George Washington Law Review has published an article titled, appropriately, Against Summary Judgment. The premise of the article is that summary judgment is an archaic procedural device that usurps the role of the jury.

Nonsense. Summary judgment resolves cases that juries should not have to decide because the law bars the claim... or the defense.

I find particularly annoying this premise of the article: summary judgment is bad because most cases that now go to summary judgment would settle early rather than go to trial. In other words, cases that should fail because they have not stated a claim under the law will still settle because the defendant will want to avoid the risks and costs of litigation.

Setting aside offensive summary judgment for a second which is an important tool in a plaintiffs' lawyers arsenal, I'm a personal injury lawyer who would theoretically benefit from such a paradigm shift in jurisprudence. What a great system for personal injury lawyers, right? You get paid on all claims, not just the just claims. Can't get a doctor to support your claim that the injuries from the car accident are related a plaintiff's injuries? Who cares? Let a jury decide or, better yet, try to induce settlement because the defendant does not want - for whatever reason, including litigation costs - to go to trial.

It is a home run with one little victim: justice. It is not fair for defendants to fight claims that are not really legitimate claims because the law does not allow them. If you file a lawsuit and don't have a case the law supports, that claims should be dismissed as quickly as possible. Moreover, it unfairly lessens the settlement value of legitimate claims brought by victims who are both hurt and have a real cause of action under the tort laws that we have agreed upon as a society.

When you think about it, the mirror image of this insanity is caps on non-economic damages. Cases that should not be brought should be dismissed; juries verdicts in meaningful cases should be allowed to stand.

You can find this law review article discussing why summary judgment should be abolished here.

• Sample Motions for Summary Judgment (20 example motions/responses)
• Why Plaintiffs' Lawyers Should Use Summary Judgment More Often (an underutilized tool in personal injury car accident cases)
• Thoughts on Defending Motions for Summary Judgment

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

George Washington Law Review has published an article titled, appropriately, Against Summary Judgment. The premise of the article is that summary judgment is an archaic procedural device that usurps the role of the jury.

Nonsense. Summary judgment resolves cases that juries should not have to decide because the law bars the claim... or the defense.

I find particularly annoying this premise of the article: summary judgment is bad because most cases that now go to summary judgment would settle early rather than go to trial. In other words, cases that should fail because they have not stated a claim under the law will still settle because the defendant will want to avoid the risks and costs of litigation.

Setting aside offensive summary judgment for a second which is an important tool in a plaintiffs' lawyers arsenal, I'm a personal injury lawyer who would theoretically benefit from such a paradigm shift in jurisprudence. What a great system for personal injury lawyers, right? You get paid on all claims, not just the just claims. Can't get a doctor to support your claim that the injuries from the car accident are related a plaintiff's injuries? Who cares? Let a jury decide or, better yet, try to induce settlement because the defendant does not want - for whatever reason, including litigation costs - to go to trial.

It is a home run with one little victim: justice. It is not fair for defendants to fight claims that are not really legitimate claims because the law does not allow them. If you file a lawsuit and don't have a case the law supports, that claims should be dismissed as quickly as possible. Moreover, it unfairly lessens the settlement value of legitimate claims brought by victims who are both hurt and have a real cause of action under the tort laws that we have agreed upon as a society.

When you think about it, the mirror image of this insanity is caps on non-economic damages. Cases that should not be brought should be dismissed; juries verdicts in meaningful cases should be allowed to stand.

You can find this law review article discussing why summary judgment should be abolished here.

• Sample Motions for Summary Judgment (20 example motions/responses)
• Why Plaintiffs' Lawyers Should Use Summary Judgment More Often (an underutilized tool in personal injury car accident cases)
• Thoughts on Defending Motions for Summary Judgment

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

I spend a lot of time responding to random questions from other lawyers, in part due to the fact that the Maryland Injury Lawyer Blog has a decent following. I'm going to start publishing some of the responses to the extent they are helpful to anyone else. The topic for today is the practical ramifications of requests for admission that are deemed to be admitted at trial.

Reader's Question: The federal and many Civ Pro rules deem admissions admitted if not responded to within 30 days. Here is the scenario: the court rules the party was dilatory in responding and the admissions are deemed admitted. However, the party did respond to ROGS in time, as you expect some of the answers are clearly incompatible with deemed admitted admissions. Trial time -- if your read into the record the answer to the admitted admission doesn't the witness have the right to respond no that's incorrect these admissions were deemed admitted by the court they do not reflect the facts accurately, or no that's incorrect as I stated in my ROG answers the correct answer is . . . . or will the court not allow the witness to rebut the admitted admission even though a fact finder would see that the admitted admission is actually factually wrong (i.e. admission states that on the day the car you were driving was white however one that day you were driving your own car which was blue but the admission deemed admitted would "force" you to accede to it being white)?? Would the admitted admission be treated akin to a comment made during a depo and can be used during trial to question the veracity of the witness?

Fundamentally I'm wondering about the awkward reality of admissions deemed entered by failing to timely file a response and the fact that the deemed admissions are factually incorrect -- would a court countenance allowing a case to be won or lost based on the dubious truth of admissions deemed admitted simply because the rules require the admission to be admitted.

