Thursday, December 9, 2010

A Good Lawyer Knows the Judge

There is a saying that a good lawyer knows the law but a great lawyer knows the judge. Allow me to toot my own horn.

Recently I represented one of four codefendants in a massive shoplifting spree. All four codefendants had lawyers and all four cases were set on the same trial date. The prosecution offered guilty pleas to two counts of theft and would recommend probation to the judge. Three of the defendants on the advice of their attorneys took these guilty pleas expecting to get probation.

I investigated the evidence further and was very concerned with what this particular judge would do with a shoplifting spree of this nature. The three defendants who were pleading guilty would admit to going through no less than four different stores in a one-hour time span stealing over $1500 worth of merchandise. Even though the prosecution was recommending probation I was concerned that the judge would incarcerate these other defendants. My client was also a green card holder and a felony conviction, which was offered, would have exposed him to immigration consequences including deportation.

Based on my investigation and uneasiness I elected to go to trial. Before my client's trial began the other defendants actually pled guilty in front of the judge and each defendant received either six months in jail or three months in jail and the judge set an appeal bond of $50,000. This basically guaranteed that these defendants would remain in jail while the matter worked its way through the system. I was very pleased not to take the guilty plea on behalf of my client.

Based on the fact that the judge had now heard three guilty pleas and was quite familiar with the "facts" of the case it was decided that this judge might not be able to fairly hear this case. Because we elected a trial we were sent to a different judge for the trial.

In my case my client was charged with six counts of various forms of theft. After the trial my client was acquitted of five of the six counts. On the only count upon which he was convicted in my case, he was sentenced to 30 days of jail which is certainly much better than three months or six months in jail. Further, my client's appeal bond was only $4000 instead of $50,000. Knowing what the judge might do and fighting for my client saved my client a great deal of jail time.

Wednesday, December 8, 2010

False Peace Order Accusation

My client was accused of stalking a stranger. She claimed that my client was following her for approximately 10 minutes at 12:20 PM on November 29 in Silver Spring. She gave a very detailed description of the stalking and harassing activity. She stated further that the next day she saw him at the convenience store and again he was staring at her and bothering her. On cross examination I pinned her down as to exactly the time and place where the original stalking and harassing occurred.

My client testified that he was in a staff meeting at that date and time in College Park. I had his boss and the secretary also testify that he was there. Clearly the judge found in our favor and in his written decision stated that "there was no evidence of anything" that the respondent did. I don't think that the petitioner was mentally unstable or lying but clearly made a case of mistaken identity. It cost my client money, time and potentially reputation.

There may be a mechanism to clear his reputation. If you knew my client's name you could find him on the Maryland Judiciary case search website. My client is an important man with national security clearance. Maryland's Gen. assembly ennacted a statute which took effect on October 1, 2010 providing for sealing or shielding of cases of this nature which result in either dropped charges or a dismissal. If you have a peace order or domestic violence petition against you and it is dismissed or you win in court, you should look into having the case sealed were shielded from public view. I would be happy to assist you.

Sunday, November 21, 2010

Can I Expunge My Maryland Driving Record?

It is not unusual for a client to ask me whether they can expunge their Maryland driving record. The general assembly has created a statute directly on point and it is below. Please note that this statute is from 2010 and by the time you look at this may not be up to date. It should give you a pretty good general idea whether you can have your driving record expunged. If you have any questions you can contact me for further advice.

Section 16-117.1 Expungement of certain driving records

(a) "Criminal offense" defined.- In this section, "criminal offense" does not include any violation of the Maryland Vehicle Law.

(b) When Administration may expunge records.- Except as provided in subsections (c) and (e) of this section and in Subtitle 8 of this title, if a licensee applies for the expungement of the licensee's public driving record, the Administration shall expunge the record if, at the time of application:

(1) The licensee does not have charges pending for allegedly committing a moving violation or a criminal offense involving a motor vehicle; and

(2) (i) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 3 years, and the licensee's license never has been suspended or revoked;

(ii) The licensee has not been convicted of a moving violation or a criminal offense involving a motor vehicle for the preceding 5 years, and the licensee's record shows not more than one suspension and no revocations; or

(iii) Within the preceding 10 years:

1. The licensee has not been convicted of nor been granted probation before judgment for a violation of Sec. 20-102 or Sec. 21-902 of this article;

2. The licensee's driving record shows no convictions from another jurisdiction of a moving violation identical or substantially similar to Sec. 20-102 or Sec. 21-902 of this article; and

3. The licensee has not been convicted of any other moving violation or criminal offense involving a motor vehicle, regardless of the number of suspensions or revocations.

