiff has already been deposed. If the Defendant's lawyer had questions related to her disability, couldn't he have asked those questions in deposition? Our view is that the defendant's lawyer is essentially asking the Plaintiff to give a second deposition.

You can find our response to the Defendant's motion here in the event that you are ever faced with a similar issue.

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Dave Swanner, the co-founder of the Trial Lawyer Resource Center, has a blog post this month on his much praised South Carolina Trial Law Blog discussing the efficacy of Facebook for lawyers.

I’m not sure if it is an effective resource for injury and malpractice lawyers but it sure is pretty cool way to keep in touch with people and follow what they are doing. Most of my Facebook friends are former students of mine from the University of Baltimore School of Law.  It is great to see people you taught in the classroom getting great jobs and joining the legal community. While I admit that I do not keep my Facebook friends up to speed on what is going on in my life, I enjoy following the updates of those who do post about that what is on their personal and professional plate.

If you want to add Ronald V. Miller, Jr. as a friend, click here The more the merrier. My only requirement for adding you as a friend is that you have a pulse (and I would consider waiving this requirement).

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The National Law Journal published a story last month on what is increasingly becoming a battle with defendants' lawyer in Maryland and apparently nationally over the terms and conditions of defense medical exams.” Accident lawyers in Maryland are beginning to realize that allowing the plaintiff to submit to an IME is a bargaining chip to require examining doctors to comply with their obligations to produce their relevant financial information.

You can find the entire National Law Journal article here which includes a quote from me.

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The Wall Street Journal Health blog reports that more than 100 traffic or personal injury incidents have been linked to the smoking cessation drug Chantix, according to the Institute for Safe Medication Practices. Researchers theorize that visual disturbances that may be caused by Chantix are causing these accidents. Patients on Chantix are reporting convulsions, seizures, blackouts, or spasms that could be the cause of injuries with Chantix users.

The report said that 86 cases of convulsions Chantix have been reported since 2006. These numbers are vastly underreported according to Thomas Moore, one the researchers at the Institute for Safe Medication Practices. Moore told The Wall Street Journal he and his fellow researchers were very conservative in the estimates they made in this study.

Pfizer says that there were only three seizures reported with Chantix in the pre-market studies that were conducted before Chantix went on the market. The problem is that Pfizer pressed the FDA to rush Chantix onto the market. When you add "rushing to the market" and "drugs that alter brain chemistry" together, is there any great surprise when the sum equals problems?

Consider this: approximately 4,500 people took Chantix during the development of the drug, with about 450 people getting treatment for at least six months and another 100 for a year. Most of the pre-market study groups were given Chantix for 12 weeks or less. Since then, more than 6 million people have been prescribed Chantix, many of which are long term users.

Again, can we be surprised to learn that we have not flushed out all of the potential problems with Chantix? Lawyers handling Chantix cases were already investigating the suicide risks that have been reported to be associated with Chantix. Now, lawyers are looking at a potential class action involving these Chantix injuries that appear to be caused by these visual disturbances as well as other side effects being discovered such as potentially lethal cardiac rhythm disruptions, acute myocardial infarction, seizures, diabetes, and psychosis. Chantix has also been previously linked in a small number of cases to Stevens Johnson Syndrome, a potentially deadly skin disease.

The FDA has egg on its face again with Chantix. Yet, the Supreme Court is telling us that the FDA should be the sole watchdog for medical devices and perhaps even all pharmaceutical drugs and it will be if the industry has its way in Wyeth v. Levine this Fall. Coming on the heels of debacles with Medtronic leads and Heparin, both cases where the vigilant FDA could have made a difference, you can expect victims' advocates in Congress will have a lot of ammunition to take this ball away from the Supreme Court on the question of preemption.

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When to Name Experts Choosing between being a plaintiffs’ lawyer or a defendants’ lawyer is bit like choosing whether to play offense or defense in football. Actually, it is really not like that at all. But one of the benefits of being a plaintiffs’ lawyer in medical malpractice and accident cases is that you can (1) largely dictate the pace and direction of the case, and (2) you can be fully prepared from the moment litigation commences.

