Accident Nuts & Bolts

Jury Selection: Thoughts From Ohio

One thing I have been trying to do with our blogs is to give our readers an opportunity to hear from other lawyers. Today, I have another guest post from Anthony Castelli, a personal injury lawyer in Cincinnati, Ohio. You can learn more about Tony’s practice here.

Tony is writing about a topic that is both near and far from my heart: jury selection. I say near to my heart because it is so incredibly important. Sadly, we probably have the most most restrictive voir dire in the country. That may change soon. But I doubt it.
Tony also has some interesting commentary about trying to use the suggestions of other lawyers and trial consultations, most notably David Ball whose work we have written about a great deal.

With that introduction…
I have selected many juries in personal injury cases, primarily in Hamilton County, Ohio where my practice is based. As I understand is the case in Maryland, Ohio also has an unlimited number of challenges for cause. One example of a challenge for cause would be a juror is related to one of the parties. Another example is the juror admits they cannot be fair to your client. It’s not easy to elicit that from a juror, but if you can get the Judge to dismiss a potential juror for cause, that saves you from using a peremptory challenge. A peremptory challenge is a challenge that needs no reason behind it. You do not even express the reason to the Court. In Ohio you get three challenges for cause. You do not have to use any of them if you do not want to.

The Purpose of Jury Selection
My purpose in selecting a jury is to get the most favorable jury for my client. I have found there are some essential issues that I have to develop with each juror so I can make an informed guess as to whether they will be receptive to my client and have a willingness to award a significant some of money. Every personal injury trial has that issue. How much is the injury worth.

Open ended Questions
The best way to do explore money with a juror is to ask open ended questions so you can get to know how jurors feel about awarding money damages. The question simply is, “How to you feel about awarding money damages for pain and suffering and the loss of the ability to do those things that gave your life value.” I then add, “Some people think you should offer up your suffering and that is how my grandmother felt. You should not seek money for pain and suffering. How do you feel about that Mr. Juror?

Tort Reform and the McDonald’s case
Everybody thinks there are too many lawyers and too many lawsuits. Lawyers are aware that insurance companies have poisoned the pool. The McDonald’s case, known as the hot coffee case. Most people think it’s crazy to sue for spilling coffee on yourself. Framed that way, it is crazy. Some lawyers try to explain the case by putting it in context. But I use it as an example of a frivolous lawsuit. And immediately look the jury dead in the eye and tell them my client’s case is not one of those cases.

Sympathy for the Defendant and the Inability to Mention Insurance
If you are lucky some jurors will tell you that they cannot award a substantial verdict unless they know the defendant has insurance to pay it. Like Maryland, you can not bring up insurance in Ohio other than to ask, “Has anyone ever worked for a casualty insurance company?” I broach the subject by asking, “Does anyone need evidence of the source of the payment before they can award a large verdict?” I’ve had jurors tell me they could not award a large amount unless they knew how it was going to be paid. That’s where you give the judge the opportunity to tell them that should not be a consideration, and no evidence will be submitted on that issue.

Telling the Jury the Amount You are Seeking in Damages
I think you need to tell the jury the amount you are asking for. And then follow up with, “If the evidence is such that it is a fair number would you hesitate to make an award just because of the size of the number.” I think you need to know who balks. In one wrongful death case I tried, one of the jurors said that the amount was not enough. Needless to say the defendant got rid of that juror.

A Defense Dirty Trick
Cagey veteran defense counsel will tell the jury this case is only between Mr. Plaintiff and Mr.Defendant. No one else is involved. They are telling the jury in so many words that there is no insurance. This is totally improper and should be met with an objection. You should ask the judge to give a cautionary instruction that it is not a correct statement. In Ohio, this can be reversible error.

Be Yourself
Remember always be yourself. I retried a mistrial . In between the first and second trial I read David Ball’s book on jury selection. I tried to use his ideas in the second trial during jury selection. Afterwards the bailiff came up to me and asked what was wrong. At he first trial I was comfortable and had a great rapport with the jury. In the second jury selection I was stiff and stilted and unsure of myself. So develop your own style.

How Car Accident Attorneys Put More Money in Their Injury Clients’ Pocket

This is a guest post by Anthony Castelli, a car accident personal injury lawyer in Cincinnati, Ohio.

A car accident attorney’s primary job is to put as much money as they can in their client’s pocket. It does not benefit the client that has serious injuries and damages to get a large settlement, but after the attorney’s fee, expenses of preparing the case, and payment of medical bills and subrogation claims, there is little left for the client.

