Insurance Defense Blog

Failure to order complete trial transcript results in dismissal of Virginia appeal of $8.3 million verdict

A simple clerical error -- failing to order the complete trial transcript -- resulted in the dismissal of the Virginia appeal of a $8.3 million verdict and also spawned two other lawsuits.  These events and their consequences are worth reviewing, as many lawyers will have to admit "there but for the grace of God . . . ."

A 17 year old girl sustained severe injuries, including brain injuries, when skiing in Virginia.  Essentially she collided with a snow grading machine that was being driven up the intermediate slope to reach a snow tubing run.  On July 16, 2004, after a week long trial, a jury returned a verdict in the amount of $8.3 million against the resort.  Read the plaintiff's counsel's closing argument: Download Grigg closing argument 

The defendant and its insurer certainly anticipated a possible bad result, as they retained  prominent appellate counsel shortly before the trial had even begun.

An appeal was noted to the Virginia Supreme Court.  Somehow, someway, at least one trial transcript was apparently not timely filed on the appellant's behalf.  For that reason, the Virginia Supreme Court ultimately dismissed the appeal in July 2005.

Subsequently, the insurer of the ski resort filed a legal malpractice suit against the trial defense counsel in the Circuit Court for the City of Richmond in July, 2007.  Shortly thereafter, the case took on political overtones, as it was revealed in a newspaper story that one of the attorneys involved in the failed appeal was under nomination to the U.S. Court of Appeals for the Fourth Circuit.

On September 10, 2008, one of the defendants in the legal malpractice case filed his own suit against the involved insurers and their counsel, for defamation, abuse of process, and conspiracy to injure the plaintiff in his business.  Essentially, he claimed that he had no involvement in the post-trial matters in the skiing accident case, since it was all turned over to appellate counsel.

The latter suit was recently dismissed on Jan. 6, 2009 by U.S. District Court Judge Norman K. Moon, in part due to the absolute litigation privilege and the statute of limitations.

An appeal was taken to the Fourth Circuit concerning the latter ruling.  Apparently while on appeal, a settlement was worked out, and as part of the settlement it was agreed that there would be a vacatur of Judge Moon's opinion.  Judge Moon, however, denied the request for vacatur.Download Spencer-denial of vacatur

Meanwhile, the legal malpractice suit arising from the failed appeal was non-suited on March 30, 2009.

 

 

4th Circuit adopts mandatory electronic filing

The Fourth Circuit has adopted mandatory electronic filing as of June 1, 2008.  Register here.

I wonder how this is going to change the appellate process, and how it is going to affect the business of the printing companies who service the needs of parties in the appellate courts.

Checklist for E-Filings in DC Superior Court

Tips recently provided from the DC Superior Court for successful e-filing:

ü     I have the proper full case number and judge having checked at www.dccourts.gov/pa

ü     If I am filing in response to opposing counsel’s filing, I have checked my eService Inbox to make sure the court clerk accepted the opposing counsel’s filing before I eFile

ü     I have typed “/s/” and the filing attorney’s name, applied an imaged signature, or printed the document, had it signed and scanned

ü     I have named my documents appropriately on my computer (i.e. Motion for Summary Judgment, Certificate of Service, Answer, Opposition, Witness List)

ü     I have included a properly completed Certificate of Service with a signature and date of service specifying who and how service was accomplished

ü     I have included a Proposed Order in the efiling

ü     For filings over 25 pages, I am uploading all documents attached to the lead filing in the second field and checking the merger box

ü     For filings over 25 pages, I have also mailed a paper copy to the Judge

ü     I have emailed the Proposed Order to the judge to the judge’s eservice box:

ü     In a Microsoft Word or WordPerfect format

ü     Subject line includes case number followed by case name

ü     email format: judge[lastname]eserve@dcsc.gov or magistratejudge[lastname]eserve@dcsc.gov

ü     I have caused service of this filing to be made

DC Bar's Virtual Law Library - Law of Lawyering

The DC Bar's website is sporting a "Virtual Library" these days.  Most significantly, it includes a lengthy treatise on the Law of Lawyering, courtesy of the law firm of Covington & Burling, described as follows:

This publication, written by D.C. Bar member David B. Isbell, is a comprehensive analysis of the D.C. Rules of Professional Conduct, which governs the ethical practice of law in the District of Columbia, as well as the attorney discipline system upholding those rules. Published 2004. Updated in part, March 2007, following amendments to the Model Rules in 2002 and 2003 and the D.C. Rules of Professional Conduct effective February 1, 2007.

