Articles Posted in Lawyer Blogs of Interest

These days everyone literally lives on and through their smartphones. We take them everywhere, and we are constantly on them checking email, texting, calling, social media, etc. Whether you realize it or not, your cell phone is tracking almost everything you do all day long and storing that information as data.

Anyone who watches reality crime shows on TV knows that cell phone records have become critically important as evidence in criminal proceedings. But cell phone data has also become pivotal in criminal cases, civil lawsuits, auto accidents, and personal injury cases.  Cell phone providers maintain logs of all user actions, primarily for billing purposes. Every call, text message, and internet activity is timestamped.

In this post, we will explain how you can go about getting cell phone records by subpoena (and other means) and how to use these records to your advantage in a civil lawsuit.

Every aspect of litigation is based on time. Litigants only have a certain number of days to respond to motions, answer discovery, or serve a summons. Perhaps the biggest time-related concern in litigation is the statute of limitations. The statute of limitations is the due date for a lawsuit. If a claim is brought outside the statute of limitations, it is generally almost always barred and must be dismissed.  Americans are now appreciating more how harsh limitations can be seeing Bill Cosby not being asked to account of the allegations against him.

How Statutes of Limitation Work

A statute of limitations should be thought of more of a time frame and less of a deadline. The right to bring legal action accrues whenever the subject matter of the claim occurred. For example, in a car accident case, the right to bring a claim begins right when the accident occurred. In a medical malpractice case, the period begins when the malpractice occurs or when the victim discovers it. Once that period has officially started, the clock on the potential claim has begun ticking. The relevant statute of limitations will then lay out a period during which that claim must be brought. For example, in Maryland, the statute of limitations on most personal injury actions is three years. This means that a lawsuit for a car accident must be brought within the three years that begins when the accident occurs. If the case is not brought within that time, it can never be brought.

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This blog deals with big personal injury lawsuits across the country. These lawsuits typically involve class actions, multidistrict litigation, and mass torts against corporations for their defective products, medications, or their general negligence. But we also talk about motor vehicle accident and malpractice claims, too.  For all of these cases, you are almost invariably going to need an expert to testify if you want to get your case to a jury.  Experts are obviously different from the typical fact witness. This post should give you a basic understanding of the nuances of expert witnesses and testimony.

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Once a jury hands down their verdict, the case is over, right? Sometimes, but not always. At the close of trial, both sides generally have the ability to appeal certain issues or things that may not have gone their way. Most important to remember here though: parties can only appeal legal issues, not factual ones. So an appeal should not be thought of as another opportunity to try a case. Instead, appeals are there to correct mistakes or misapplications of law. Should they determine that a new trial is warranted, appeals courts have the ability to order one. But they are strictly there to determine legal issues, not factual ones.

Framework For Appeals

Every state is different, meaning every court system is different. Since this blog covers issues pertaining to the national personal injury community, I will use the federal appeals process to lay out how things work. Granted, the federal appeals courts share some similarities with many states (especially Maryland), so this should give you an idea of how things work from state to state.

The federal court system is three-tiered. There are the trial courts, which are referred to as Federal District Courts. There are the intermediate appeals courts, which are called Federal Circuit Courts. And the “court of last resort” in the federal system is the Supreme Court of the United States (SCOTUS). The state of Maryland has a similar system with trial courts, an intermediate appeals court, and a state court of last resort.

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If you are a plaintiff in a lawsuit, you are asking the court to do something for you. In most personal injury cases, you are asking the court to award damages in your favor, typically by way of the jury. Throughout the lawsuit, there will be other “lesser” things that you will ask the court to do. For example, perhaps you want the court to exclude certain evidence, protect certain information in discovery, or even dispose of the case without ever having to set foot in a courtroom. Considering that courts are formalized tribunals, you cannot just make a call or send them a letter. This is where a motion comes into play.

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Jurisdiction and venue often arise in the context of “forum shopping” when filing lawsuit.

Unquestionably, it is better to file a lawsuit in some places compared to others and good lawyering requires careful consideration of venue and jurisdiction and the distinction between the two.

In many jurisdictions, like Maryland and Virginia, one or two places tend to be the preferred stop for plaintiffs’ lawyers for personal injury lawsuits.

To better understand  “forum shopping,” you have to understand the concept of a “forum” in the first place, which requires an understanding of the difference between personal jurisdiction and venue. Before we distinguish jurisdiction from venue, let’s talk about them both.

