Posted on June 01, 2015 in Personal Injury

In many personal injury lawsuits, the attorney representing the victim must prove that the victim experienced conscious pain and suffering. Under Maryland law, the victim’s lawyer must prove: (1) that the defendant’s negligence was a cause of the incident; (2) that the victim lived after the incident; and (3) between the time of the incident and the time of death, the victim suffered conscious pain.

Sometimes, proving conscious pain and suffering is easy because a witness saw it, heard it or the medical records document the suffering through complaints of pain or the need for pain medication. But sometimes, that evidence is lacking. In such situations, courts allow evidence of conscious and suffering if there is a "reasonable inference" of it, so I use expert witnesses to prove such a claim. These can be neurologists, medical examiners, etc.

Recently, in a case where a man’s car was struck by a much larger truck, I used a medical examiner to prove that, during the 5-10 minutes after the collision when witnesses said the man was alive, he was in fact consciously suffering. A medical examiner is a good choice to use in such a case because of such an expert’s knowledge of what injuries do to a person and how a person reacts to injuries. In this particular case, using the medical examiner as an expert, the jury awarded $675,000 for the victim’s suffering.

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 Posted on May 30, 2015 in Appeals - State & Federal

We all know the little tricks to stuffing the most content into the allotted number of pages of your appellate brief (currently 50 for the Court of Appeals and 35 for the Court of Special Appeals) – decreasing the line spacing, decreasing the margins, decreasing the kerning, decreasing the height of the text, etc. Well, you’re not fooling anybody: As noted by the Maryland Standing Committee on Rules of Practice and Procedure in its 187th Report, "Appellate judges, in Maryland and elsewhere, are regrettably familiar with those tactics and legitimately complain about them." The Committee has finally had enough, and is urging the Court of Appeals to amend the Maryland Rules to combat the problem.

First, the Report calls for replacing page limits for briefs with word limits (unless you’re still using a typewriter, in which case page limits still apply as set forth in a new Md. Rule 8-112). Under the proposed Rule 8-503, and based on the Committee’s estimation of 260 typed words per page, a principal brief wouldn’t be able to exceed 13,000 words in the Court of Appeals or 9,100 words in the Court of Special Appeals (except when the appellee is also a cross-appellant, in which case its gets 13,000 words). Other filings will come with their own word limits: The Court of Appeals would impose a 6,500 word limit on motions to dismiss, reply briefs, and amicus curiae briefs (except for writs, in which case 3,900 is the max), while those limits in the Court of Special Appeals would be 2,600 words for the reply brief and 3,900 words for the others. (One other quirk: In the Court of Special Appeals, the response of a cross-appellee could be 13,000 words if it also contains a reply to the appellee’s response.)
There’s a bit of an honor system to deter cheaters – attorneys will have to include a certification of the word count that tracks provided language. Sound familiar? You may recognize this scheme as in line with the word-limit option of the Federal Rules of Appellate Procedure, which the Rules Committee used as a foundation for the recommendations.

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 Posted on May 14, 2015 in Personal Injury

Another fatal train accident has taken place on the east coast. This one occurred yesterday in Philadelphia and the preliminary investigating seems to indicate that the cause of the accident was conductor error. According to the unnamed sources, the so called "black boxes" which were recovered from the crash scene indicate that the train was travelling at speeds in excess of 100 miles per hour. The accident occurred as the train attempted to negotiate a curve in the tracks where trains are not to exceed 50 miles per hour. So far, eight people are confirmed dead and hundreds more have been injured. There is a criminal investigation underway.

At Silverman Thompson, we have been handling train accident cases since 1996 when we successfully sued on behalf of the family of a student who was killed in the tragic MARC Train accident in Silver Spring Maryland. Since that time we have handled dozens of cases involving train derailments or trains striking vehicles or pedestrians. These cases are extremely complicated and require a deep understanding of both Federal and State law in this area. Please contact us for further information.

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 Posted on May 04, 2015 in Criminal Defense

The charge against the officers of 2nd Degree Depraved Heart Murder is a real stretch in the Freddie Gray Case. Manslaughter is the most appropriate charge under these facts. Here is why:

Second Degree Depraved heart murder is the killing of another person while acting with an extreme disregard for human life. In order to convict, the state must prove (1) that the conduct of the defendant caused the death, (2) that the defendant’s conduct created a very high degree of risk to the life of Freddie Gray, and (3) the defendant, conscious of such risk, acted with extreme disregard of the life-ending consequences.

Analysis:

There is no "intent" to kill or harm requirement for this charge. The term "depraved heart" means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must realize the risk his behavior has created to the extent that his conduct may be termed willful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

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 Posted on May 01, 2015 in Criminal Defense

Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State’s Attorney, I will lay out what to expect in the next 30 days.