This reference should be among those consulted by any D.C. lawyer researching an ethical issue.

Settlements and the Medicare Secondary Payer Act

In this very confusing area, the best overview I have read so far is Dampf, Mediations & Settlements:  Applicability of the Medicare Secondary Payer Act, Louisiana Bar J., Vol. 54, No. 3 (Nov. 2006).  It is available online.

Click here for the current CMS guidelines on Workers Comp Medicare Set Aside Arrangements.

Eight signs that point to nonorganic back pain

This medical journal identifies eight signs that point to nonorganic back pain.  Thanks to Karen Shelton at the Trial Lawyer Resource Center for the link.

Top ten reasons to move for mistrial in a civil trial

An English lady once asked the Lord Chief Justice what was necessary in order to win a case in court.  He replied: "First, you need a good case, then you need good evidence, then you need good witnesses, then you need a good judge, then you need a good jury, and then you need good luck."

Wellman, The Art of Cross-Examination, Ch. 6, p. 143.  As this quote suggests, there are a lot of things that can go wrong.  Improper testimony or argument must be objected to, and if appropriate, a curative instruction should be requested.  However, the curative instruction, if given, may be insufficient to remove the prejudice, and it may no longer be possible for your client to get a fair trial.  When that happens, the defense counsel must move for a mistrial.

This, of course, is not to be done by blurting out in open court, in front of the jury, "I move for a mistrial."  No, the way it is done is to rise and ask the court if you may approach.  Then you must move for a mistrial at the bench, out of the hearing of the jury.  The trial judge may not want to hear this, and may refuse permission to approach, but you must be insistent, and in any event you must make your motion at the earliest opportunity.  The denial of a request for relief is preserved for appellate review if the record shows that it was presented to the trial court "at a time when the trial court could have corrected the error."  McCallum v. State, 81 Md. App. 403, 419, 567 A.2d 967.

Failure to do so will likely result in waiver of any right to take the issue up on appeal. To preserve the argument that a curative instruction to disregard inadmissible evidence cannot cure the error, a motion for mistrial is necessary.  See Medical Mutual v. Evans, 330 Md. 1 (1993).

There are some trial events that will likely result in an objection, motion to strike, request for curative instruction, and a motion for mistrial:

1. Reference to the defendant's liability insurance or insurer in testimony elicited by plaintiff's counsel, or in plaintiff's counsel's closing argument.  See, e.g., Snowhite v. State, 243 Md. 291 (1963).
2. References to race or racial discrimination in a suit in which there is no claim for discrimination.  See, e.g., Tierco Maryland, Inc. v. Williams, 381 Md. 378 (2004).
3. Counsel's expression of his or her own opinion on the issues in closing.
4. A derogatory remark about the opposing party.  Renaudo v. Bloom, 209 Md. 1 (1956). 
5. The "Golden Rule" argument in closing, inviting the jurors to step into the shoes of the plaintiff.  See, e.g., Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980), cert. denied, 449 U.S. 1080.
6. Arguing matter outside the record.
7. Comments on failure of a witness to testify, when the witness was equally or more available to the party who is making the adverse comment.
8. Mention of excluded matter.
9. Vouching personally for a witness.
10. Juror misconduct, or inappropriate contact between parties or their attorneys and jurors.

Increase your expertise with pdfs

Thanks to Ernie Svenson via Dennis Kennedy for useful tips on how to better use pdfs when filing in federal court.  Dennis Kennedy says that "One of the best uses of training time and dollars for lawyers would be classes on using Acrobat."  He's right.  I would add that any lawyer (or lawfirm IT guy) who orders a new computer or laptop without getting Acrobat bundled with it will regret it.

Out-of-State Depositions

This article on how to set up an out-of-state deposition is the best I've seen on the subject, even though it is dated.

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.