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Auto Accident Blog

So, You Ignored My Previous Article And Got Hit By A Car

Thursday, August 01, 2013

One of the worst types of collisions is the pedestrian strike. There is no real positive outcome when a 2,000 lb. vehicle strikes or runs over a person. Generally, the law in Maryland is that pedestrians have the right-of-way in a crosswalk; after that, each case has to be reviewed individually. A few years ago, the state of the law was that anyone who crossed the street outside the crosswalk was at fault as a matter of law, until proven otherwise. That meant that a pedestrian struck outside the crosswalk started the case off with the presumption that she caused or contributed to her injury and could not win her case until she proved that the collision wasn’t her fault. That is called burden shifting. That was a difficult uphill battle for both claimants (injured people) and attorneys. Although that is no longer the law, the idea that the pedestrian contributed to her injury still prevails among many, if not most, Maryland citizens and jurists. The shifted burden is difficult but not impossible to overcome.

For a pedestrian to have contributed to a collision, the fact that she was outside the crosswalk must be an actual and legal cause of her injury. In legal terms, this is called the legal cause or the “proximate cause.” For instance, if a pedestrian is two feet from the crosswalk, it is often fair to say that the motorist should have seen the pedestrian. The cause of the collision was not, in such a case, the fact that the pedestrian was not in the crosswalk, simply being a step or two out makes no difference on whether a motorist should anticipate the pedestrian being there or whether the pedestrian was visible. The failure to walk in the crosswalk did not cause or contribute to the collision.

Another example is if a pedestrian crosses the street mid-block, and a motorist who has been traveling straight for a half mile fails to see the pedestrian and strikes her, the driver should have seen the pedestrian. In this case, the driver could have slowed, stopped, or otherwise avoided the pedestrian, notwithstanding the fact that she was outside of the crosswalk. The fact that the pedestrian was outside the crosswalk was unrelated to the fact that the motorist did not see her. This is because if the motorist did not see the pedestrian prior to the strike then she wouldn’t have seen the pedestrian if she was in the crosswalk. Here, the pedestrian was simply in the wrong place at the wrong time; and under Maryland law, that is not negligence.

From the other perspective, where you have a pedestrian step off the curb directly in front of the and into the path of a moving car, the pedestrian is usually at fault. It does not matter if the pedestrian steps off the curb mid-block, or in the crosswalk, it is impossible for the car to stop. Another important fact to remember is that the driver must yield to the pedestrian in the crosswalk, not the pedestrian on the sidewalk who is thinking about crossing. While the driver owes a duty to the pedestrian, the pedestrian also owes a duty to both herself and the driver. A pedestrian must make sure it is safe before she steps off the curb.

Pedestrian strike cases that occur outside of a designated crosswalk are difficult, but not impossible. Before pursuing such a case, a client must know that there are no guarantees and that the odds of winning and losing are about equal.

By Craig I. Meyers, Esq.

Middle Car Syndrome

Monday, July 15, 2013

I tried a case not too long ago in Baltimore County. My client was the driver of a car that was rear ended and, as a result, was pushed into the rear of the car in front of him. He was injured and made a claim against the rear driver’s insurance, which was denied. I then filed a lawsuit to recover his medical bills, lost wages, insurance deductible, and pain and suffering.

When there are three cars involved in a motor vehicle collision, usually one of two things happens:

  1. The Front car (F) stops, and is rear ended by the Middle car (M),. M is then hit by the Rear car (R), which then pushes M back into F. This results in two hits to F. Here, both R and M are at fault and must split the cost of F’s damages.
  2. Or, R hits M and pushes M into F. The result is one hit to F. Here, only R is at fault. R is solely responsible for paying F’s damages.

The question from the police, insurance adjustors, and attorneys is always the same: Did the Front car’s driver feel one hit or two? Generally, the front driver is a reliable witness. She shouldn’t have any bias because she collects no matter what, either from R or both R and M. The total amount of her recovery does not change, only who pays.

In my case in Baltimore County, it was a little different. The reason the front car was stopped was because it had already rear ended another vehicle about 5 minutes before, and was stopped as a result. My client was the middle car, and stopped behind the front car, when he was rear-ended and pushed into the front car. The result was one hit. The rear driver claimed that he was not solely at fault because he said my client hit the front car first, and therefore my client cannot collect from the rear vehicle, because my client would have caused or contributed to the collision. In Maryland, you cannot win a lawsuit for damages if you caused or even contributed to your own injury.

