Contributory negligence is about as dead of an idea as communism. Maryland is one of five jurisdictions in the United States (along with Virginia, Washington D.C., Alabama, and North Carolina) that have maintained this antiquated notion that being 1% at fault for your own injuries should be a bar to your claim. It is pretty much intellectually indefensible, really.

One big impediment of changing this law in Maryland is a powerful plaintiffs' lawyer. I will not name this lawyer. (One small hint: he owns a baseball team, has more money than everyone reading this blog post combined, and recently donated a truckload of money again to the University of Baltimore School of Law.)

Why would any plaintiffs' lawyer oppose comparative negligence? The reason is simple: when this issue gets brought up in the Maryland legislature, a legislator always says something to the effect of, "This is not a bad idea. But certainly joint and several liability is a bad idea, too. How about we get rid of both contributory negligence and joint and several liability?" Some states have done exactly this. Other states, like Maryland, have allowed defendants to make contribution claims to try to reduce the claim of inequity that one defendant should bear the entire loss for an accident that was caused by more than one party.

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

Good morning, Judge Asti. My name is Joe Smith. I represent the Plaintiff in this case. I'm here seeking that this Honorable Court use its discretion to.....Oh, you remember me, Judge? Yes, I was big into Judge Jarashow's campaign. Yes, you might recall, I said some awful things about you. Sorry. Anyway, my client is.....

Many Anne Arundel County trial lawyers stood up to support Judge Laura S. Kiessling and Judge Ronald Jarashow's campaigns against Alison Asti. Interestingly, this effort continued long after it became quite obvious to everyone that Asti was going to win. Our firm was a co-sponsor of one of the last fundraisers for the sitting judges. But we were never anti Alison Asti. You can go back through the numerous blogs posts I have written and there is nothing critical about Judge Asti. I never even pointed out that she went to Duke. (She went to law school at Maryland so maybe it is a wash. Maybe.) In fact, I said I bet she will make a good judge in spite of her lack of trial experience just like I think Justice Kagan will be an effective justice.

(Actually, read through this blog. I really don't have bad things to say about anyone. I just criticize positions. There were absolutely no issues in this campaign from any of the candidates. Which is a part of the problem with judicial elections)

Still, I don't regret that our firm supported the sitting judges and I still wish Judge Jarashow had won. The Maryland State Bar Association is with me too, supporting all of the sitting judges out of principle. I think judicial elections are like the election for homecoming king in high school with good looks and athletic prowess replaced by political savvy, great organizational skills, and having a name that is not alphabetically challenged. It is the wrong way to pick a judge. In fact, I would support a less qualified sitting judge over a more qualified challenger. It is like stare decisis. I think that the strong rebuttable presumption should rest with the sitting judges. By all accounts, Judge Jarashow did not need any rebuttable presumption: it was clear he was eminently qualified for the job.

Now we come to a reason heretofore unmentioned in my many rants against judicial elections: hard feelings. Lawyers that took real shots at soon-to-be Judge Asti are now going to appear in front of her. So will lawyers like me who supported the sitting judges. Without flattering myself, I would be surprised if Alison Asti has not seen my blog posts on the election. My posts have ranked pretty high on the search engines. I really doubt she will hold this against me or my law firm (and, hey, we are even LinkedIn friends from long before this campaign started). But some trial lawyers made some pretty harsh comments about Asti's qualifications. Those lawyers can't be excited about going in front of Judge Asti and asking for her to use her discretion in favor of their client. I don't think she will really hold it against anyone's clients. But, then again, human beings are human beings.

In judicial elections generally, I think there are more likely to be hard feelings because judges are probably more like the rest of us than politicians. A career politician like Harry Reid, you could insult his entire family and he would probably be as equally willing to work with you after the election as he was before. "It is all in the game," as Omar Little used to say on The Wire. President Obama warmly hugs and campaigns for Governor O'Malley even though he was an ardent supporter of Hillary Clinton in the primaries. But for judges, it is not all in the game because they are not in the game. They just want to be a judge. Accordingly, I suspect that many of them remember who was strongly for or against them. Mark this down to reason #9,308 why judicial elections are a bad idea.