(c) When Administration may refuse to expunge.- The Administration may refuse to expunge a driving record if it determines that the individual requesting the expungement has not driven a motor vehicle on the highways during the particular conviction-free period on which the request is based.

(d) Required expungements.- The Administration shall expunge from its driver record data base the driving record of an individual or a probation before judgment disposition of an individual:

(1) Who has not been convicted of a moving violation or criminal offense involving a motor vehicle for the preceding 3 years;

(2) Who has not been convicted of, or been granted probation before judgment for:

(i) A violation of Sec. 20-102 of this article;

(ii) A violation of Sec. 21-902 of this article; or

(iii) A moving violation identical or substantially similar to Sec. 20-102 or Sec. 21-902 of this article; and

(3) Whose license or privilege to drive never has been suspended or revoked.

(e) Early expungement prohibited.- Notwithstanding any other provision of this section, the Administration may not expunge any driving records before the expiration of the time they are required to be retained under Sec. 16-819 of this title.

[An. Code 1957, art. 661/2, Sec. 6-117; 1977, ch. 14, Sec. 2; 1982, ch. 99; 1989, ch. 291, Sec. 2; ch. 376; 1992, ch. 541; 1993, ch. 322; 1994, ch. 23; 1998, ch. 483; 1999, ch. 647; 2008, ch. 275.]

Saturday, November 20, 2010

Man Falsely Accused of Robbery Acquitted after Jury Trial

A young man charged with armed robbery, robbery and conspiracy to commit robbery was acquitted after the alleged victim's testimony was discredited. The victim in this case told police that he and his friend were beaten by at least six young men two of whom had a stick and a baseball bat. The young men were arrested based on these accusations and jailed, some of them from the incident date all the way until trial.

At trial the victim identified my client as his attacker. During the trial it was revealed that the victim had had six regular sized beers in a one half hour interval shortly before the attack. It was further revealed that the victim almost immediately got on the ground and covered his face to protect himself. It was further revealed that it was very dark out and the victim had little time to look at his attackers. At the time of the attack the victim could not give any specific description of any of the men other than they were young and their race. He could not describe hairstyle, facial features, the size of the men. Finally, the witness testified that my client had a tattoo on his neck.

Prior to trial an investigator was sent to speak with the victim and she took his statement and his statement included the fact that my client had a tattoo on his neck.

At trial it was abundantly obvious that my client did not have a tattoo on his neck and frankly never had a tattoo on his neck. The jury took only a short while to quit my client of all charges.

Friday, November 19, 2010

Car strikes bicycle rider, bicycle rider wins (not really, but it makes for an interesting title)!



Several days ago I tried a case in the district court of Maryland for Montgomery County. In this case my client was a young woman bicyclist heading home from work going N. On Connecticut Ave. in Washington DC. It was 6 PM in December and she had her blinking rear light on. She needed to make a left turn Fessenden street and as she was approaching Fessenden Street she worked her way over to traffic signal in all the way. As she was just making a left turn on Fessenden Street a van came by on her left and its right mirror struck her in the left hip knocking her off the bicycle into the intersection. A bystander did not see the accident but did see the van pass through the intersection and stop 40 feet north of the intersection. He saw the bicyclist in the left lane on the ground. Significantly, the pedestrian said that the traffic light for the North and southbound directions was green.

The insurance company denied liability despite the fact that my client and the witness were very credible.

We filed suit and when the case was called for trial by client and the witness testified consistent with above. The van driver testified that he was completely stopped at the light and that the bicyclist was also stopped to his right. When the light turned green he proceeded 1 foot forward approximately and the bicyclist somehow struck his van pushing the mirror out of shape. Incredibly, he testified further that he no longer saw the bicyclist and continued up the street, into ongoing traffic and stopped the car to investigate.