To win at trial, I had to show that my client was telling the truth, and that both the front driver and the rear driver were “incorrect.” For the rear driver, I was able to show that he could not see the front car’s rear bumper and that he did not see my client strike the rear of the front vehicle. He admitted on cross examination that his belief that my client struck the rear of the vehicle in front was a conclusion, and not something he personally witnessed. Done, his testimony was neutralized.

Next, I had to show that the front driver , who is usually considered the most reliable witness, was not telling the truth. There are several ways to do that. One is to show that the witness is not credible, another is to show that the witness was biased. On cross examination of the witness, I elicited testimony that she had her own personal injury claim, and that it benefited her to overemphasize the severity of the collision involving my client. I was able to show that she had to prove later, to win her own claim, that she could not have been injured when she rear ended the vehicle in front of her a few minutes earlier. I was showed that she benefited from claiming two impact because that would mean that she would be more likely to suffer an injury from the collision involving my client, as opposed to when she rear ended the car in front of her. If her injuries were from the collision where she was at fault, she could not prevail in her lawsuit she planned later, but if they were from being hit two times and not from the prior collision, then she had a viable claim.

When confronted with the property damage, her testimony collapsed. My client had a severe amount of property damage to the rear of his vehicle, and only a few pieces of his plastic grill broken on the front. The front driver had no visible property damage to her rear bumper. On closing I argued that the two witnesses, the front and rear drivers, were not credible, that their testimony was biased and self-serving, and that the property damage clearly showed a large impact to the rear of my client’s vehicle with very little impact to the front. This was consistent with my client being hit very hard in the rear, and then being pushed into the rear of the vehicle in front of him, which he hit only lightly.

We won on the issue of liability, and were granted a significant award for damages.

By Craig I. Meyers, Esq.

The Insurance Adjuster vs. The Officer: Who Will Win?

Wednesday, July 10, 2013

I often have clients ask, if the police report says the other driver is at fault, then why won’t the other driver’s insurer pay my claim? The police report (also known as a Vehicle Accident Report) has nothing to do with whether a judge or jury will find a driver at fault, and therefore has no real bearing on your case. What happens is that there is a collision, someone calls the police, and the police respond. In most counties in Maryland, the officer will not file a report unless someone claims an injury at the scene or if one of the vehicles is disabled.

The officer who responds to the collision is not a witness, and so she does not record her personal account of what occurred, but instead, what other people have told her happened. It is often a compilation of multiple people’s observations, and worse yet, opinions.

Just because the police officer writes in the report that Driver 1 was exceeding the posted speed limit, or that Driver 2 was traveling in lane 1 lane, does not mean that that is what happened. Sometimes one driver is taken to the hospital, and the report is based on one person’s account; sometimes there is a witness, and the officer only records what that witness says. The insurance adjustor for the at-fault driver does not have to rely on the vehicle accident report, and even though it says that the other driver is at fault, the insurer does not have to pay. Remember, the insurer is not in the business of paying claims, it is in the business of avoiding paying claims.

The police do their best, and 99/100 times, they do an excellent job in obtaining information and recording it in the report; but, since the information is often second hand, it is not admissible in court.

The police report is most helpful when it records the officer’s own observances. For instance, it may state, “The driver of vehicle 1 stated that . . . ” or that the officer arrived on the scene and “vehicle 1 came to a rest at . . . .” In that case, the officer is a witness, not to what happened, but to the driver’s admission or what she saw at the scene. The insurer will likely give significant weight to such a report because the officer has recorded her own observances. If the at-fault driver admits fault to the officer and the officer records it in the report, there is virtually no way for the at-fault driver to escape responsibility. If the insurer does not accept fault, then the officer’s testimony in court will be enough to win the case.

The police report is a helpful tool, but you must know how to use and what its limitations are.

By Craig I. Meyers, Esq.

