Here is an article about a recent opinion of the Georgia Supreme Court (that state's equivalent to the Court of Appeals of Maryland) that uphold "tort reform" laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of "tort reform" laws.

The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove "gross negligence" by "clear and convincing" evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

First, it raises the standard of proof from a "more likely than not" standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to "gross negligence", which means a failure to exercise even a slight degree of care.

I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it's all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor's malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.

The Georgia court determined that the legislature's goal of making physicians' malpractice insurance more affordable was a "legitimate legislative purpose." This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.

This rule allows a Georgia ER doctor to to walk up to a family and say something like "I am really sorry. I messed up because I just wasn't paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead." Under Georgia's standard, that doctor is probably not liable for malpractice. If you can't tell what is wrong with that, you have my pity.

I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don't intentionally hurt you.

There is a seat open on the District Court of Maryland for Baltimore County, due to the retirement of the Hon. Edward P. Murphy. There are, seriously, 30(!!) applicants. The list of hopefuls is as follows:

Jennifer Buran Aist
Kimberly Smalkin Barranco
Alfred Lawrence Brennan, Jr.
Harold Lee Burgin
Alan Royce Lee Bussard
Colleen Ann Cavanaugh
Emmet Christopher Davitt
Lisa Fox Dever
Julie Lynn Glass
Alberto Joseph Halphen
Michael Benjamin Hamburg
Louis Nathan Hurwitz
Neal Marcellas Janey, Jr.
Laura Courtenay Jenifer
Justin James King
Ari Jason Kodeck
Steven I. Kroll
James Kevin MacAlister
Kevin Paul Murphy
Deborah M. Ramsey
Marsha Lynette Russell
Leo Ryan, Jr.
Katherine Turnbull Sampson
Lisa Yvette Settles
Howard Carl Sigler
Charles Edward Sydnor, III
Kimberly Michelle Thomas
Robert Harold Wolf
Steven Donald Wyman
Wendy Anne Zerwitz

Unsurpisingly, I know some of the lawyers on this list. Not because I have some special insight, but simply because I think you could take a list of 30 Baltimore County lawyers chosen at random and I would know at least a few of them. Harold Burgin is an insurance defense attorney practicing in Towson, whom I deal with regularly. James McAlister is a talented appellate lawyer and a fellow board member of the Maryland Association for Justice. And taking a ride in the wayback machine, Katherine Turnbull Sampson is an old and dear friend of mine since my St. Mary's College of Maryland days, who has served as a public defender and is presently a prosecutor in Baltimore County.

I think any of these folks would make a great judge. I will certainly keep an eye out to see which of the applicants make it on the list that the Trial Courts Nominating Commission will send to the Governor.

Many young lawyers are lucky enough to secure a position as a judicial law clerk between law school and beginning to practice. Appellate clerkships are generally considered the most desirable. The main reason that young lawyers want these positions is because they gain valuable experience by working with a sitting judge every day, learning the best ways to persuade a court. Perhaps even more importantly, they also learn what not to do by observing the mistakes made by the lawyers before the court.

Virginia appellate lawyer Jay O’Keefe has been running an occasional feature on his blog with practice tips from a recent judicial clerk from the Supreme Court of Virginia.

Even though I only handle appeals in Maryland state and federal courts, these tips apply to handling appeals in just about every jurisdiction.

For example, there is a tip about the placement and structure of arguments within the brief. Essentially, the advice is to lead with your strongest, most appealing arguments.

I intend to follow this recurring feature in Jay’s blog. I’m sure it will feature lots more helpful tips.

Today is February 23. If you were wondering if any Maryland physicians were disciplined or sanctioned during the month of January, keep wondering. Because the Maryland Board of Physicians has not posted that information to its website even though we are four weeks into the next month.

I don't know about you, but I would like to know if my doctor was subjected to discipline in January.

Last week I spent three days trying a car accident case in the Circuit Court for Charles County. There were two defendants- the driver who caused the accident, and my client's insurance carrier. There was a direct suit against the insurance carrier because the defendant driver had the minimum insurance permitted in Maryland (20k per person, 40k per incident), and we alleged that the plaintiff's damages exceeded the defendant's policy limit. So we brought in my client's insurance company as a defendant, because there were underinsured motorists' benefits available to cover the damages that exceeded the defendant driver's policy.

When you are litigating against the tortfeasor and the UM/UIM carrier, there are two legal issues you should expect to address before the trial begins.