What Is Jurisdiction?

Personal jurisdiction is an incredibly important piece of the puzzle when putting together a lawsuit. It boils down to is a court’s ability to exercise its power over an entity, whether that is a person, business, trust, etc.

For example, say you are a Maryland resident, it would feel unfair if an Oklahoma court could render a judgment over you if you have no connections to that state. That is where the doctrine of jurisdiction comes into play: it is all about the court’s ability to bring you under its power.

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The American civil justice system allows for one type of recovery in personal injury cases: damages. Damages, or compensation, can manifest themselves in a few different forms in personal injury cases. People tend to throw around terms such as “general damages,” “special damages,” “non-economic,” and “economic” damages, so this post should help you differentiate between these various types of damage awards.

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Discovery is the most important part of civil litigation (apart from the trial.) Discovery also tends to be the most expensive part of civil litigation. This is often a long and exhaustive process that entails most of the legwork in litigation. At the end of the day, though, discovery is really only about one thing: getting information from the other side to use at trial.

Discovery: An Overview

When one party sues another, they have to (or at least should) have information that supports their claim. Granted, they do not need to prove their case in the complaint. But going in they should already have enough information to know that their claim has a basis in both law and fact. Once the complaint is filed, they can fine tune the information that they have and supplement it using discovery. Discovery should be thought of less as one amorphous thing and more so as the combined efforts of various discovery devices. More on that later.

One of the reasons discovery can get expensive is because its scope unbelievably wide (although it is getting more narrow of late).  Parties can utilize the discovery process to find any piece of information that is reasonably calculated to lead to the discovery of admissible evidence. And just because the information sought is not admissible in and of itself, it is still discoverable on the chance that it might to lead to something that is. Information obtained during discovery will also be public record if it makes its way into the court file, so there is also a potential that a person or corporation may have to put personal or sensitive information out there. There are, of course, ways to shield this from happening, but a party will have to show a judge that the information should be protected before any information will be shielded. The discovery process also does not go on forever. A judge will set out a schedule, during which discovery can be obtained. If information is discovered after the final date, then it cannot be utilized at trial.

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Big changes are coming to the Federal Rules of Civil Procedure. A few of these changes make some pretty significant amendments to language in the discovery rules. Depending on how they are applied and interpreted, there is real potential for a reduction in the amount of information that can be discovered, which would reduce the cost of litigation across the board.

The Changes 

Here’s a quick breakdown of the changes that were approved by the Supreme Court in April:

1. Getting rid of the language in Rule 26 that allows for discovery of information “that may lead to the discovery of admissible evidence.”
2. Relying on a balancing test to limit the scope of discovery.
3. Making fee-shifting a bigger deal when handling protective orders.
   

   Will amendments to the FRCP change the landscape of discovery in federal courts?

4. Requiring objections to requests for production to state if documents are actually being withheld as a result of the objection.
5. Making changes to how electronically stored information (ESI) is preserved and destroyed.
6. Getting rid of the appendix of forms.
7. Reducing the time to serve a summons after filing a complaint by 30 days.
8. Reducing the time for a court to enter a scheduling order by 30 days.

What This Means For Discovery

Changes in discovery rules is a big deal.  We have been all playing under the old rules for a long time now.  This is a big change.  Discovery is ALWAYS a battlefield in civil litigation. We are all looking for some angle to advance our case in a way that increases (plaintiffs, the good guys) the value of the case.

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I’ve written a lot about how personal injury lawyers have to and should deal with medical and other liens. When I go back and look at the web traffic generated by these posts, it typically gets low page views, probably from the same 20 lawyers that read all of our nitty-gritty details on handling personal injury cases stuff.

Not so with Haro v. Sebelius, a new opinion from Arizona that may dramatically alter the relationship between Medicare (and Medicaid, but I lump Medicaid into Medicare for grammatical ease). I think the big difference in the impact of Haro v. Sebelius is something car accident and medical malpractice lawyers are feeling right now.

Here’s the deal in a nutshell. Haro v. Sebelius is a lawsuit filed by two Medicare beneficiaries for whom Medicare benefits were paid for treatment that was ostensibly needed as the result of a car accident. Interestingly, the car accident lawyer in this underlying case is also a named plaintiff.

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