Most lawyers completely squander this opportunity and they end up having to reload their gun in the middle of the gunfight when they could have put all of their bullets in the chamber from the beginning.

When we file a lawsuit in accident and malpractice cases, we serve the defendant with the Complaint, Interrogatories, Request for Admissions, Request for Production of Documents and Expert Designation at the same time we serve the Writ of Summons. It is one more hoop a lawyer has to jump through when commencing suit, but it helps you meet deadlines you will most certainly face down the road. The caveat to early designation of experts is to still put the deadline on your calendar and later check the designated experts to make sure you do not need additional experts for trial.

But to underscore the usefulness of naming experts from the beginning, do a Westlaw search for missed expert deadline cases. In only a few minutes, you will find hundreds of cases. I will bet you in 95% of these cases, the injury lawyer knew who his experts would be before filing suit but simply forgot to designate them before the deadline.

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U.S. Supreme Court Justice Antonin Scalia reportedly told lawyers at a dinner of the 7th Circuit Bar Association dinner earlier this month that when writing briefs and giving arguments, lawyers should "use words that would make people look at you funny if you were to use them at a cocktail party."

If you arguing to the United States Supreme Court,  by all means, bring your thesaurus and have at it, those folks are used to dealing in big words.   Otherwise, I think that you might want to consider the judge and the case before taking that advice. 

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In many ways, lawyers in personal injury cases should prepare for mediation in the same manner we prepare for trial, excluding, of course, witness preparation. If the case does not settle, you will already have some of your prep work done. The one thing I used to often forget is to properly prepare the client for the mediation.

First, you want to prepare your client for the process itself. Mediations are done a number of different ways, so if you have not mediated a claim with that mediator before, make sure you find out how that mediator conducts the mediation (you local trial lawyer listserv is usually the easiest way). The format of the mediation typically means little to the lawyer–no matter what the initial path is, negotiations typically unfold as they do, regardless of the format. But the client is going to feel a lot more comfortable and in control of the process if he/she understands the process.

Finally, sometimes defendants’ lawyers and the adjusters on the case will make a point that the client can answer. Sometimes, a good mediator will suggest that the client provide an oral answer to the issue the defendants think is a sticking point. Obviously, there is no one-size-fits-all answer as to whether to allow the client to address the defendants, but I think more often than not it helps.

First, it gives the adjuster/lawyer a reason to increase the offer because the client adequately addresses the concern. But the hidden upside is that it humanizes the client. Mediations are a very artificial process where the client, the subject of the case, is largely mute. This creates – for lack of a better phrase - a strange vibe that does not play to your client’s interests. When the client can look the defendants’ lawyer or adjuster in the eye, as clichéd as it may sound, the client begins to look like a human being instead of a medical record. In this sense, defense lawyers and adjusters are just like jurors in that they are far more willing to compensate a human who has suffered, or is suffering, than they are a stack of medical records. 

Accordingly, the client should be prepared to talk about her case.  This needs to be done before the mediation.  If you ask for 15 minutes to prepare your client, some of the realism and the humanity is lost.

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The last auto tort case I tried involved a car accident involving a car that pulled out of a gas station and hit our client.  At trial, the Defendant claimed the car must have been coming so fast that he could not have seen the Plaintiff coming.  I think I showed through the Defendant's illogical time/speed/distance estimations that the accident did not happen as he suggested. 

But some jurors told me after the trial that the Google Earth images I used at trial were very helpful in demonstrating how the Defendant's story was not plausable.   It is funny, years ago before Google Earth was availabile I remember auto accident lawyers paying for overhead photographs of car accident scenes.   Now they are easily available yet no one uses them.

Jurors appreciate the clarity that overhead pictures provide and you get credit with them for being the lawyer that provided it to them.   It is worth the 10 minute investment.  

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