First, it is a near-certainty that the insurance company will make a motion to allow it to try the case without being identified to the jury. This makes sense from their perspective, because they do not want the jury to know that any damages will be paid by an insurance company, or that the Plaintiff was forced to sue his own insurer.

The only problem is that Maryland law on this issue is exactly the opposite. There is a 2004 case from the Court of Special Appeals of Maryland that is directly on point. It is called King v. State Farm. When the insurance company is a party to the lawsuit, it may not remain anonymous. The insurance company may be identified to the jury, and the jury may be told why the carrier is a party to the case. I keep a copy of this case in my desk drawer, and bring it to court whenever I am trying a UM/UIM case. Normally, once this controlling authority is presented to the trial court, the insurance compnay's motion to stay anonymous is quickly denied.

The second legal issue is that when it comes time for jury selection, the two defendants will ask the court to award them each separate peremptory challenges. In a civil jury trial in Maryland, generally each side gets 4 peremptory challenges, plus one for the alternate juror. What typically happens is that the tortfeasor and the UM/UIM carrier ask to be awarded separate sets of peremptory challenges. This would be bad for the Plaintiff, since it would give the defendants twice as much control over the makeup of the jury.

All Maryland personal injury lawyers who handle these kinds of cases need to know about Md. Rule 2-512(e). Under the rule, joint defendants are considered to be a single party for the purposes of awarding peremptory challenges unless the trial judge determines that there are "adverse or hostile interests" between the defendants AND that the nature of those interests justifies granting them separate peremptory challenges. In a typical UM/UIM case, separate strikes should not be granted because the two defendants have identical interests with respect to the plaintiff- defending on liability and damages. Even where tehre is a cross-claim between the defendants, normally their interest against the plaintiff will be identical, and therefore they should share a single set of challenges. See Kloetzi v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985).

So before you head to court to try a UM/UIM case, always be ready to address these two issues. If you try a lot of car accident cases, I recommend doing what I do. I keep the authority on these two issues in a folder in my file cabinet, and bring it with me for all of my UM/UIM trials. Since the law is generally favorable to Plaintiffs on these points, it is nearly malpractice to be unprepared to present it to the court.

The process of selecting and retaining (or not) judges in Maryland has recently become a bit on the controversial side. Ron Miller recently wrote about how he thinks contested judicial elections are about the dumbest way imaginable to pick judges. This has been news in the leagl community, in part because of an article written by retired Baltimore County Circuit Court Judge Dana Levitz that appeared in the University of Baltimore Law Forum. Judge Levitz was sharply critical of the current process to the extent that it requires judges who are supposed to be unbiased and impartial to run in contested political elections.

The way the judicial selection process works in Maryland is that there are judicial nominating commissions for both appellate and trial courts. These comissions are made up of people selected by the Governor and elected by the state bar.

Individuals who wish to apply for judgeships are vetted and interviewed by the members of the applicable nominating comission. Those determined to be qualified become members of a pool whose names are submitted to the Governor to be considered for appointment to the bench. Once the Governor makes the appointment and the judge is sworn in, the new judge must run for retention in the next general election. This process works basically the same for both trial and appellate judges. Our next general election is in November. So any judges recently appointed by Governor O'Malley need to be ready to hit the ground running on the campaign trail so they are prepared to run in November.

This process is playing out now for applicants to the Court of Special Appeals of Maryland. The way that court is set up, there are seats dedicated to certain geographically determined appellate circuits, as well as "at large" seats. Right now there is a vacancy on the court for the seat dedicated to the Fourth Appellate Circuit, which covers Prince George's County.

The following have been vetted by the nominating commission and have been presented to the Governor for consideration:

Honorable Toni Evon Clarke
Adrienne Morgan Davis
Honorable Melanie Marva Shaw Geter
Honorable Michele Denise Hotten
Mark Kotlarsky
Honorable Thurman Haywood Rhodes
Clarke, Geter & Hotten are sitting judges on the Prince George's County Circuit Court. Rhodes is a judge on the District Court for Prince George's County. Davis and Kotlarsky are private attorneys.

It remains to be seen which candidate will be selected. Or, the Governor may decide that he doesn't like the list and ask that the vacancy be readvertised. It will be interesting to see how the selection process plays out.