The judge credited the testimony of the plaintiff bicyclist and her witness and concluded that the van driver was mistaken about his testimony. The judge awarded the full amount requested for the injuries that the bicyclist suffered.

Defendant Who Shot Two People Received Suspended Sentence-You Need to Look at the Whole Picture before Making a Judgment

I found the following newspaper article in the Montgomery Gazette. My client was originally charged with attempted murder after he shot two people. In the end he pled guilty to two counts of reckless endangerment and received a suspended sentence. My client did not get away with anything, it is just that after the state of Maryland and below counsel were able to investigate the matter, a more complete set of facts developed and reason prevailed.

A Montgomery Village man has been sentenced to time served for shooting into a crowd of people outside his house and injuring two, including his cousin.

Richard Anthony Ortiz Jr., 19, and his then 17-year-old cousin were at their home in the 9300 block of Bremerton Way in Montgomery Village on May 19 when four or five men knocked on their door about 6 p.m., according to Montgomery County Police charging documents. His cousin went outside by himself over Ortiz's objections.

Ortiz heard a commotion and opened the door. He saw his cousin surrounded by a small crowd and struggling with a then 23-year-old man, according to the documents. Ortiz grabbed a gun, told the other people in the house to go downstairs and fired into the crowd to scare off the group.

A bullet hit Ortiz's cousin in the back and exited through his stomach. The 23-year-old man was shot in the neck, according to the documents. Neither man suffered life-threatening injuries.

The 23-year-old fled to a house near Arrowhead Road and Rothbury Drive in Montgomery Village and told the residents that someone was chasing him, according to the documents. Police were called.

Ortiz administered first aid to his cousin and walked to Rothbury to meet police.

"I have a [2-year-old] daughter and the day she was born was the day I changed a lot and became more protective of my family," Ortiz, who is now employed and living with relatives in Silver Spring, said at the Oct. 4 hearing in Montgomery County Circuit Court in Rockville. "I know [the 23-year-old] has four of his own and I'm happy that God didn't decide to put that kind of pressure on me of taking someone's life, knowing he has kids."

The .38-caliber revolver was unregistered and illegally purchased, Ortiz's Rockville attorney Thomas G. Witkop said at the hearing. Ortiz does not know who he bought the gun from, Witkop said.

Ortiz purchased the gun for protection after he and his cousin were robbed by three masked men while walking home last winter, Witkop said. The cousin's nostril was slit and a tendon in Ortiz's arm was cut, he said.

Witkop said in an interview that the cousin and the 23-year-old were in a physical fight and that Ortiz feared for his relative's life and made a poor decision.

"This guy's in his home defending himself," Witkop said. "He wasn't looking for any trouble, he was minding his own business. He wasn't an instigator."

Ortiz was indicted in June on two counts of first-degree assault, two counts of reckless endangerment and one count of using a handgun in commission of a violent crime. He pleaded guilty to two counts of reckless endangerment and was sentenced to two years in prison with all but one day suspended by Judge Joseph A. Dugan Jr.

Ortiz was given credit for one day of time served in a plea agreement accepted by Dugan.

"I don't like people out in the street with handguns that don't have a license for them and I don't like people like you, at age 19, blazing away out in front of your house," Dugan said at the hearing.

"Little girls need love and affection from their fathers and you can't give that if you're in the penitentiary."

Ortiz has been known to associate with members of a local offshoot of the Bloods gang, Assistant State's Attorney Jeffrey Wennar said, and he tested positive for marijuana three times while awaiting trial.

Dugan said Ortiz's cousin was selling drugs.

Ortiz violated his curfew on at least three occasions while awaiting trial, according to court documents, once disappearing for three days. He also failed to report to his probation officer at least once, missed a substance abuse treatment class and failed to appear at a court date.

Ortiz pleaded guilty to marijuana possession in July, according to an online state court records database.

The reporter who wrote this was Ms. Tierney and I appreciate her balanced approach to the article.