Don’t Get Run Over

Saturday, June 29, 2013

One of the worst types of collisions is the pedestrian strike. There is no real positive outcome when a 2,000 lb. vehicle strikes or runs over a person. Generally, the law in Maryland is that pedestrians have the right-of-way in a crosswalk, after that, each case has to be reviewed individually. A few years ago, the law was that anyone who crossed the street outside the crosswalk was at fault as a matter of law, until proven otherwise. That meant that a pedestrian struck outside the crosswalk started the case off with the presumption that he or she caused or contributed to her injury and could not win her case until she proved that the collision wasn’t her fault. This was a difficult uphill battle. Although that is no longer the law, the idea that the pedestrian contributed to the injury still prevails among many Maryland citizens and jurists. The shifted burden is difficult but not impossible to overcome.

For a pedestrian to have contributed to a collision, the fact that she was outside the crosswalk must be an actual and legal cause of the injury. In legal terms, this legal cause of the collision is called the “proximate cause.” For instance, if a pedestrian is two feet from the crosswalk, it is often fair to say that the motorist should have seen her, forget that she was outside the crosswalk, and therefore her position did not contribute to the collision. If a pedestrian is crossing mid-block, and a motorist has been traveling straight for a half mile, and a collision happens away from the curb, it is often fair to say that the driver should have seen the pedestrian, and therefore should have avoided the collision. The fact that the pedestrian was outside the crosswalk was unrelated to the fact that the motorist did not see her. This is because if the motorist did not see the pedestrian prior to the strike then she wouldn’t have seen the pedestrian if she was in the crosswalk. Here, the pedestrian was simply in the wrong place at the wrong time; and under Maryland law, that is not negligence.

These are very hard cases, but not impossible. Before pursuing such a case, a client must know that there are no guarantees and that the odds of winning and losing are about equal.

By Craig I. Meyers, Esq.

You Will Not Be Happy With The Total Loss Value Of Your Car

Sunday, June 23, 2013

I tell every new client whose vehicle is totaled the same thing: “You will not be happy with the total loss value of your car.” It is true. When you add up your monthly payments, maintenance, subjective love of your car, and memories, no total loss value will do it justice.

For the most part, the companies that the insurers use to calculate the total loss value of vehicles are pretty accurate; not flawless, but relatively accurate. Nonetheless, I always review the total loss offer for my clients and try and get them a few extra dollars. This starts with going beyond the simple offer and obtaining a copy of the market report the insurer uses. The insurers don’t provide this to the claimant (that’s you) unless you ask. Most people don’t know how to read it anyway.

In reviewing the total loss report, the first thing I do is to make sure the insurer has the right year, make and model. It sounds obvious, but sometimes the insurer will mistakenly list your LE as a CE, or your 2009 model as a 2008. Next, I make sure they have listed all of the options; the insurer may forget to give you credit for fog lights, a sun roof, or an upgraded sound system. After that, I look at the “comps.” The insurers base their offers on how much other similar cars sell for you in your geographical area. I check the comps to make sure they have proper similar cars, but I also check to make sure they have the right geographical area. For example, if you live in Montgomery County, Maryland it is important to make sure that the total loss value is not based on Baltimore or Hagerstown pricing.

By following the above steps, you may sometimes increase the offer, but even with that, you won’t be happy with the offer. That is the simple truth of total loss value.

By Craig I. Meyers, Esq.

You Can’t Split Your Claims

Tuesday, June 18, 2013

I was in court a few weeks ago at the cashier’s window and I overhead a gentleman asking some questions on how to serve an insurance company. I generally try not to listen to other people’s business when in court, it can be personal, but on the other hand, I also try to help if I can. The gentleman was involved in a motor vehicle collision and was unhappy with the offer for the total loss of his vehicle. He was suing the insurance company for what he thought was the fair market value. I asked a few questions and learned that he was also injured as a result of the collision and had started a bodily injury claim with the same insurance company. He was nowhere near the statute-of-limitations, so I stopped him from filing his lawsuit.

The gentleman I spoke to in court that day was splitting his claim. Unless there is a law otherwise, you must file all claims arising out of a single event against the same person (or company) at the same time. That means if you have both property damage and bodily injury claims, you cannot sue for one, wait until the other claim ripens, and then file for the other. The effect is that after the first claim has been resolved, the other claim dies. It is important not to make such a mistake.

Of course there are statutory exceptions. For instance, you are permitted to file a PIP lawsuit separate from any other liability-based or uninsured/underinsured lawsuit. But, it is important not to extinguish one set of rights by pursuing another.

