Insurance Defense Blog

Cross examination of illegal aliens

Illegal aliens or undocumented workers have become a constant presence in civil litigation.  They may be plaintiffs, defendants, your witnesses, or the opponent's witnesses.  In workers compensation matters, they may be claimants, co-workers and sometimes employers.  Where an illegal alien is concerned, there may be violations of immigration or other laws that offer opportunities for cross examination or even legal defenses.   To develop the evidence to raise such issues, it may not be enough to take discovery from the witness or party; it may be necessary to also take discovery from his or her employer.  That requires prior planning and a determination to contest objections.  It is almost a certainty that there will be resistance to disclosure of facts about a witness's immigration status.  That may result in discovery disputes and rulings from the court or agency that could be the basis of meritorious appellate issues.  The assertion of 5th Amendment privileges may also be a basis for proper adverse inferences to be drawn in a civil matter.

Any lawyer who is involved in litigation has to be prepared to deal with immigration-related issues from either side.   It is not an issue "owned" by the defense bar or the plaintiff's bar.

As a threshold issue, the advocate has to consider the venue and the likelihood of how such a cross examination will be received.   Illegal immigration isn't a new phenomenon and there will  be a local body of law to be consulted.  See this recent Fairfax, Va. court ruling, for example.  Further, an attempt to cross examine on such issues could backfire.  There is some moral ambivalence about illegal immigration.  On the other hand, as Robert Samuelson's column in the Washington Post points out, the magnitude of the problem of illegal immigration, in terms of sheer numbers, now militates against the impulse of a nation of immigrants to simply overlook the issue.

There is a pervasive criminal element that sells fake documentation to illegal immigrants so that they can obtain work.  Evidence of the use of such fake documentation would be useful information to uncover for purposes of cross examination.  Every year the Social Security Administration sends out "no match" letters to employers concerning millions of workers who are using invalid social security numbers.   Discovery should focus not only on the worker, but on the worker's employer, who might have copies of the false documentation used to obtain the job and a copy of any "no match" letter received from the SSA with regard to this particular employee.

More on this later.

Privilege and Insurer-Insured Communications Under Maryland Law

The Defense Line has an article entitled "Insurer-Insured Communications and the Scope of Maryland's Attorney-Client Privilege."   Such communications can be privileged if (1) the dominant purpose of the communication was for the insured's defense, and (2) the insured had a reasonable expectation of privacy.

Landlord Wins Eviction Suit By Rummaging Through Tenant's Trash; D.C. Court of Appeals Affirms Dismissal Of Follow-On Privacy Suit By Tenant

In Danai v. Canal Square Associates, there was a dispute between the landlord and the tenant, a travel agency, concerning whether the tenant failed to renew its multi-year lease.  During a bench trial, the landlord impeached the President of the travel agency, who had testified concerning her understanding of the renewal provision in the lease, by questioning her about a draft letter to the landlord which the landlord had found in the tenant's trash.  The trial court entered judgment for the landlord, giving it possession of the premises.

The tenant then brought suit against the landlord for invasion of privacy and intentional infliction of emotional distress.   It was undisputed that the tenants' trash was taken out from the leased premises and stored in a "trash room" in the building.  The letter had been written and then torn up on March 30, and on April 1 a Vice President of the landlord went through the tenant's trash in the trash room and recovered the letter.  The letter was used at trial to prove that the tenant was aware of its failure to give notice to the landlord of its intent to renew the lease.

The trial court granted summary judgment to the landlord, finding that the tenant did not have a reasonable expectation of privacy in its trash, and the D.C. Court of Appeals affirmed.

Discoverability of Reinsurance Information

An interesting article in the FDCC Quarterly: Loss Of Privilege: The New Discoverability Of Reinsurance Information by Mitchell A. Orpett.

Maryland Court of Appeals Holds That $300,000 Plus Verdict In Auto Accident Case Must Be Reduced To $25,000 Due To Plaintiff's Reliance On Md. Courts and Jud. Proc. Code Sec. 10-104

A plaintiff, having taken advantage of the evidentiary shortcut provided by § 10-104 (c), is precluded from recovering more than $25,000.00, the jurisdictional limit of the District Court, notwithstanding the fact that the case was removed from the District Court and tried in the Circuit Court. James v. Butler (Md. Dec. 18, 2003).

Mold Detection Canines

I first heard about this today at my dentist's office, as my dentist and his assistant were joking about mold sniffing dogs and how mold is going to be the next asbestos. So I googled mold sniffing dogs and got this and this. Also this profile of mold dog. There is even a website called mold-dog.com, which can help you find a mold dog and which has a streaming video available showing a mold dog in action.

D.C. Court of Appeals Affirms Use of Missing Witness Instruction

In McPherson-Corder v. Chinkhota, the D.C. Court of Appeals affirmed the trial court's use of a missing witness instruction in a medical malpractice case, while cautioning that its use is only allowable when stringent conditions have been met.

In this case, a 14 year old boy slipped and fell on ice, doing a split in the process, and began to have pain in his groin area afterwards. His mother took him to the defendant, his pediatrician, for an examination, and the defendant found no serious injury. The next day, the pain returned in greater intensity, and the mother called the pediatrician's office, and spoke to a different physician who was on call, who advised her to take her son to the emergency room. Not realizing the urgency of the situation, the mother and son stopped at the mall to do some shopping on the way. At the emergency room, it was discovered that the son had suffered testicular tortion, that too much time had passed to save the testicle, and it had to be surgically removed.

Plaintiffs alleged that the physician was negligent in failing to refer her son to a urologist, and in failing to advise them of the risk and urgency of testicular tortion. The jury found for the plaintiffs, awarding $200,000.