The old adage “it takes money to make money is also true.” The good personal injury lawyers know that in most cases they will need to pay a doctor for a comprehensive report detailing the nature and extent of the car accident victim’s injuries, how those injuries will affect the client in the future and the cause of the injuries. This helps drive the car accident settlement amount up, in some cases substantially.

So the answer to putting more money in the client’s pocket is not spending less money on preparing the case. Of course, it is helpful to spend the money wisely. But it will be necessary to spend money on certain things, such as the doctor’s report and obtaining all the medical evidence. Some attorneys will not advance the expenses. They expect the car accident victim to front the expenses.

It is normally my practice to advance the expenses of preparing the personal injury case. The client then pays the expenses back out of the settlement. Most of the good auto injury lawyers handle cases this way. Otherwise the case would come to a stand still or settle cheaply, as most seriously injured people do not have the money to finance their insurance settlement.

In the first paragraph of this article I used the word “subrogation.” Normally, your medical insurance has a clause in the contract that requires injury victims to pay the medical insurer back if the car accident victim gets compensation from a third party. This is what subrogation means. This is where a smart car accident lawyer will work to put more money in your pocket. They will attempt to negotiate with your medical insurer to take back less than what they actually paid.

The auto injury attorney’s first step should be to get the language of the insurance policy. In some cases the insurance company fails to put the appropriate language in the policy to allow them to recover what they paid. Even if they have the correct language there are still arguments to be made such as unjust enrichment, failure to be made whole, and other equitable arguments.

You retain the most leverage by getting the best offer from the liability carrier and then negotiating with the medical carrier to reduce their payback. If you settle and then try to negotiate you have lost one of your big bargaining chips. That chip is to tell the medical carrier that your client is interested in the net in their pocket. If the medical insurer does not give some reduction your client may want to file suit. Then the medical insurer will have to hire a lawyer to collect and their net in their pocket will be less.

Maryland Law on Spoliation

I remember learning about spoliation in law school. I never imagined how frequently these issue would affect my law practice. Particularly in truck accident case where defendants seem to lose everything imaginable. Spoliation, for non lawyers and new lawyers, is when the defendant purposefully or stupidly destroys evidence that it knows or should know would be relevant evidence at trial. Under Maryland law, there are many means to deter, penalize, and ameliorate the prejudicial effects of spoliation. The most common weapons, evidence sanctions, and/or corrective jury instructions, are available to Maryland trial judges as remedies to deal with acts of spoliation. These judges have wide discretion to deal with these parties that destroy evidence.

Continue reading

Investigating the Truck Driver

When working up a serious truck accident case, the experienced truck accident attorney starts with a complete background check on the truck driver that you believed caused the accident. Nothing you find is going to be admissible against the driver. Having an awful driving record is generally not admissible in plaintiff’s case-in-chief against the driver. But such information may very well be admissible against the trucking company in a negligent hiring/training/retention/entrustment case.

There is one other way to get bad, prior conduct from the defendant truck driver into evidence: let him (usually him) lie about it. A lot of truck drivers that I have deposed don’t come prepared to tell the entire truth, and in spite of the fact that the case is about someone they killed or seriously hurt, they assume the plaintiff’s lawyer has not done their homework and they can fudge history a little bit. This can make a mountain out of a molehill.

Another place you find the truck driver failing to tell the truth is during his criminal trial. You can sometimes find outrageously good nuggets in the transcript when the truck driver was doing anything he could to avoid a conviction. If you have clear lies under oath, the jury is going to assume – probably correctly – that anything the truck driver says at trial may be a lie.

I have successfully handled a lot of truck accident cases, often referrals from Maryland car accident lawyers who understand that the issues at play in commercial trucking accident lawsuits are very different from the run-of-the-mill car crash cases.

Getting Police Reports in Calvert County

More and more police departments in Maryland are joining the rest of us in 2012 and making car accident police reports available on line. Calvert County police reports for car crashes will generally be available within 5-7 business days after the date of the accident.

This is that rare development in car accident cases that is a win-win for everyone: car accident lawyers, insurance companies, and the drivers themselves can get police reports with much greater ease.

To get an accident reports in Calvert County, go to their website.

Crash Victim’s Family Opposes Proposed License Renewal Change

The family of a promising young man, who was killed while riding his bike by an elderly driver, is opposing a bill that would allow drivers to hold a license for eight years, instead of the current five year renewal requirement.