By Craig I. Meyers, Esq.

My Advice For Avoiding Car Crashes This Holiday Season

Friday, December 28, 2012

Stay off the road on New Year’s. When I was a teenager, my parents would not let me drive or ride in a car on New Year’s eve. I thought they were being over protective, and generally they were. Nonetheless, the advice is still good. According to the Maryland State Police, Maryland suffered 171 alcohol related fatal car crashes last year, with 6 fatalities between December 30, 2011, and January 3, 2012.

Also according to the Maryland State Police: “The holiday season is a particularly dangerous time of year. The National Highway Traffic Safety Administration reports more than 2,500 people lost their lives in crashes and 775 of those crashes involved impaired drivers in December 2010.” http://www.mdsp.org/Default.aspx

One of the big problems with driving on New Year’s eve is that no matter how prudent and careful you may be, the other driver could be drunk, tired, or distracted. No amount of defensive driving can protect you from the worst of the drunk drivers. The only fool-proof way to avoid the increased number of drunk drivers is to stay off the road, and keep your loved-ones home with you.

By Craig I. Meyers, Esq.

It’s A Fall And Injury, Not A Slip And Fall

Thursday, July 26, 2012

In addition to motor vehicle collisions, another type of case commonly seen by personal injuries attorneys is the “slip and fall.” First, I don’t call them slips and falls; that is too general and carries a negative connotation with some of the general public and especially with tort reformers. Plus, many “slip and fall” injuries are really trip and fall injuries or fall-in-a-hole-and-break-your-ankle-and-fall injuries. I call them what they truly are, a Fall and Injury. It is much more accurate.

Fall and Injury cases can be very difficult to prove, but not impossible. In the case of a slip on a wet surface, you may have to prove the following:

  1. What you slipped on;
  2. How the substance got there;
  3. How long the substance was there;
  4. Who owns or controls the area;
  5. Was there a warning;
  6. What is the standard of care for that area or defect; and/or
  7. Is there insurance.

Although late night television may joke about “slip and fall lawyers”, the truth is, the deck is stacked against you when you fall, and your attorney has a lot of work to do.

Owners of a business, for example, are liable for your fall and injury if you slip on a wet surface and they have actual or constructive notice of the wet surface and they fail to warn or protect the customer. They have actually knowledge generally, if they know the defect is there, or if they create the defect. Examples include employees of the company mopping a floor; if there is a spill that the company or its employees know of; if there is a hazardous condition such as a leaky refrigerator the company knows of. The store has constructive knowledge, meaning even though they did not know of a hazard, they should have known of the hazard due to its characteristics, if the hazard has been in place so long that they should have discovered it. An example is a spill in a grocery store that a surveillance camera shows was present on the floor for an hour, but no one cleaned it up.

Proving your case can be difficult. It helps to have an employee admit fault at the scene before someone tells them to be quiet. For example, after a patron falls at a restaurant, an employee says, “I am sorry, I spilled that water, but I have not had a chance to mop it up.” It also helps to have a video showing an employee mopping a floor, but without a wet floor sign. Often, the insurer for the store or business will deny these claims, and it will be up to a judge or jury to decide who is telling the truth.

Proving constructive notice can be even more difficult. Stores, businesses, and their respective insurers will NOT give you their video surveillance. To obtain this evidence, you must put the company on notice that they must retain it, and then subpoena the materials once you have filed a lawsuit. Many lawyers do not wish to take a case that can only be proven after a lawsuit is filed. It helps to have a witness who can testify to the condition and how long it is present. I was able to convince an insurance adjustor that a defect had been present because my client took a photograph at the scene. In that case, the client slipped and fell on a soft drink. The photograph, taken immediately after her fall, showed that the borders of the puddle had dried. I successfully argued that the drying of the puddle indicated that the puddle had been present for a prolonged time.

