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I have written in the past that a trucking accident case is much more than an auto accident case with a bigger vehicle involved. Lawyers representing people injured in trucking accidents need to consider the different agency relationships that may be involved between the driver, owner/lessor/lessee of the vehicle, as well as the causes of action and/or insurance issues that arise out of those relationships.

Another difference is that trucks are perceived to be more dangerous on the road than standard automobiles. They are bigger and heavier, have more and bigger “blind spots”, and are operated by drivers who may have fatigue issues from spending hours and hours in the driver’s seat. Most drivers/jurors have had at least one terrifying personal experience out on the road as a result of an encounter with a big rig.

In fact, I nearly had one take me out on my way to work this morning. In rush hour traffic on I-695, the truck was weaving in and out of traffic (always a great idea) and came into my lane without checking to see if it was safe. Because I was on the driver’s side, this can only mean that the driver never checked his mirror before coming over. We’ve all seen those signs on trucks that say “if you can’t see my mirrors, I can’t see you.” Well, I could see this guy’s mirrors, which makes me think he would have seen me if he had looked. Thankfully, I was able to avoid a collision, but I am confident the driver had no idea I was there until he heard my horn.

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Regular readers of this blog (Hi, Mom!) will probably remember that cross-examining defense medical experts on the issue of financial interest bias is a topic that I have discussed several times. That is because our lawyers believe that when an expert has a financial interest bias, that it is of vital importance to get that information before the jury, so they can fairly evaluate the wtiness’ testimony.

In Maryland, the most useful authority on the issue is contained in two appellate opinions: Wrobleski v. DeLara, 353 Md. 509, 727 A.2d 930 (1999), and Falik v. Hornage, 413 Md. 163, 991 A.2d 1234 (2010). The second one is a Miller & Zois case. Actually, two cases combined for appeal. My firm handled both of these cases. So we feel that our law firm is out on the leading edge in this issue.

One topic that often comes up in personal injury litigation is the issue of personal injury lawyers referring clients to particular medical providers. Defense lawyers always want to delve into this, on the theory that there is some wink and nod quid pro quo between the lawyer and the doctor that the referral will result in favorable testimony. I don’t know that this is necessarily true. There are lots of good reasons referrals like this are made: many clients do not have health insurance to pay for treatment, Maryland PIP is only $2500 (and is often used up to replace lost wages), and many treatment providers will not accept patients who were involved in accidents.

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Uninsured/underinsured motorist cases are probably the most complicated kind of car accident cases you will see. These cases are called “hybrid” actions because they combine contract and tort law. You have the underlying tort case against the negligent driver, along with a contract cause of action against the UM carrier. You will have the normal concerns about proving liability and damages that you would have in any car accident case. In addition, you must be careful to prove the contract elements that you need to show entitlement to UM benefits.

These are things like the existence and extent of the tortfeasor’s liability coverage, the existence and amount of the UM coverage, and the plainitff’s entitlement to benefits. Obviously, you would send interrogatories to seek to establish one or more of the contractual prerequisites. But another good way to get the needed proof is to use an under-utilized but very powerful discovery device called a Request for Admission.

Request for Admissions

These are governed by Md. Rule 2-424. Basically, they are a list of facts, the existence of which the defendant is asked to either admit or deny. If admitted, the admission is considered conclusive proof of the existence of the admitted fact for the purposes of the case. They are especially good for proving the existence of simple “paper” facts like the ones you encounter in a UM case.

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Here is another great real-life trial preparation tip that I have forgotten myself in the past: Check the weather the day before!

I am finalizing my preparations for a trial tomorrow in a car accident case in Baltimore County Circuit Court. According to weather.com, there is a 60% chance of rain tomorrow morning. So my trial prep now includes making sure I remember my galoshes, raincoat, and umbrella. It is hard to make a good first impression on the jury when you look like you wore your suit in the shower. From a performance perspective, it’s nearly impossible to be at your best when you have wet, cold feet. I know I look like a dork in my galoshes. A warm, dry dork. So I don’t care.

I highly recommend the overshoes that I wear (pictured), the Neos Villager. They come up well over the ankle, so they work great in rain or snow. They are more costly than simple rubber ones, but they work better and last longer. Mine were a gift (thanks, Mom!) but if they ever wear out, I will gladly buy another pair.

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Having the right equipment is worthless unless you know how to use it. That is why the second important element to using multimedia at trial is preparation. I never, ever, ever use anything at trial that I have not practiced with. For PowerPoint, this means doing a complete practice run just as if I was at trial. This starts with unpacking and setting up the equipment from scratch. Then I click through each slide to make sure that they are in the correct order, they all work and that they appear big enough for the jury to see them.