Wednesday, November 10, 2010

some suggestions when handling a car accident property damage claim

Having your car repaired or replaced after a collision can be the most frustrating
aspect -of a legal claim. The law provides that you are entitled to be made whole if the
other driver damaged your car. Being made whole simply means making your car as good
as it was before the accident. Unfortunately, this may not work out very well in reality. I
have had plenty of clients who had brand new $23,000 cars, driven them off the lot and
then had a bad accident necessitating $10,000 in repairs. Even after all the repair work is
done, common sense dictates that the car is usually not as good as it was before the
accident even though under the law it is considered to be as good. If you can accept early
on that this process seldom makes you a winner, it might be easier on your nerves. If you
follow the steps outlined below, it will expedite- matters and reduce your headaches.
Obviously, if you have any questions, please call me and I will help you.

After you have had an accident and your car is damaged or totaled, you are
entitled to be made whole. That is, the person who hit you, or his insurance company, if
he is at fault must pay you enough money to fix your car so that is in the same condition
as before the accident or pay you enough money to replace your car if it is totaled.

If your car is damaged but not totaled (the definition of total is not entirely clear.
Sometimes it is if the repair price is worth more than half of the price of the vehicle, then
the vehicle is a total loss. If the vehicle is an expensive vehicle the percentage may
increase. For example, if the value of the vehicle is $30,000 and the repairs will cost
$20,000, that may not be a total loss. The insurance company should tell you the formula
before they see the car.) call the adjuster for the insurance company involved. If you have
collision insurance, call your own insurance company and have an appraiser come out and
view-your car. To save you time you should suggest that all adjusters come to your car
rather than you bringing your car to them. An appraiser is experienced (but not infallible)
at evaluating damages and will tell you how much it will cost to fix your car. That
insurance company will then offer you a check in the amount of the appraiser's evaluation
less any deductible you may have. Before you accept this check, it would be wise to have
your car appraised by a mechanic or body man you know to check the appraiser's
accuracy. After your insurance company pays you, it will then collect what it paid from
the insurance company of the person who hit-you. Thereafter, you will get back any
deductible you had to pay. Also, check if you have rental insurance which allows you to
have a rental car until your car is fixed or replaced. Also, check to see if you have GAP
insurance which will cover the difference of the fair market value of your car and the
amount you owe on the car.

If you are dealing with the insurance company of the person that hit you, the
process if similar to the above description. Have the appraiser come to your car. Be
aware that the appraiser is not your friend and you should choose your words carefully
when speaking to him. do not speak to him-as how, why, what you were doing , are you
hurt, etc. about the accident. If he asks about any of the above, refer him to me. Your
conversation should be limited to the cost of fixing or replacing your car. Again, after an
appraisal is made, have a mechanic or body man you know or trust also estimate your
car's damage. As the defendant is required to make you whole, you are entitled to rent a
car equal to your car while your. car is nonoperational due to the accident. If you do not
rent a car and use a taxi, save your taxi receipts as those would be reimbursed also. All
taxi receipts, rental receipts, and repair estimates should be submitted to the defendant
insurance company so that you receive fair value for your loss.

If your car is totaled, you are entitled to the fair market value of the car at the time
of the accident and the place where the car is generally kept plus the applicable taxes and
transfer fees pursuant to Code of Maryland Regulation 11.11.05. Fair market value is
frequently determined by the `blue book value. Many public-.libraries keep blue books
and you can call the reference librarian at a public library and find out the blue book value
of your car. Library reference in Montgomery County is 240-777-0001. You can also
check online at the Kelley blue book site (KBB.com) or Edmunds.com. Another way to
determine fair market value is through the classified ads in the local newspapers. Look at
the Sunday paper used car section and find the value of cars like yours.

Further, pursuant to Maryland law the insurance company must provide the
following upon request:

· The method used to value the vehicle (including the identification of any books,
manuals, or database
used);
· A detailed explanation of our calculation of the motor vehicle's loss value, including
the calculation of
any value added to the motor vehicle by options;
· A list of all deductions that were made from the value of the motor vehicle;
· A copy of the inspection guidelines relied upon by us in determining the condition of
the vehicle at the
time of loss.

Finally, in accordance with Maryland Regulation, 31.15.12.06, at your option,
you may, in writing, reject the settlement offer and make a counter offer based on:
· dealer quotations for a substantially similar motor vehicle
· advertisements for a substantially similar motor vehicle, or
· any other source of valuation for a substantially similar motor vehicle.