My Response: I've never met anyone who has ever tried that case. Because either (1) the case settles because the admitting party panics or (2) the court lets the admitting party off the mat. But, fundamentally, the rule would have no meaning if the Defendant could do what you suggest. What would be the point, Judge, of having the rule if enforcement of it allowed Defendants to wiggle out by disagreeing with themselves elsewhere? You can't create a contradiction in your own discovery responses and argue the one you like best. Therefore, the remedy should be the admitting party should be estopped from making any contention that contradicts the request for admission. That's your argument.I have settled cases using failure to respond to RFA. Not 31 days kinda failing to respond, more of the letters of the "Hey, these things are going to be deemed admitted if you don't answer and you still get no answer" variety. There is Maryland law that says in this case, enough is enough and they are deemed admitted. Good luck! - Ron Miller

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

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases

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

Religion and Scripture is the subject of one of the most compelling chapters in Reptile, a book offering a guide for plaintiffs’ lawyers on trying personal injury cases. The lessons offered in the book have made a meteoric rise from novel theories to conventional wisdom by most experienced personal injury lawyers. You don’t have to blindly accept every premise in the book but if you are handling product liability, accident, malpractice or any other kind of tort cases – even if you are a defense lawyer – you need to buy this book.

The premise is simple: most of us believe in God and view the world from the lens of faith. This is obviously true for people who wear their religion on their sleeve. (Not saying that is a bad thing but you know what I mean.) But the rules of Scripture, according to the Reptile authors, command authority as the “ultimate rules” for not only the faithful but the agnostic and even atheists. The Bible is loaded with stories and parables that apply to every situation where justice is being sought. Here are a few of the plaintiffs’ theme direct quote suggestions:

• "Do not follow the crowd in doing wrong. When you give testimony in a lawsuit, do not pervert justice by siding with the crowd." (Exodus 23:2)
• "Do not deny justice to your poor people in their lawsuits." (Exodus 23:6)
• "Truthful lips endure forever but a lying tongue lasts only a moment." (Proverbs 12:19)

The first question is whether or not this is admissible and whether you are going to offend the sensibilities of the court. I don't think this is an impediment. Argument is argument and Scripture is history like any other history and can be used to make an argument. I see no difference in quoting the Bible than I do in making an American Revolution or Civil War reference, in closing.

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

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

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

I'm pleased to report that our own John Bratt won two consolidated cases in the Maryland Court of Appeals today. The decision really goes to the core of the question as to what kinds of financial information from professional expert witnesses is discoverable. One of the cases has already gone to verdict; the other is a serious brain injury case where our ability to cross examine Defendant's expert on bias is going to be extremely important.

I would summarize the case but I suspect John can provide the best summary on his Baltimore Injury Lawyer Blog. When he posts his summary, I will alert Maryland Injury Lawyer Blog readers. (It is worth adding John's blog to your RSS feed if you have not already done so.)

You can find the Maryland Court of Appeals opinion here.

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

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had reached a settlement after filing a lawsuit against her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband were separated but before they were divorced and the lawyer spouse wanted all of the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution. Pain and suffering damages are not marital property.

This is an easy enough rule to formulate but there is a problem in its application. Personal injury settlements do not allocate between economic and non-economic damages. This issue is one that personal injury lawyers frequently tackle in a variety of contexts, most notably, in dealing with medical liens. How much of the settlement was for medical bills? The insurance company does not (and cannot) delineate.

The Maryland rule the court underscored in Murray is that it is for the finder of fact to determine how the settlement should be apportioned. Interestingly, the trial court rebuked the Montgomery County trial judge who found that the husband in this case did not prove any of the property at issue should be classified as martial property:

In its Opinion and Order, the court found that the settlement agreement did not “delineate what the $550,000 represents, other than a settlement.” Ironically, it blamed [Defendant] for failing to carry his “burden to identify and value the [proceeds] he seeks to classify as marital,” concluding “there simply is no credible evidence from which the court can conclude that this sum is marital.” [Defendant] complains that his cross-examination into the status of the settlement funds was unduly restricted. We agree.

The take home message for Maryland personal injury lawyers advising clients is that you cannot give them a definitive answer as to how much their spouse will get out of their settlement. But you can tell them that the spouse gets half of any part of a settlement that is determined to be for (1) present or future lost wages that were incurred during the marriage, (2) medical bills, and (3) joint loss of consortium. The plaintiff spouse does get to keep their own pain and suffering damages, which should be the largest portion of most personal injury settlements. How to apportion what part of a settlement falls into what category is a subject of argument until it gets to a finder of fact who is required to engage in the difficult task of apportioning the settlement.

You can find the full case here.

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

Beth Osowski provides a nice list of trial themes for plaintiffs and defendants' lawyers in the Civil Litigation Blog.

This is not a bad list to gloss over before trial if you are not crystal clear on what your trial theme(s) should be. I like that these themes are short and simple. If you can't describe your claim (or defense) in 5 words or less, it is going to be hard to get it across to a jury. From the plaintiffs' perspective, as David Ball and Don Keenan explain in Reptile, the best themes show the defendant's actions constitute an immediate threat to public safety and that a significant verdict for the plaintiff will reduce that danger.

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

John Bratt's Baltimore Injury Lawyer Blog offers advice on defending motions for summary judgment.

You can find sample oppositions to motions for summary judgment here.

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