By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

Recreational activity torts, the stepchild of personal injury cases, appear to be making a minor comeback. The Supreme Judicial Court in Massachusetts reversed a trial court's order of summary judgment in a case involving a woman hit by a ball from twenty feet away during an outdoor party. The issue on appeal is whether the party's hosts had a duty to stop a softball game that a reasonable prudent person would know posed risks to guests.

The softball game itself was not really a softball game, just people goofing around. Random people were just taking turns hitting the ball. In fact, participants were told to bunt or swing down on the ball. It was a party, I'm sure alcohol was probably involved, and some people probably took good swings and hit the ball well. One of those good swings landed close to the Plaintiff and another hit her, causing the injuries that gave rise to the lawsuit.

The court reversed the trial court's entry of summary judgment, finding that §318 of the Restatement (Second) of Torts did not absolve the homeowner as a matter of law:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and

(b) knows or should know of the necessity and opportunity for exercising such control."

I am a personal injury lawyer. Having chosen this profession, particularly after being a defense lawyer, it is not surprising that I lean towards plaintiffs on issues where reasonable minds differ. But I am mindful of imposing liability at parties when people are playing games involving risks that are open and obvious to everyone. The dissenting opinion in this case articulates this concern:

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

Fans of the Maryland cap on non-economic damages scored a landslide win in front of the Maryland high court today. The court affirmed the constitutionality of the cap in DRD v. Freed, calling it "embedded in the bedrock of Maryland law" during its 17 year run.

There is lots more to say about this opinion but I do not think it is going to happen first thing Monday morning.

• More on the underlying facts
• Maryland Non-economic damage cap (in non-malpractice cases)
• Connor Cares Foundation

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

An Ohio lawyer has been suspended for two year years suspension for submitting “false and fraudulent” time sheets. Theoretically possible for the workaholic? Sure. But three of her bills reflecting more than 24 hours of work in one day, once billing 90.3 hours of work during a 96 hour period. In another, she billed 139.5 hours of work during a 144 hour period.

Although the number of lawyers who pad their bills is probably on the downside in 2010 as more companies are looking for more ways to trim legal budget fat, lawyers who bill by the hour have been padding their bills since Emperor Claudius lifted the ban on lawyers billing more than 2,000 years ago. Little known fact: Abraham Lincoln was a notorious bill padder, sometimes charging clients five times the number of hours taken to complete the task. There was scores of client complaints about Lincoln about his billing. (Before you pass this information along, consider the possibility that I'm completely making this up.)

Anyway, while most lawyers don't, the fact that one lawyer was caught ridiculously padding her bills in not actually a Page 1 story. But I found the defense to the crime particularly interesting: it was the the law school's failure to teach law firm management.

The first reason why this is so ridiculous is obvious. As Carolyn Elefant points out, if you can't figure out that you are not allowed to bill more than 24 hours in a day, a law school class is not going to set you straight.

But, in my opinion, the whole idea of Law Firm Management as a course is an exercise in futility. You have make believe lawyers pretend to run a make believe law firm with make believe problems. Students just are not going to really digest the problem. It is like suggesting the guy that won your fantasy football league three years in a row would make a great general manager.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

What do the players in the World Series of Poker have in common with jurors? Poker faces. Unless you really (really, really) have a jury, they usually don't give that many tells.

Of course, now we have a cheat sheet with Facebook. Apparently, a Michigan juror pronounced a criminal defendant guilty while the trial was still, ah, ongoing. Everyone is so enamored with social media and its intersection with how it impacts jurors and lawsuits, so these stories make big news. But just how many times has this happened where it never leaked out? I'm pretty sure I could confess to a felony on Facebook and no one would really be paying that much attention.

While we are talking about Facebook, please join our Miller & Zois fan page.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

We have a big race in Anne Arundel County for Circuit Court that is getting surprisingly little attention in the media. Alison Asti is challenging sitting Circuit Court Judges Laura Kiessling and Ronald Jarashow.

The problem with this election is that most people - I think most people - make a reasonably informed vote when voting for president, Congress, state legislatures and other elected offices in this Country. But I don't think the majority of people, even Anne Arundel County lawyers, are in a position to make an informed call on judges. Our law firm tries a lot of personal injury cases and we have not tried a case in front of either Judge Kiessling or Judge Jarashow. So there are probably 11 lawyers in Maryland who are in a position to have been in front of these judges and know Ms. Asti well enough to thin slice who would be the best judge. And I wouldn't even defer to those 11 people.