• Anne Arundel County Judicial Election Results from Tuesday
• Overview of the Race and My Position
• Personal injury cases in Anne Arundel County

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

The Maryland Court of Appeals has signed off on some modifications to the Maryland Rules. Of particular interest to both lawyers and clients is new Maryland Rule 16-110. This new rule addresses the crucial issue of our day of whether you can bring a cell phone into court in Maryland. The short answer is yes. The long answer can be found here on page 18.

The rule also addresses the question of whether jurors may bring electronic devices into the jury deliberation room. The concern, of course, is whether the jurors use Google to find information to decide the case or give a shout out to friends on Twitter or Facebook about the case during deliberations. The new rule is clear that jurors may not take cell phones or other electronic devices into the room during deliberations.

I also thought it was interesting that the new rule states that there is no liability to security or court personnel who lose or damage someone's phone, presumably after the phone is confiscated. It is a little thing and I doubt that many phones, if any, are going to be lost or damaged under these circumstances. But, as a matter of principle and policy, I wonder if the Maryland Rules should be limiting tort liability. My view is that while the Maryland high court may rule the roost of what goes on in Maryland courtrooms, courthouses are not sovereign and tort immunities should not be granted so casually.

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

Earlier this month, I wrote a blog post about Vermont Senator Patrick Leahy's proposal to allow retired Supreme Court justices to hear cases to avoid 4-4 splits in conflict situations, an issue that is getting attention because of the conflicts that Justice Kagan has for many pending cases.

The Maryland Court of Appeals has been doing this effectively for years, I wrote in the blog post. But while writing a blog post today on underinsured motorist lawsuits involving State Farm, I took a look at the Maurer v. Penn National opinion from the court in 2007. I noticed something in the opinion: four of the judges were retired when the opinion was issued. We all follow Maurer as the law but only two of the seven judges currently on the court - Judge Greene and Judge Harrell - participated in this opinion that is not yet three years old.

For those of you who are not lawyers, stare decisis is doctrine the Maryland Court of Appeals has applied with vigor: following prior court decisions unless there are very compelling circumstances. It means that a prior ruling being "wrong" is not alone grounds for reversal. I think every court in the country relies on this doctrine, to varying degrees.

So I think it may be a concern that decisions are made by a revolving door of judges when the court relies so heavily on stare decisis. Admittedly, "revolving door" is a little hyperbolic but if judges are restrained by stare decisis - a point this court repeatedly makes, calling a 17 year-old law "embedded in the bedrock of Maryland law " - should there be concern?

I Googled this theory before posting this and I have never found anyone who has ever raised this concern in Maryland or in any other court. I'm not really bold enough to suggest a change in the current process because I don't pretend to be an appellate scholar. I'm just throwing it out there because I have it on good authority that Judge Bell and many other Maryland Court of Appeals judges read this blog on a daily basis. (Okay, not really.)

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

The Maryland Court of Special Appeals interpreted a mandatory fee dispute arbitration requirement for attorney fee disputes in the District of Columbia today.

The issue is whether a personal injury law firm was entitled to 40% of Plaintiff's recovery or whether the fee increased to 50% because the "Plaintiff prevailed on appeal" clause in the retainer agreement had been triggered. The underlying claim arose from Plaintiff's injuries which occurred while Plaintiff was being rescued from a broken elevator at the Marriott Wardman Park Hotel in Washington, D.C. I suspect both the Plaintiff and the Plaintiff's lawyer were Maryland residents which triggered Maryland's involvement in the case.