Even if you can prove who caused the spill or that there was knowledge, you must watch out for the insurer’s defenses. Remember, that in Maryland, if you contributed to your injury by just 1%, you are forever barred from recovering, no matter how serious the injury or how obvious the negligence of the other party. Because of that, insurers love to tell you that the defect or hazard was open and obvious. This means that the injured customer was negligent for not seeing the hazard and for not avoiding it. The problem with that defense is that people do not look down at their feet when they walk, nor are we required to. The Maryland Court of Special Appeals really hit the nail on the head in a 1997 decision in which it addressed customers looking at a store’s shelves rather than at their own feet:

The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy. He at least ought not to complain, if they look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers, or if their purchases so encumber them as to prevent them from seeing dangers which might otherwise be apparent. Patrons are entitled therefore to rely to some extent at least upon the presumption that the proprietor will see that the passage ways provided for their use are unobstructed and reasonably safe.

Tennant v. Shoppers Food Warehouse Md. Corp. , 115 Md. App. 381, 392 (1997).

In short, public opinion and prejudice against people that makes claims after a fall, and Maryland Law, make fall and injury claims difficult, but not impossible. Also, remember that the store owner has a special and elevated duty to find hazards and to make them safe. This, unsurprisingly, is not the same for municipalities and state or county owned property. I will address falls on sidewalks and the like in a separate entry.

By Craig I. Meyers, Esq.

I’m Not The Type Of Person To Sue

Wednesday, June 27, 2012

Are you affected by TORT REFORM? The short answer is “yes.” We all are, but how do you know? I know because my clients keep apologizing to me when you come into my office. It is very common for me to meet with a new client for the first time and hear, “I am not the type of person to sue anybody.” Already, the tort reform movement has you feeling self conscious about being repaid for medical bills and lost wages, and for being made whole. My general response is that of course you are not; this is the first time you have been injured. Doesn’t an injured person have a right to be made whole? The entire basis of tort law (torts are civil wrongs for which the law provides a remedy) is to make the injured party whole, meaning, to place them in the same position they were in prior to injury. Insomuch as we cannot go back in time and undo a wrong, we instead make up for it monetarily. Generally when one is injured, one is entitled to recover the cost of medical treatment, reimbursement for lost wages, reimbursement for damaged property, future care if required, and payment to offset the pain and suffering experienced by the injured party. These are not new rights. The basis of these rights, and the foundation of tort law, is over 3,000 years old, and arising directly from the Bible. See Exodus chapt. 21 (Mishpatim). You should not apologize for being injured. But, that is what tort reform does. But what is tort reform?

From a trial lawyer’s standpoint, the answer is that it is a national movement organized to prevent my clients from being made whole. It is a national movement organized by very highly paid lobbyists for insurance companies and similar entities, that wish to protect their interests to the detriment of my clients. It is a national movement that can afford to pay for billboards, TV commercials, radio ads, time with politicians, and a host of other very expensive and effective techniques to make you think that anyone who is injured is faking it and just out to get money. It is a national movement backed by large corporations that has changed our laws stripped us of our rights.

Tort reform whether here in Maryland, or in any other state functions by limiting your right to initiate a claim, and then when you get over that hurdle, it caps your right to collect damages. Tort reform stops you from being made whole. Examples include mandatory mediation clauses in contracts, choice of forum clauses, and the Maryland Health Care Alternative Dispute Resolution Office. Many people don’t know that when they sign a consumer contract, whether it is for mobile phone service, a credit card, or even replacement windows, the small print will often include a clause that says that the consumer cannot sue them. Instead, they must submit to an arbitrator, outside the court system. That may seem fair at first, figuring an arbitrator is a professional, the arbitrators do hundreds if not thousands of these for the credit card company, how many do they do for you? Why should you have to give up your right to a trial or trial by jury just to get a cell phone? The purpose is to shift the balance of justice from you to the large corporation. Also, you may not know it, but if you are permitted to file a lawsuit, your Maryland contract dispute may have to be brought in a Delaware court. The purpose is twofold. First, the corporation chooses a forum that is favorable to the corporation. Second, many people will not file suit hours away from their home. It is a win-win situation for the corporation. After all, you signed the contract. Didn’t you read the fine print? But what other choice did you have? If all of the mobile phone providers have the same clause, and you cannot negotiate the terms, what can you do?