PRACTICE TIP: Text slides and bullet points are not recommended. Juries do not like them.  Use PowerPoint for images (photos and important documents) and video. The jury should be focused on you, your client and the story you are telling, not looking past me to read text on a screen. I only use text slides in two circumstances: showing jury instructions in conjunction with my argument, and showing the verdict sheet as I believe it should be completed.

technology use trialThe preparation for using video is basically the same.  Actually, it may be even more important. If you have a malfunction in your opening statement, you can always ditch the PowerPoint and go old school, Moe Levine-style. Heck, if handled gracefully it might even help you with the jury by humanizing you and showing you are cool under fire. Good lawyers can tell a compelling story with nothing but their words, eyes, and body language. An expert video is different. You can’t toss it aside if it doesn’t work because then all of your medical evidence is gone. You have a huge hole in your case where the expert testimony on medical treatment and causation should have been. Yeah, I guess you could read the testimony into the record if there was really no other option, but that is just awful. Unpersuasive and irritating.

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OK- I am pulling a bit of the ol’ switcheroo here. I know you were probably expecting this installment of my series on trial organization to focus on the trial binder. Relax, that’s coming. I changed topics at the last minute because I recently saw two blog posts that touch on another trial organization issue that I was planning to talk about anyway- using PowerPoint or other multimedia presentations at trial.

The legal field tends to lag far behind the business world in its use of technology. But our jurors live in the modern world. They are accustomed to most presentations being accompanied by digital media or video, and they expect this from trial presentations as well. They expect the technology to work right and they expect us to know how to use it.

trial technology equipmentI often use PowerPoint at trial. It’s more visually impressive than a foam-board blow-up, and I like being able to use the remote to click on images as I speak. I also use video a lot because often it is the only realistic way to present expert medical testimony. Many doctors are unwilling to close down their practice for an afternoon to appear live at trial, and for many cases, the fee they would charge to come live is outside the budget for the case. This leaves only Plan B, which is a de bene esse video deposition to be played at trial.

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In Part I, I talked about how useful a set of portable office supplies can be for staying organized at trial. But that is just a small part of the required level of organization. In this installment, I discuss another vital part of my overall organizational system- the trial box. Keep in mind that I am describing how I organize the typical 2-3 day jury trial. Longer, more complex trials travel in a larger set of boxes that are organized following the same basic outline.

I have a portable file box with wheels that all of my paper materials go in. This is a collapsible plastic box the size of a milk crate with wheels and a handle- the kind you see sales reps and business “road warriors” use. I organize it from front to back using file folders and large Redweld-style folders. Less important or less frequently used items go in the back, more important or often-used items are toward the front.

Starting at the back and moving forward, this is what it contains:

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I’m writing from a hotel in Wicomico County (on Maryland’s Eastern Shore), where I will begin a two-day jury trial tomorrow morning.

Here’s a great tip for staying organized during trials, especially the ones that keep you away from the office for several days. I always bring a set of portable office supplies. I keep them in a black nylon case that fits right inside my laptop bag. Inside I have:

  • A travel-sized stapler
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Earlier this month, I had a three-day jury trial in a car accident case in the Circuit Court for Montgomery County. I tried the case along with the referring lawyer under a Rule 1.5 fee-sharing agreement. Although he is an experienced lawyer, he had never handled a jury trial before because his practice is primarily transactional. He sat second chair, handled a few of the witnesses, and did a great job.

We do this pretty frequently here at M&Z. We encourage our referring lawyers to stay as involved in the cases as they wish. This can range from a straight referral where M&Z has primary responsibility for the case, to a true co-counsel relationship with shared responsibility where we try the case together. I love trying cases with other lawyers, whether it is splitting a trial down the middle with another experienced M&Z trial lawyer or having a less-experienced attorney sit second chair as a learning experience. We had a great time, and our client ended up being very satisfied with the jury’s verdict (which was more than 5 times the last settlement offer of the medical bills only).

Our client was a young woman who had sustained a knee injury in the accident. The defense hired one of the local “usual suspects” to perform a defense medical examination and to give opinion testimony at trial.

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When a driver gets sued for injuring somebody in a car accident, they don’t have to go out and spend their own money hiring a lawyer to defend the case. They call up their car insurance company and tell it that they have been sued. They send in the papers, and the insurance company provides them with a defense attorney.

Sometimes this is an “in-house” insurance defense lawyer, other times it is an outside lawyer selected and paid by the insurance company. Either way, the insurance company picks and pays for the driver’s defense attorney. So what you have is a three-sided (or “tripartite”) relationship- insurance company, defense attorney, and defendant driver.

Whether in-house or outside counsel, the defense lawyer has a paramount ethical duty to act in the best interest of his or her client- the defendant driver. This is true even though the insurance company selected the lawyer, is paying the lawyer’s fee, and controls most of the important decisions in the litigation, including whether to settle and on what terms.

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