As promised, here is the second part of my thoughts on preparing and presenting appellate argument:

SHOW SOME COJONES. You are never arguing to one judge on appeal. Lets say it immediately becomes apparent that a member of the panel hates your argument. They come right after you with hard questions. Don’t back down. You are an advocate. You aren’t getting paid for your ability to show up and agree with the court. Your job is to forcefully and passionately advocate for the result your client needs, in a respectful, logical way. Plus, you do not always know what is going on. Maybe the judge grilling you is the only one on the panel who thinks you are wrong. If they back you down, you may well hurt your case with the silent majority of judges who are watching. Maybe your questioner agrees with you, but the questions are designed to show unsure members of the panel why your argument stands up under duress. You are there to make an argument. Make it.

BE PREPARED TO ADDRESS ADVERSE LAW. Learning and applying the cases that support your argument is easy- especially if you wrote the brief. It is more difficult and equally important (perhaps more) to be able to distinguish the cases your opponent relies on and explain to the court why they should not control the result in your case. There are a few ways to do this. Are the facts substantially different? Are there policy reasons they should not apply? Do they rely upon different substantive law, or was the procedural posture radically different? What I do is I sit down with a yellow pad. I read and highlight the opinion without taking notes. Then I write a detailed summary of the case and its holding. In the margin I make notes on all of the possible ways to distinguish the case. Generally, you will only be concerned with ten or so cases, unless you are arguing something truly complicated. After summarizing all of the cases, I prepare an outline with only my bullet points on how to distinguish each. Now I have an easy cheat sheet that goes in the folder I take to the podium. Even if I draw a blank mentally, a quick glance down has me right back on track.

NO INTERPRETIVE DANCE. You are not in front of a jury, and you are not Jennifer Beals in Flashdance. Moving around and waving your arms does not impress the court, and it can be pretty distracting. You want them to focus on your argument, not how well you approximate the Electric Slide. I tend to be a fidgeter, so I revert back to all those years in Catholic school. When I don’t know what to do with my hands, I fold them in front of me. For a great way to drive this home, get a video of yourself arguing, if one is available. The Maryland Court of Appeals webcasts all oral arguments. I have found watching myself to be very valuable in terms of self-scouting.

KNOW WHAT YOU WANT THE OPINION TO SAY. One member of the court in my last case asked both sides to tell him what we thought the paragraph of the opinion right before the statement of the holding should say. I think this is the essence of what you are there for. By the time of argument, if you do not know the analysis you want the court to apply, and how that analysis applies to your facts, you have messed up big time. All this means is that you should be able to summarize your argument in about a paragraph. In my briefs, normally, I have something very similar to this in my conclusion. Or, if you have briefed it right, the substance of this may be found by reading the section headings like an outline.

SKIP THE INTRO. I do not begin argument by introducing myself, summarizing the facts, explaining who the parties are, or any other preliminary B.S. like that. The court knows who I am. That is why the panel chair just indicated it was my turn by looking at me and saying “O.K., Mr. Bratt?”

I am sure that there are as many ways to do this as there are attorneys practicing appellate litigation. So if anyone has some other ideas, I would love to hear them.

First, check out the Hon. Dennis Sweeney's statement on the Sheila Dixon case. If you take the time to read it, you will find it very enlightening. If I'm wrong, I will refund the purchase price of this blog post.

It is clearly Judge Sweeney's belief that the conviction was not the result of a confused jury, political play, or anything other than the fact that Mayor Dixon did some things that any reasonable person, particularly one with her intelligence and political experience, would know were stupid.

I have seen Judge Sweeney speak (in fact, the topic was professionalism and ethics), know his reputation in the legal community, and have had friends serve as his clerks. He's now retired, because Maryland has an incredibly stupid law requiring judges to step down at age 70, but allowing them to hear cases part-time. In my opinion, all that does is bolster his props as an independent outsider. He's legit. I am accepting his opinion at face value.

Really, this piqued my curiousity because it is an extremely rare insight into the judicial thought process. We rarely get an unvarnished version of what a judge truly thinks about a given case. It is apparent that Judge Sweeney accepted the plea deal because he found that it was in the interest of justice and in the interest of the citizens of Baltimore and the democratic process.

Oh, and he was right to stick up for the jurors. Trial by jury is the essence of democracy. Limiting the right to a jry trial makes sense only if you want to live someplace like China, Cuba, the Soviet Union or Iran. It's not a perfect system, but it beats the alternative handily under any system of measurement you can devise.

Second, if you want to read an appellate opinion that can easily be understood by any layperson, and that also features seamless legal analysis, check out this opinion by the Hon. Charles Moylan. An easy way to spot a Judge Moylan opinion is with a scale. The heavier it is, the more likely it's his. He tends a little to the wordy. But what's great about him is his opinions always have everything you need to fully understand whatever he is discussing. If I am doing research, I love coming across a Moylan opinion because invariably he has collected all of the relevant authority in one place. I'm no criminal lawyer, but I had no trouble understanding the complex Fourth Amendment analysis Judge Moylan is making, and I doubt you will either.