Many people do not know that you cannot sue a doctor in Maryland for malpractice until you have first filed a claim in the Maryland Health Care Alternative Dispute Resolution Office (HCADRO). The HCADRO is a State agency which operates out of the William Donald Schaefer Tower in Baltimore. The sole purpose of the HCADRO is to protect doctors, not injured patients or the families of deceased patients. After filing with the HCADRO, you must then file a Certificate of a Qualified Expert for each specialty involved in the claim, stating that the doctor you wish to sue violated a duty owed to the patient, and what that violation was. The State further limits the doctors that you are permitted to use for your Certificate. The doctor you use must be a clinician, the doctor cannot have been retired for more than 5 years, and there is a limit to the amount of forensic work the certifying doctor performs. There is no other profession in Maryland with this type of State protection.

Other ways that tort reform affects you is with caps. Maryland for example has a cap on pain and suffering. No matter how bad your injury is, if your state has a cap, you cannot collect. For example, if today, you are waiting for bus in Maryland at a marked bus stop, on the sidewalk, and you are run over by a tractor tailor, and you are paralyzed from the neck down, the most you can recover for pain and suffering is $755,000.00. Most people would find offensive. The purpose of tort law, or personal injury law, is to make people whole, these caps simply protect negligent parties, mostly large corporations, from taking responsibility for their negligent actions.

Another tactic by tort reformers is to damage the reputation of trial lawyers. If you go online, you can find a host of websites illustrating frivolous lawsuits and stories of how trial lawyers are ruining the economy. If you, however, research these websites on snopes.com or similar sites, you will find most of these stories are false. They are made up by tort reformers to libel trial lawyers and convince the public that there is a crisis, and that tort reform is needed. In reality, it is the trial lawyers, not the tort reformers, that are concerned with the safety of the public. It was trial lawyers that uncovered the fact that Ford had done a cost benefit analysis on the Pinto and had decided it was cheaper to pay off families of those killed or injured in the vehicles rather than making their cars safe. It is trial lawyers that keep doctors, businesses, and pharmaceutical companies in check, reminding them that there are consequences to their negligent actions.

When a new client comes into my office and tells me that they are not the type of person to sue someone for an injury, I think to myself, “Lucky for you, I am.”

By Craig I. Meyers, Esq.

That Was So Long Ago

Wednesday, May 09, 2012

One of the phrases that I hear at trial and at depositions that makes me cringe is: “That was so long ago.” Everyone says it: Plaintiffs, Defendants, witnesses, everyone. It doesn’t matter what the person’s role in the case is, or whether they have been properly prepared by their attorney, whether they have no attorney, or even if they have been “coached.” Eventually they say it: “That was so long ago.” But what does that mean?

Essentially when a person tells you that an event happened “so long ago,” they are apologizing or at least trying to explain a perceived defect in their memory. If you can imagine the questioning of Ms. Smith, a victim of a rear end collision by a Defense attorney:

Attorney: On the date of the accident, January 2, 2010, where were you going and where were you coming from?

Ms. Smith: I left my home in Gaithersburg and I was traveling to work in Rockville.

Attorney: At the time of the collision, what road were you traveling on?

Ms. Smith: I was traveling on Rockville Pike.

Attorney: What was the nearest cross street?

Ms. Smith: Wooton Parkway, that is where the collision occurred.

Attorney: Was your vehicle moving at the time of impact?

Ms. Smith: I was standing still, stopped in traffic at a traffic light, when I was rear ended.

Attorney: How many vehicles were in front of you when you were stopped at the traffic light?

Ms. Smith: Oh, that was so long ago, I don’t remember.

Ms. Smith was doing just fine in describing the collision until she uttered that phrase. Most people, unless they are the first or second vehicle at a traffic light, generally do not take note of, or if they do, do not recall the number of vehicles in front of them at any time. Think about the last traffic light you stopped at, how many cars were in front of you? What was the make and model? What color? You can’t remember. Most people, if not the first or second vehicle, don’t forget how many cars were in front of them, they never actually counted and therefore never knew. You cannot forget that which you never knew. The question asked of Ms. Smith is a very common one, and a very common type of question asked by defense attorneys. It requests information that almost no one can recall. That way, the Defense attorney can later go back and point out to the judge or jury how poor the Plaintiff’s memory is and argue that her credibility is suspect. Instead of simply stating, “I don’t remember,” which would have been an appropriate response and likely only reflected on a single fact, she tainted her entire testimony.