What are the issues in the campaign? No one is suggesting the other side is not qualified to be a judge. (Actually, I'm making that part up because it makes my argument flow better. I think proponents of the sitting judges have argued that while Ms. Asti may be a fine lawyer, you need to have been a trial lawyer to be an effective judge. I'm not unmindful of this point. Having supported Justice Kagan, I feel a little hypocritical suggesting drawing the line between an appellate judge and a trial judge for who needs to have been a trial lawyer.)

Assuming all of the candidates are qualified, what are we deciding in this election? Who would be the fairest of the fair? How do you debate that? And if you can't have a debate, should you have an election? But we have one. So I think the best rule for voting in judicial elections is to vote for the incumbent judges unless you have a compelling reason not to do so. Important point: compelling should not be defined as a sentence you did not like in a criminal case when you really do not even know the facts of the case, how the witness presented, and so forth.

Anyway, the sitting judges are good judges and good people by reputation. Judge Kiessling and Judge Jarashow both made it past the Anne Arundel County Judicial Nominating Commission and were nominated by Governor O'Malley. Even Bob Ehrlich would admit under sodium pentothal that Governor O'Malley has been apolitical in the judicial nomination process and has appointed good judges to the bench. The Republicans in the Maryland Senate have certainly thought so. (Dear Republicans: It is okay to concede your opponent has not been awful at everything. It actually enhances your credibility. I promise.)

It is not that I do not think Ms. Asti would not make a good judge. I also do not oppose her right to run. She is availing herself to the political process that is currently in place (even if I disagree with the premise of electing judges). But she has not suggested a reason why these well thought of judges should be removed from the bench and I think that is because there isn't one.

Accordingly, my law firm made a donation yesterday to the campaign of the sitting judges Laura Kiessling and Ronald Jarashow. More importantly, they have earned the highly sought after, much anticipated and ballyhooed Maryland Injury Lawyer Blog endorsement.

• Post from 2006 on why I disagree with judicial elections in Maryland
• Sitting judges Facebook page
• Allison Asti's election Facebook page
• Washington Post editorial from February on why contested elections in Maryland are a bad idea
• Testimony to the Maryland Senate on judicial elections

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

The Tennessee Titans have filed a lawsuit against University of Southern California and coach Lane Kiffin for "maliciously" luring away assistant running backs coach Kennedy Pola. The lawsuit claims the hire disrupted planning and "potential loss of confidence by players."

The first complex legal question here is clear: do you really need an assistant running back coach? Wait, that's not a legal question. Okay, how was it "malicious"? Was the purpose of the hire to destroy the Titans by hiring their assistant running back coach? What if they had gone after their head running back coach? Can you imagine the inhumanity?

Look, we all get it. Lane Kiffin is doing a lot of things to damage his reputation. But what kind of message do you send when you file a lawsuit - against a university - for hiring a coach when the real thing you are mad about is that Kiffin did not "ask" for permission to hire the coach?

I complained last week about how celebrity lawsuits distort the public's perception of what personal injury lawyers do. All these lawyers want to do, the public complains, is sue people. Actually, the goal is to reach a settlement before filing a lawsuit. How much effort did the Tennessee Titans make to settle this lawsuit. They filed a lawsuit about 20 minutes after they felt aggrieved.

Off the top of my head, I have no idea who the owner of the Titans is. But would you be surprised if he had the pro big business view that trial lawyers are destroying America? I don't know that this is his view, but let's pretend that it is for a minute because it would surprise no one. (I remember him giving the fans the finger last year. So anything is possible.)

My point, by now, is obvious: everyone hates what lawyers do until they feel like they have been wronged. But I think it is crazy to be pro-plaintiff or pro-defendant. Every individual case should be judged on the merits and the totality of the circumstances.

Here, unless there are facts we don't understand - which I concede is entirely possible although unlikely - this case by the Titans against USC is just ridiculous. Not every wrong should be remedied by a lawsuit.