Seriously, tell me it makes sense for this guy to relegated to part time status at age 70. That rule should really be changed.

Here is a report about a New York lawyer who is helping a victim of horrific abuse. HT to Above the Law.

"Amy" was victimized by an uncle who used her as the star of child pornography. She has hired an attorney, James L. Marsh, who has had her evaluated, and has obtained expert reports showing the effects of the abuse on her, and documenting how much it has cost her in counseling, diminished wages, and lawyer fees. The total is about 3.4 million dollars.

Mr. Marsh has taken the position that every person convicted of posessing one of the images of Amy is jointly and severally liable for her damages. He has made hundreds of court filings seeking restitution on this basis. Many judges have agreed, although some have criticized this approach, arguing that the link between posessing a single image and the damages claimed is too tenuous.

Although many of these perverts are incarcerated and have little or no assets, others are comparatively well off. In the first year of this strategy, Mr. Marsh has collected over $170,000 for Amy. He is pledging 10% of his attorney's fees to the Children's Law Center.

Mr. Marsh's website states that he is a member of the American Trial Lawyers Association (now the American Association for Justice), a group I am proud to be a member of. We are the greedy trial lawyers everyone is telling you are ruining America. What this lawyer is doing is in the best tradition of advocating for justice on behalf of an innocent victim.

Mr. Marsh, I salute you.

In case "Jersey Shore" doesn't work out, cast member Vinny plans to go to law school. I do not remember tanning being a big part of law school.

For those of you who are in suspense, Part Two of my Tips for Appellate Argument is still in the works. In the meantime, I thought I would share some knowledge from two experts in the field.

Last week I attended the Maryland Association for Justice’s Workhorse seminar. Part of the program was a talk on appellate advocacy given by the Hon. Joseph F. Murphy, Jr. of the Court of Appeals of Maryland and by Marc Fiedler, an attorney with Koonz, McKenney, Johnson, DePaolis & Lightfoot in Washington, D.C.

To whet your appetite for the balance of my thoughts, here is one selected tip from each.

From Judge Murphy:

As you prepare for argument, (1) anticipate questions, (2) rank them in “degree of difficulty,” and (3) develop an answer. The Answer may be, “Yes, your Honor, on the facts of that case, but no on the facts of this case.” The answer may be, “We concede on that issue, but are entitled to [a reversal] on [another issue that is more favorable to you].” Do not run the risk of hearing that “you have not answered my question!”

From Mr. Fiedler:

Pay close attention to the applicable standards of review. Standards of review largely determine the power of the lens through which the appellate court may examine a particular issue. An error that may be a ground for reversal under one standard of review may well be insignificant under another. Therefore you must craft your brief and oral argument on appeal to reflect the proper standard and to show why, under that standard, your client deserves to win.

Helpful information. It is incredibly valuable to hear practice suggestions, particularly from the bench, no matter how much experience you have. I suggest that all lawyers take these opportunities when they are presented.

The Maryland Judiciary has announced that there is an opening on the Court of Special Appeals of Maryland due to the retirement of the Hon. James P. Salmon. This seat corresponds to the Fourth Appellate Circuit, consisting of Prince George's County.

The Court of Special Appeals is the state's intermediate appellate court. Per the state judiciary's website, there are not yet any applicants for the seat. I will keep an eye on this vacancy. Because I practice in Prince George's County frequently, there is a good chance I will know something about any prospective applicants.

Today the Baltimore Sun reports that a former Baltimore County prosecutor has been charged with an armed carjacking. He is noted to have had recent legal troubles, apparently stemming from addiction issues. According to the article, efforts to strip him of his law license are underway, with the Court of Appeals of Maryland scheduled to hear the case next month.

I can't help but feel bad for the guy. Obviously, he is charged with committing a serious crime. By expressing sympathy, I don't intend to minimize that. But this is a person who seemingly was a productive member of society before getting on the wrong path.

There are always articles in the bar association newsletters talking about how practicing law is a high-risk profession for substance abuse and depression. I would urge anybody who needs help to get it. Stories like this should remind everyone that even though "it can't happen to me," sometimes it can.