Charged by Criminal Information:

There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State’s Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial "rubber stamp" or independent finding of probable cause.

As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.

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 Posted on April 22, 2015 in Appeals - State & Federal

As the appellant in the Maryland appellate courts, when should you file your brief? Currently, it’s within 40 days after the clerk notifies you that the court has filed the record. Sounds easy enough, except the current Maryland Rules don’t actually require the clerk to send such a notice. In fixing that little problem, however, the Rules Committee is considering working in a smidge more time for practitioners to get their briefs in.

Current practice of the appellate court clerks is to, after the record has been filed, issue notice to the parties with a date before which the appellant should file the brief. Proposed changes to Md. Rule 8-412(c) would codify this custom, providing that, "Upon receipt and docketing of the record by the Clerk of the appellate court, the Clerk shall send a notice to the parties stating (1) the date the record was received and docketed and (2) the date by which an appellant other than a cross-appellant shall file a brief conforming with 8-503." However, while the current version of Rule 8-503 requires the appellant to file its brief "[w]ithin 40 days after the clerk sends notice of the filing of the record," the tweak to Rule 8-412(c) would make that deadline sometime after 40 days: "Unless otherwise ordered by the appellate court, the date by which the appellant’s brief must be filed shall be no earlier than 40 days after the date the Clerk sends the notice" (emphasis added).

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 Posted on April 03, 2015 in Personal Injury

Maryland attorneys are eminently familiar with the State’s Local Government Tort Claims Act (LGTCA), which imposes a limitation on liability for the local government entity of $200,000 for each individual claim ($500,000 aggregate for claims that arise from the same occurrence). This limitation on liability operates to strictly limit damages recoverable from the local government entity regardless of the extent of harm experienced by the plaintiff. And now, with today’s Court of Appeals’ decision in Espina v. Jackson (No. 35, Sept. Term 2014), that damages cap applies even in the face of egregious constitutional violations because such "constitutional torts" fall within the LGTCA’s "tortious acts or omissions" terminology.

Espina involved survival and wrongful death actions filed against Prince George’s County and its police officer employee, Steven Jackson. Espina’s surviving spouse and son sued PG County and Officer Jackson, alleging assault and battery, wrongful death, and violations of Espina’s and the son’s constitutional rights. Following 3 days of deliberation, the jury returned a verdict in favor of plaintiffs and awarded compensatory damages totaling $11,505,000. No punitive damages were awarded.

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 Posted on March 30, 2015 in Real Estate

Silverman|Thompson|Slutkin|White real estate litigation attorneys succeeded in obtaining summary judgment on behalf of the private owner of a project-based Section 8 housing project in a breach of lease action pending in the Circuit Court for Baltimore City. The case involved a determination of whether projects funded by the Department of Housing and Urban Development may proceed with eviction upon a showing that drug-related criminal activity had occurred. Maryland law previously required that, after adducing evidence that a tenant had breached their lease by engaging in drug-related criminal activity, the landlord also prove that the breach was material, substantial and warranted eviction, thereby allowing a judge or jury to countermand the landlord’s decision to evict. The ruling by the Honorable Laurence P. Fletcher-Hill, which has wide implications for all federally-funded housing projects, held that Maryland law is preempted by federal law to the extent it would permit a judge or jury to review a HUD-assisted landlord’s decision to proceed with the eviction of a tenant who has committed drug-related criminal activity. As a result, if a federally-assisted landlord can prove by undisputed fact that a tenant has engaged in drug-related criminal activity in or near the leased premises, the landlord has established grounds for eviction as a matter of law and is entitled to terminate the lease.

Avery Strachan, a partner in the firm’s real estate litigation department, represented the firm’s client along with Kerri Smith, an associate in the real estate litigation department. Partner Bill Sinclair argued the Motion for Summary Judgment before Judge Fletcher-Hill. They can be reached at 410-385-2225 or at astrachan@silvermanthompson.com; ksmith@silvermanthompson.com; or bsinclair@silvermanthompson.com.

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 Posted on March 27, 2015 in Driving Under the Influence

Defendants in DUI cases who have commercial driver’s license pose a unique set of challenges and considerations for Maryland DUI Attorneys. I have blogged often about the importance of selecting an attorney who specializes in DUI/DWI defense. Unfortunately, all too often we see attorneys with little or no experience with these types of cases appearing in court on these cases. Because of their lack of experience, these attorneys often make mistakes that can have serious consequences for their clients.