Also, the Titans should do their fans a favor. Any player who has "lost confidence" as a result of the loss of the assistant running back coach should be cut immediately. I don't care if his name is Chris Johnson. Cut him.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

Serious personal injury clients in accident and malpractice cases often understandable get put behind the 8 ball in their personal finances. This means every now and again I find myself dealing with a collection lawyer.

The New York Times takes an honest look at the practice of debt collection. Apparently, and you see this from a few hospitals in Maryland, debt collecting attorneys have decided the best way to collect on a debt is to put the case in suit, a practice that is wreaking havoc on the courts because the volume of computer generated complaints is so high.

The other problem in dealing with debt collecting lawyers, as the article points out, is that many practice law like they are running a factory. You ever try playing phone tag with a debt collection lawyer? It is awful. The lawyer I was calling had no way to get a live receptionist and, incredibly, his message said if we don't call you back, call us again. Another tactic to get the general public feeling cozy about lawyers, I guess. Moreover, professional courtesy seems to take a backseat. These lawyers tend to put calls from personal injury lawyers behind random cold calls in the call back food chain.

Believe me, I know I'm overgeneralizing. And I also understand the importance of having legal mechanisms available to support those collecting debts. The "Man", as John Bratt's refers to big business in his blog post earlier this week, has just as much right to the judicial system as the little guy does. But I think we need to make sure that the consumer is getting adequate protection under the law, too. As the article points out, many of these debt claims are brought without any meaningful proof of a debt but the consumer and the consumer does not have the resources or the sophistication to challenge the creditors claim.

I don't provide any answers today, I'm just point out the problem. Tomorrow's post will try to solve many of the world's problems, I'm sure.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

I wrote earlier today about my concerns about celebrity lawsuits and how they distort the public perception of merits of a typical personal injury case and of lawyers generally.

By coincidence, Jay Hancock underscores this problem in the Baltimore Sun today, poking more than a little fun at a Maryland law firm that sent out a "look who I sued" press release that ended up sounding like a press release for the musician the law firm was suing (Ne-Yo).

There is another moral to this story: if you are going to put yourself out there, think about how you are doing it. Did anyone at this firm read this press release before it went out? Now, if you Google the law firm which, by all accounts is a fine law firm, you get this article third. That's not good PR.

(I'm not naming the firm because I don't want this blog post to be on the list.)

• John Bratt's commentary

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

Since the Supreme Court found in 1977 in Bates v. State Bar of Arizona that lawyers have a right to advertise on the grounds of the public has a right to information from lawyers, the general public has been accustomed to awful commercials from lawyers, mostly personal injury accident lawyers replete with sirens and crashing cars.

Still, relatively few lawyers had the resources to put on television commercials. Almost all were personal injury lawyers because the numbers just didn't work for domestic or criminal lawyers because there is no possibility of a large payday in those cases. The malpractice and accident lawyers that were advertising on television were making a substantial investment in branding their law firm.

So awfulness of personal injury lawyer commercials was regulated more by fundamental economics than the ABA Model Rules of Professional Conduct. Advertising lawyers did not risk their investment and their brand by going too far over the top.

Then came YouTube. Now every lawyer with a camera has an opportunity to put their television commercial into the stream of commerce. Unlike the marketing titans, they have no reputation to lose. So it is the wild west.

Overlawyered provides an embedded link today to one of the worst. It is not a personal injury lawyer but a domestic lawyer ad. It is like a Saturday Night Live sketch you and I would put together on the fly if we were trying to mock lawyer advertisements.

Every time one of these videos gets made, a tort reform cadet gets his wings.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

By Maryland Injury Lawyer Blog, Maryland Injury Lawyer Blog.

The U.S. Third Circuit Court of Appeals dismissed a ridiculous lawsuit against the New England Patriots and Bill Belichick by a season ticket holder/lawyer who brought a lawsuit on behalf of "all Jets fans" who had bought tickets to Jets-Patriots games in New Jersey during Belichick's tenure.

The basis for the suit? The Patriots/Belichick's conduct during the infamous Spygate game between the Patriots and the New York Jets in September 2007 where the Patriots coaches were caught using a video camera to steal the Jets signals.

The court found that the Plaintiffs possessed "nothing more than a contractual right to a seat from which to watch an NFL game between the Jets and the Patriots...."

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.