The last few months, I have been appearing in appellate courts more often than trial courts. For a lot of trial lawyers, this would be a bad thing. I actually prefer it. Don’t get me wrong, I enjoy trial work- I love the competition and the chance to use my creativity. But I love handling appeals. If I had the choice, I would choose an appellate argument over a jury trial any day of the week.

Here are a few thoughts I have about the right way to handle oral argument before appellate courts. They are not in any particular order. Actually, one of them is, and it’s first.

DO NOT READ THE ARGUMENT. Seriously. If you think this is a good idea, you are not competent to handle appeals. In fact, not only should you not handle appeals, but if I have to sit there while you read it, you should be killed. Every appeals judge in the land will instantly hate your argument if you are reading. Since they sit on an elevated bench, this means that they can only see the top of your head. It means you are not making eye contact. It demeans the process because it inhibits free flowing interaction with the court. It undermines your ability to quickly analyze and react to the court’s questions. Even though this seems like the most common-sense rule imaginable, I have personally seen two lawyers do this in the last 30 days. I think all of us are a little nervous, even if only for the first few sentences. But if you need to read a prepared argument, you are probably are not cut out to be an appellate lawyer, and you should retain appellate counsel.

ANSWER THE COURT’S QUESTIONS. Appellate judges are usually pretty smart. If you are not expecting to get asked tough questions, you don’t know what you’re doing. The judges expect answers. If you try to duck the question, you will likely get caught, and the court will ask you again. Or, if you are really unlucky, you will get asked if you are conceding you don’t have a good argument because you are avoiding the question. Also, don’t answer a question if you did not fully hear or understand it. This happened to me in my last argument. I got a long convoluted question from a judge who talks fast. I didn’t catch the last sentence. The right way to handle this is to say “I’m sorry your honor, could you repeat that?” In my case, I ended up with seven laughing judges, because I don’t think I was the only person who didn’t catch it. But it did get rephrased, and I was then able to give an appropriate answer. It’s better to ask than it is to give a bad answer to a question you didn’t hear or understand.

MEET HYPOTHETICALS HEAD-ON. Appellate courts love hypotheticals. Remember, if you are in a court of record, there is a good chance a reported opinion will ultimately get applied to lots of factual situations that differ from the specific facts before the court in your case. Judges are conscious of this, and you can expect hypotheticals designed to test how the result you are trying for would affect different facts. Sometimes these questions are designed to present intentionally absurd facts to test the logical reasoning of your argument. Don’t be afraid to pick these hypotheticals apart. If the facts differ so greatly from your case that a different result would happen, tell the court that and tell them why.

Check back later in the week for a few more of my thoughts on this topic.

I have been away from the blog for a few days because I have been preparing for oral argument in the Court of Appeals of Maryland. See, when I ignore you readers it is only because I have been doing big, important lawyer-type things.

Yesterday I argued two consolidated appeals where the issue is the scope of discovery that lawyers can obtain into the financial bias of retained expert witnesses. Nearly every Maryland personal injury case involves some type of expert testimony.

Generally this falls into two categories. First are treating doctors who are drawn into cases simply because they happened to treat a patient who was injured in a way that later became the subject of litigation. These are not the people I am concerned with. Second, are experts who are only involved in the case because they are sought out by one side or the other to give opinion testimony for money, specifically for the purpose of litigation. The way this mostly comes up in what I do, is the defense side on an auto or trucking accident case hires a doctor to examine the plaintiff and to testify to one of the following: 1) There is nothing wrong with them; 2) There is something wrong with them, but it is not as bad as they say it is; or 3) There is something wrong with them, and it is as bad as they say it is, but it was caused by anything other than the accident.

What I see is the same group of doctors being used repeatedly by certain defense attorneys, law firms, and insurance companies. Many of these doctors are very well compensated for giving testimony. I have encountered doctors who have billed as much as a million dollars in one year for doing this type of work.

We want to put this information before the jury to show that the witness is biased in favor of those who are writing his very large paycheck. Often, the witness will not tell us how much they are paid for working as a professional witness, or will greatly under-report their earnings. So we subpoena financial documentation to see if we are being given a straight answer.

The Court of Appeals is expected to address the scope of the documentation we are able to obtain, and the means for obtaining it. The opinion could have broad implications for all Maryland lawyers handling injury cases. I think the oral argument went pretty well. If you are interested and have the free time, you can see the argument here. They are cases No. 60 and 90.

I am not sure how long it will take the court to issue an opinion, but I expect to wait at least a few months. I will post the opinion when it comes out. I am hoping the court will come down on the side of our juries having accurate information about the self-interest of the witnesses presented to them.