Sad story here. The driver, an 83 year old woman, was attempting to make a right turn, and turned into the path of the bike rider.

The mother of the deceased is lobbying to keep legislators from increasing the span that drivers can go before renewing their licenses, and has said that eight years is too long for people over 40 to hold a driver’s license without some kind of regular testing. She has stated that the law is going in the wrong direction, and that it is not going to make our roads safer.

Eight years may be a bit excessive of a time frame when you are considering an 83 year old, but a 40 year old? Speaking for myself, and I’m over 40, I can’t see that a decrease in the current five year requirement is the answer either.

Of note, the driver involved in this accident was able to keep her license, and kept driving for several months after the accident.

Accurant v. TLO


Tracking Down Car Accident Defendants

As I’ve written before, we spend a lot of energy trying to track down defendants. Not in most cases, but when we can’t find someone with relative ease it can be a big hassle. In 2012, people are moving more quickly and leave fewer tracks when they move. One effective weapon we have used over the years is Accurint which provides access to over 34 billion current public records that you can utilize to find your man or woman.

Apparently, whoever started Accurint sold out to Lexis and this same person (obviously, I’m using hearsay here) has now started a new company. Some plaintiffs’ lawyers are saying that it has just a ton of information (and, apparently, is free for law enforcement officers).

We have not tried it out yet because we are chickens that are set in our way. So, changing from a product that you trust is hard. But you can find TLO – which is what is called – here. If you are using it, leave a comment and tell me what you think.

Have You Located Your Incarcerated Witness Today?

We’ve all been through it before…trying to locate either the defendant or the “friend of a friend” who was with our client at the time of the accident. When this person appears to be absolutely nowhere, it is worth checking out whether this defendant or witness is a guest of the state of Maryland.

Thankfully, people in jail are relatively easy to find. All but 8 state departments of corrections – including Maryland – makes available to the general public, information and photographs of inmates who are incarcerated. While originally created in the interest of public safety, it has become a tool in which witnesses have been located. There is no charge for these inmate locators, and new states are being added as they become available. You can chose the state you want to search and it will take you directly to their inmate locator. Some states will show pictures, release date, crimes, etc. while others will only list their age with no photo.

You have located your incarcerated witness, now what? If your defendant is in jail, you have an easy means of obtaining service of your Complaint. If you are trying to find a witness to the accident you can arrange a meeting and can videotape the inmate’s trial testimony by videotape. This can usually be set up by contacting their caseworker, though every detention center is different. In most cases, you will need the warden’s permission, as this process will bring in a lot of outsiders (all counsel, court reporter, videographer, etc.).

Clearly, there are some hoops to jump through to dealing with a defendant or witness that is jail in Maryland. While it may cause an accident lawyer a few headaches, finding and gathering testimony from inmates has and can be done.

Coloroda Supreme Court Upholds $10 Million Verdict Against Walmart

The Colorado Supreme Court has upheld a $10 million verdict awarded to a truck driver who slipped and fell on grease while making a delivery to Walmart, resulting in a back injury requiring multiple spinal surgeries.

The Colorado Supreme Court reversed a lower court’s determination that Wal-Mart Stores Inc. was entitled to a new trial. The female truck driver incurred approximately $500,000 in medical bills, and was unable to return to work after the fall. As such, her truck, in which she also lived, was repossessed.

The award, originally $15 million, was reduced by $5 million due to the state’s cap on noneconomic damages, making this one of the highest judgments ever in a slip-and-fall case.

Accident Lawyer Nuts and Bolts Websites

Throughout the day, our law firm might access a hundred websites. The internet has become an absolute necessity to the daily workings of a law office that is hitting on all cylendars. Here are just a few useful links to push the ball forward on Maryland accident cases:

  • Zip Codes – Have an address with no zip code? No problem, enter your address here and you are provided with the zip code you need.
  • County Look Up – Don’t know what county your accident happened in? Once again, no problem, enter the zip and you are provided with the County.
  • Online Video Search Site – This site searches over 100 video sites on the Internet. You can find a video of almost any surgical procedure imaginable on this site.
  • National Freedom of Information Coalition – Offers resources if you are doing a FOIA request, as well as gives you samples.
  • Resident Agent Information – With this link, you have access to every state’s website for obtaining corporation resident agent information.
  • Doctor Search – This is an excellent physician locator service, with links to most states. It also gives you licensing information as well as whether they have had any disciplinary action against them.