Use the above information to get the best value for your car. Do not take a check
that is below the fair market value of your car. Again, until your car is replaced, the
defendant insurance company must pay for any rental expenses and or taxi expenses you
incur because you were missing your car. Bear in mind if you own a Chevy Chevette, you
cannot rent a Rolls Royce and expect to be fully reimbursed.

I hope that the above is helpful. If you have any questions please call me. I am
always happy to help you.

Sunday, July 18, 2010

Hard work and perseverance nets injured cyclist good settlement

Recently a young woman who was a victim of a bicycle accident came to me. She was riding her bicycle southbound on 18th St between parked cars and traffic. It was rush hour and the traffic was moving forward slowly, stopping and starting. Ahead of her coming the opposite direction was the defendant car driver. He made a left and cut into her lane and struck her with the front of his vehicle in her left knee. At the time of the accident it was daytime and she was traveling probably 10 mph in a 25 mph zone. She was knocked to the ground and suffered a knee injury and significant bruising.

The driver of the car did not speak to her and seemed preoccupied with the damage to his sport utility vehicle. People around the scene helped the fallen bicyclist. I only had one witness who actually saw the accident and she was not cooperative with my investigation. An ambulance came and she was taken to the hospital. She suffered a non-fracture injury to her left knee and was put on crutches and released. She recovered and after approximately 1 1/2 years after the accident she is still having some knee problems.

She hired a lawyer for settlement purposes and the insurance company denied liability. The claimed that their driver was not at fault for the accident and further, that she was at fault for riding between parked cars and moving traffic.

After her first lawyer could not resolve the case, she came to me. I did not bother calling the insurance company. I did not ask them to reconsider their position. I merely filed suit in the Superior Court of the District of Columbia.

Filing suit was the easy part. The defendant driver was a lawyer who actually had a high-ranking government position. My process server tried to serve him at home. The defendant lawyer lived in an expensive house and had servants. The servants would claim that the defendant was not home and service failed. I tried to have him served as his government office and his secretary would not accept service or let my process server see him. Finally I was able to serve him by certified mail through his mail room.

Of course the insurance company again denied liability. I went to the accident scene and took measurements and photographs. It was clear to me that the defendant was negligent in his driving. They took the deposition of my client. Prior to the deposition I spoke at length with my client and had her also go to the accident scene so the facts would be clear in her mind and she could speak with confidence. I talked with there as to what questions she could anticipate from the insurance company lawyer. At her deposition she was very credible and sympathetic.

I took the deposition of the defendant lawyer and he could not understand how this accident could possibly be his fault. He stated that he was angry at the bicyclist because she could've killed herself. He believed that the fact that she was silent after the accident was an indication that she was planning to sue him. Most importantly, he testified that when he looked to the right he only looked approximately 15 feet because after that his line of vision was cut off. He began moving his car and ran over the bicyclist. I was able to preserve the argument that he should not have moved at all because he could not look far enough up the road. His testimony looked fairly poor for him.

Through the assistance of the Washington area bicycle Association I was able to find a regulation which permits "lane splitting". There is a regulation which allows bicyclists to go between parked cars and traffic as long as it is done safely.

I provided this information to the insurance company lawyer and they finally accepted liability and made a very low offer. After a period of negotiation we were able to get the offer into a reasonable area. Even the court appointed mediator believed that the plaintiff secured a good settlement.

It took many hours of work which included visiting the accident scene, chasing down witnesses and getting their statements, preparing my client for her deposition, preparing for the deposition of the defendant, researching applicable law but the result was worth it: we turned the case around from zero to significant money for my client for the injury she suffered.

Wednesday, March 24, 2010

car insurance in Maryland-raising of premium or cancellation

Online information makes much of our lives much more transparent. This includes our traffic and criminal records in Maryland which are available for the world to see on the Maryland judiciary web site. Car insurance companies peruse these lists regularly for their insureds. Based on what they find, they may be canceling insurance or raising the premiums. The question I sometimes receive is whether they can do this based on a disposition of probation before judgment. Probation before judgment in Maryland applies to many different types of criminal cases. It can apply all the way down to small traffic matters such as speeding and up to large criminal matters such as burglary. For purposes of this blog, it applies to the vehicle matters. It is my opinion that the bottom line is that they cannot raise your premiums based on a disposition of probation before judgment. However, they can cancel your policy for a probation before judgment.