Often these attorneys make simple mistakes that no experienced DUI/DWI attorney would ever make. I was representing a client in the District Court of Baltimore County a few days ago. While waiting for my case to be called I witnessed an attorney whom I had never seen representing a client in a DUI case at all much less one involving a defendant with a commercial driver’s license. I found out later that this attorney was a so called "general practitioner" who spends the majority of his time handling divorce and personal injury matters. In other words, he was NOT a DUI/DWI specialist. As the reader may have guessed, it did not go well for the defendant. Here are the facts:https://criminal.silvermanthompson.com/brian-g-thompson.html

The client did possess a commercial driver’s license but when he was pulled over for exceeding the speed limit by 15 miles per hour, he was operating his personal vehicle. When the Trooper approached the defendant he smelled of alcohol, had a flushed face and had slurred speech. The Trooper asked him to step out of the vehicle to perform field sobriety tests. In the opinion of the officer, his performance on the field sobriety tests indicated that he was impaired by alcohol. He was taken into custody and once back at the barracks, agreed to take the breathalyzer. The test result was .11 grams of alcohol per 210 milliliters of breath.

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 Posted on March 02, 2015 in Business Counseling, Litigation & Transactions

Civil litigators know that the impending bankruptcy of an opponent is bad news for any lawsuit that’s ongoing or in the works: Bankruptcy operates as an automatic stay of any state-court litigation against the debtor until the bankruptcy gets resolved. Oddly, however, the precise effect of such a stay was an open question in Maryland up until last month. With Kochhar v. Bansal, Md. Ct. Spec. App., Sept. Term 2014, No. 435 (Feb. 27, 2015), the state now joins the majority of other jurisdictions in deeming any and all proceedings and filings after a bankruptcy stay as void, and not merely voidable.

In Kochhar, after Baljit Kochhar and her daughter Sonia filed bankruptcy petitions, four members of the Bansal family – who previously obtained judgments against Baljit for defaulted loans – filed a lawsuit in the Circuit Court for Montgomery County against them, alleging that Baljit had fraudulently conveyed property to Sonia to avoid the judgments. The next month, the Kochhars’ bankruptcy case was dismissed and the automatic stay was lifted. Sonia thereafter moved to dismiss the circuit court case on the grounds that, because of the bankruptcy stay, it was a nullity at the time it was filed. An order of default was entered against Baljit.
The Bansals opposed, arguing that the filing of the complaint during the bankruptcy stay was merely voidable, and could be pursued now that the stay had been lifted and no further action had occurred in the case during the stay period. The court denied the motion and later entered default against Sonia as well. Based on the defaults, the court found that the conveyances had been fraudulent, set them aside, and entered judgment against the Kochhars jointly and severally for more than $15,000 in attorneys’ fees.
Sonia appealed, contending again that the entire circuit court case was void at the time it was filed. Turns out, this issue has come up fairly regularly before in a number of jurisdictions elsewhere, so it was up to the Court of Special Appeals to pick a side – void (the majority view, including in federal courts, and the view taken by the U.S. Bankruptcy Court for the District of Maryland), or voidable (the minority view). The Court of Special Appeals first tried to glean the answer from the Court of Appeals’ decision in Klass v. Klass, 377 MD. 13, 22 (2003), a divorce matter in which a default judgment was entered against the husband after he had filed for bankruptcy.
There, the Court of Appeals found that – in accord with the prevailing treatment by federal bankruptcy courts – a divorce case involves some exceptions to an automatic stay, including fixing alimony and child support, awarding attorneys’ fees to the wife and the guardian ad litem, dissolving the marriage, and establishing custody and visitation. However, the Court held, the monetary award, reduction of the award to judgment, entry of an order directing payments to the wife, and giving the wife use and possession of the couple’s car were all subject to the stay and improperly based upon unanswered discovery requests that, because of the stay, were also void when they were propounded. The Court of Special Appeals believed this consistent with the majority view that the state court loses jurisdiction over the property of a debtor when the petition is filed, meaning that (absent some exception) any later proceedings are void ab initio.
As applied to the Bansals’ complaint, the bankruptcy stay took away the circuit court’s jurisdiction, making the filing of the lawsuit a nullity at the time it was brought. The lift of the stay didn’t permit the Bansals to resume litigating the complaint, because the complaint was never legally operable in the first place. (Note, however, that a bankruptcy court can also annul a stay rather than terminate it, which has the effect of making all of the bankruptcy proceedings a nullity, such that the stay would have never been effective in the first place. That didn’t happen here; if it had, the Bansals could have picked up their litigation because the stay would have been treated as if it hadn’t actually occurred.) In the end, Kochhar highlights just another reason why civil litigators are wise to keep themselves informed as to when adverse or liable parties sink too close to financial rock bottom.
For further information, please contact Chris Mincher at cmincher@silvermanthompson.com or at 410-385-2225.

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