I'm interested in these cases because it is always interesting to see the fee agreements of other lawyers. We have had a nice little run of appellate victories of late and it would have been nice to increase our fee agreement on those cases. Our client fee agreement specifically does not include appeals in our 40% fee. But when we have won appeals, we have stuck to the 40% fee anyway, probably as a Pavlovian reflex that 40% is what is appropriate after a lawsuit has been filed.

Otherwise, this case is not of much use to Maryland personal injury lawyers because it involves mandatory fee arbitration for cases handled in Washington D.C. The court steadfastly applied D.C. law. The only real take home message is one that the Maryland Court of Appeals has already made clear: the court believes there is a strong legislative policy in Maryland favoring enforcement of arbitration agreements.

You can find the opinion here.

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

Senator Patrick Leahy proposed a new law that would allow a retired Supreme Court justice to pinch hit if a justice recuses himself or herself from a case. The idea, of course, is that it would lead to less 4-4 rulings in which case the lower court ruling stands.

The Maryland Court of Appeals has been doing this effectively for years. I think it is a bad idea for the Supreme Court. First, the Supreme Court is - to the chagrin of many - a highly political body. This makes sense because the issues that go to the Court are the tough issues of our time and judges tend to go with their philosophical point of view. Most judges agree on the basics. It is the nail biters that go to the Supreme Court. These nail biters split so often along ideological lines, with the four conservatives pitted against the four liberals, leaving Justice Kennedy in control of the critical issues of our day.

That balance - albeit a bizarre balance - is a delicate one. So, naturally, the decision as to who to pull out of retirement is going to be a big one. Does the president make the choice? Does the Chief Justice make the call? (I'm not sure but I think Judge Bell makes the call in Maryland as to who to call up.) It would just make the court more overtly political at a time when it would be nice to be able to downplay what a political body the court really is.

Moreover, I like retired Supreme Court justices being able to write books and speak their minds with impunity after they retire. Calling them back is going to detract from that.

A 4-4 vote is not a good thing but it is not exactly a tragedy either. We have been doing it this way for well over 200 years. My vote: let's leave things as they are.

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

There is a verdict in Metro Verdicts Monthly in Prince George’s County that I’m amazed has received no media coverage. The Plaintiff, a 17 year old baseball pitcher, received a $52,703 verdict for the right arm fracture he suffered while throwing a pitch in a baseball game.

Two questions come to mind: who would you sue and what would be the cause of action? Apparently, Plaintiff’s lawyer found answers to both of these questions. The jury found that the tournament organizer, Baseball Players Association, built the pitcher’s mound too big and too deep.

Defendants argued what you would expect them to argue: the mound was fine, the plaintiff just threw the ball really hard and these things happen. Defendant’s lawyer apparently also argued that there was no proof that Plaintiff had, as he claimed, a scholarship offer at Delaware Tech and that he failed to follow his doctor's orders for rehabilitation.

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

The election result in the Anne Arundel County judicial race is still apparently too close to call. In this goofy process, all three candidates are on the ballot for both parties in the primary with the top two advancing from each party. So, theoretically, all three can advance to the general election. Here is what we do know:

Let's assume that Judge Jarashow can advance and the candidates are merged together for the election in November. The merged vote count from the primary:

Kiessling: 44,263

Asti: 35,172

Jarashow: 30,197

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

Hometown Annapolis has a good editorial on the details of the upcoming election between judges Ronald Jarashow and Laura Kiessling and Alison Asti. The editorial voices a similar sentiment to the one I expressed here last week, endorsing Jarashow and Kiessling. The editorial also underscores the insanity of the process we employ to elect trial judges. Even if you believe trial judges should be elected, you simply cannot believe that the primary/general election system we have in Maryland for judicial elections makes any logical sense.

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

The Maryland State Bar Association Newsletter reports that Maryland's judicial electronic case management system will be up and running in Anne Arundel County in 2012 and throughout the state by 2015. This system sounds like it will be much like the system used in the federal court system. The expected cost to bring this e-filing system to fruition is expected to exceed $50 million.

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