The Maryland Insurance Administration “Consumer Guide to Auto Insurance” states as follows:



“NOTE: A “Conviction” includes a plea of nolo contendere and a finding of probation before judgment (PBJ). Maryland law specifically recognizes these exceptions for cancellation or nonrenewal…

However, compare, Insurance Article, Section 11-215 provides:



(e) For purposes of reclassifying an insured in a classification that entails a higher premium, an insurer under an automobile insurance policy may not consider a probation before judgment disposition of a motor vehicle law offense, a civil penalty imposed pursuant to § 21-202.1 or § 21-809 of the Transportation Article, or a first offense of driving with an alcohol concentration of 0.08 or more under § 16-205.1 of the Transportation Article on record with the Motor Vehicle Administration, as provided in § 16-117(b) of the Transportation Article.



and Section 11-318 provides:



(e) For purposes of reclassifying an insured in a classification that entails a higher premium, an insurer under an automobile insurance policy may not consider a probation before judgment disposition of a motor vehicle law offense, a civil penalty imposed pursuant to § 21-202.1 or § 21-809 of the Transportation Article, or a first offense of driving with an alcohol concentration of 0.08 or more under § 16-205.1 of the Transportation Article on record with the Motor Vehicle Administration, as provided in § 16-117(b) of the Transportation Article.

Please note, this only applies to a higher premium. The insurance company can cancel the driver under the policy even with probation before judgment. I believe that the below regulations make that more clear:

COMAR 31.15.10.03

E. Action Based on Criminal Conduct.

(1) In the case of private passenger motor vehicle insurance, standards that meet the business purposes standard and do not require statistical validation include a standard that allows cancellation or nonrenewal of coverage if the named insured or a covered driver under the policy is convicted of:

(a) Operating the motor vehicle while intoxicated, or impaired by drugs;

(b) Committing homicide, reckless endangerment, or criminal negligence arising out of the operation of the motor vehicle; or

(c) Using the motor vehicle to participate in a felony.

(2) If a named insured or covered driver is found guilty of a crime listed in §E(1) of this regulation, and the guilty finding subsequently is struck, and the final disposition of the matter is probation before judgment, the guilty finding:

(a) May be used as evidence that the named insured or covered driver committed the conduct listed in §E(1) of this regulation; but

(b) Is not conclusive proof that the named insured or covered driver committed the conduct listed in §E(1) of this regulation and may be rebutted by evidence showing that the insured or covered driver did not commit the conduct.

Friday, March 12, 2010

Even if it is only a minor matter you need to defend in a civil suit

Recently I had a young man come into my office. At the age of 17 he was in his father's car and he bumped the back of the plaintiff's car. There was virtually no property damage on his car and very slight property damage on the Honda minivan-approximately $900. The woman in the van got out and they exchanged information. She seemed fine. The only problem was that my client had no insurance on the vehicle-Dad forgot to pay.

2 1/2 years later my 17 year old is sued for $30,000. The woman had evidence of $20,000 in medical expenses which included one surgery on her knee and evidence that she had a ruptured disc in her neck. Apparently neither of these problems were evident prior to the accident.

I told my client that because he was served needed to defend himself. If he did nothing, it was a substantial likelihood that a judgment of $30,000 would be entered against him. That judgment would stand for at least 12 years. During those 12 years the insurance company could attempt to garnish his wages, seize his property, go after his bank accounts, etc. Further, his license would be suspended until he paid off that judgment. In Maryland, if you have an accident while you are driving an uninsured vehicle and a judgment is entered against you, the motor vehicle administration will suspend your license until you satisfied that judgment or work out an acceptable payment plan with the judgment creditor.

We went to court and reviewed the plaintiff's evidence. It was clear that my client accidentally rear-ended the plaintiff's vehicle. They had the complete medical records showing the above described problems. Strangely, the insurance company did not have their plaintiff immediately present. On the other hand, we were ready for trial. The plaintiff had the burden of collecting their evidence in a timely fashion to prove in court on the trial date. They were not ready. Had they gone forward that day they would've lost everything because they were not prepared. Now it is possible that the plaintiff could have continued to case to collect their evidence but that was not definite-the judge could have denied the request for postponement. Based on this uncertainty, based on the fact that the plaintiff was only 17 when the accident happened, we were able to settle this case at $1500 and some of that was going to come out of my legal fee because the case turned out to be significantly easier than I had anticipated.