By stating that the collision was a long time ago, Ms. Smith has called into question her memory of the entire event if not the next year of treatment and related pain and suffering. If it was so long ago that she cannot recall, then perhaps her testimony regarding her injuries and experiences are incorrect. Perhaps her testimony regarding her hourly wage or the time she missed from work is suspect. Perhaps a judge or jury should discount her testimony in general. Perhaps, if she can’t remember this allegedly large event in her life, it wasn’t really that bad, and you should not award monetary damages to her. It is a terrible sentence to utter.

A decent Plaintiff’s attorney can rehabilitate a witness by asking details of relevant events related to a client’s injury, but it may not erase the full damage. This issue then begs a few questions. Why did it take so long to get Ms. Smith in front of a judge, jury, or to a deposition? What could she have done prior to her testimony to refresh her recollection?

The reality is that the legal process can take a long time. In a simple case, a person is rear ended and goes to a doctor. She treats with the doctor for four months and is released. Her attorney collects her records and waits a short while to make sure she is okay and that she will not have to go back to the doctor. After that short cooling off period the attorney sends a demand package to the insurer. The insurance company takes two months to evaluate the claim and then makes a low offer that is not acceptable. The attorney files a lawsuit and is give a trial date in the District Court four months after filing. A year has passed. If this case were more complex, the client may have treated for a year or longer. Instead of filing in the District Court, she filed in the Circuit Court and received a court date 18 months from the filing date. It is not unusual for a Circuit Court case to go to trial three years after the actual injury. “That was a long time ago.”

How do you keep the information fresh? After a collision, immediately after, the client should record what happened. This does not mean giving the insurance company a recorded statement. Instead, write a letter to your attorney explaining everything that happened, or sit down with your attorney and let your attorney take notes as you describe everything in detail. You do not want to produce a document that will have to be turned over the Defense attorney later, instead, make all written recordings in a format that is for your attorney only. It will be protected by attorney client privilege. Also, make sure you tell your medical providers EVERTHING that is wrong. Tell them if you cannot sleep, tell them if you have pain trying to put on your socks. If you don’t tell the doctor, then it is like it didn’t happen. This way, you can go back later and review your letters to your attorney, you can read your medical records, and it will refresh your memory. If you have experienced a severe injury or have prolonged pain, keep a diary. Remember, however, that this diary may find its way into the Defense attorney’s hands. You should consult with your attorney before doing that. An alternative is to essentially keep a diary of your pain and suffering, but instead of a notebook, send the entries to your attorney as emails. These are communications protected by attorney client privilege and do not have to be turned over to the Defense attorney.

The key to remembering important facts for depositions or trials is to not forget in the first place, or to give yourself the tools required to refresh your memory later. If you can’t remember, just say so, but don’t apologize for forgetting and don’t feel the need to explain yourself. We already know, “That was so ago.”

By Craig I. Meyers, Esq.

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Martin


"I received the check today. I could not believe it until I saw the check. Thank you so much. You have improved my family's quality of life tenfold."

Mike F.


"These guys go above and beyond! They always have your best interest in mind."

Mike W.


"You have been kind throughout this process and I appreciate your professionalism as well as your gentle concern. Thanks for helping us and all the others who need your legal expertise. We are grateful."

Nancy F.


"Thanks to Mr. Shultz's aggressive and professional work ethic style I was able to receive the medical services and compensation pertaining to my case."

Navdeep C.


"I can honestly say this firm is simply TOP NOTCH! They not only have handled countless cases for my members that require their services, they also have gone well beyond their "scope" to help some of my folks in other areas of need. "

Rick H.


"The attention and professional care the staff has taken toward my needs has always been excellent. I have no complaints nor worries that my issues discussed are not addressed."

Tim T.


"I just got off the phone with Craig and let him know how thankful we are to you, him and Ken for all your efforts – you are all really terrific to work with!"

Val K.


Locations Throughout Maryland, Virginia & Washington DC

Gaithersburg Office

481 N. Frederick Avenue, Suite 300
Gaithersburg, MD 20877
301-670-7030 / 800-248-3352
Fax: 301-670-9492

Lutherville Office

1301 York Road, Suite 600
Lutherville, MD 21093
410-769-5400 / 800-248-3352
Fax: 410-769-9200

Frederick Office

30 W. Patrick Street, Suite 105
Frederick, MD 21701
301-668-2100 / 800-827-2667
Fax: 301-668-2000

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