By hiring an experienced attorney and preparing a defense, my client was able to reduce his exposure from $30,000 down to $1500 and he was able to protect his driver's license.

Saturday, February 20, 2010

Motorcyclist Should Consider Uninsured Motorist Coverage

Sometime ago a friend came to me after she had had a motorcycle accident in Washington, DC. In the accident she had broken her leg. Worse yet, the other vehicle that had hit her had fled the scene.

She advised that she was riding down the street when an unknown car made a left turn and turned into her and knocked her off the motorcycle. She was in a great deal of immediate pain. She could not give me the license plate or provide any amount of detail as to the car. Fortunately, first responders promptly arrived and assisted her. She was sober, there was no evidence of drug use and the police noted this. Further, she told the police that a car had struck her and had left.

My friend and soon-to-be client believed that she had no recourse. Fortunately, and as was required by law, she had motorcycle insurance. She believed that the motorcycle insurance would not help her. She thought that it only protected her from claims if she were negligent and struck someone else or their vehicle. This portion of the coverage is known as liability coverage. Liability coverage is only one portion of normal coverage when you have vehicle insurance. Another significant portion of vehicle coverage is uninsured motorist coverage. Uninsured motorist coverage will pay for injuries you receive from another motorist who has no insurance. The normal scenario for such a case is that there is an accident and the other driver remains at the scene but there is no insurance on the other driver. (Although motor vehicle insurance is mandatory in both Washington, DC and Maryland, compliance statistics are rather sobering-there are many motorists who have no vehicle insurance) Then your own insurance will pay for damage to your vehicle and injury to yourself subject to the deductible on your insurance. However, uninsured motorist also covers you if the other vehicle is a "phantom vehicle". In our case, the other vehicle was a phantom vehicle. The difficulty in phantom vehicle claims is that your own insurance company will often not believe your story about how the accident happened. In this case, it was very helpful that the police and ambulance came and were able to establish that my friend was not drunk or high and she immediately provided a credible version of the events.

I was able to present this information to her insurance company and get her fairly compensated for the loss that she had.

As an aside, I have ridden motorcycles for more than 30 years. I live in Maryland. Maryland insurance has something called personal injury protection (PIP) insurance. That generally applies to insurance for automobiles (not taxis or buses generally). It is also not generally provided to motorcycle riders. PIP is paid quickly and paid regardless of fault. Generally it is only up to $2500. And it only pays for medical expenses, income lost as a result of the accident and, God forbid, funeral expenses. Personal injury protection can be raised up to $10,000. I include PIP on my motorcycle policy. The annual premium is minimal and I raised the personal injury protection coverage to $10,000. That covers me quickly if there is an accident on my motorcycle, even if it is my own fault, and this extends to bicycling also. I am an enthusiastic bicyclist and try to commute to work (given the significant snow I have not commuted to work in several months but I still do have my office bicycle and zip to court on that on a regular basis).

Bottom line-even if the other driver is hit and run you probably have uninsured motorist coverage which can protect you. Consider obtaining personal injury protection insurance and raising the limits.

DC cyclist establishes her right to ride on the sidewalk

I recently finished representing a young woman cyclist who was struck by a car and suffered significant injury. The young cyclists came to me after the insurance company rejected her claim. The insurance company was under the belief that the automobile driver had the right-of-way. In this case, the cyclist was on the sidewalk crossing the driveway when the accident occurred. The insurance company believed that their vehicle had the right-of-way.

I wrote the insurance company and advised that in general, cycling on the sidewalk in Washington, DC is permitted unless you are in the central business district. In our case, the cyclist was outside of the central business district In this particular case she was pedaling her bicycle in a reasonable manner, at a reasonable speed, and keeping a reasonable lookout during daylight hours commuting to work. She was on the sidewalk and the sidewalk was crossing a driveway. Suddenly and without warning, an automobile driver made a turn and entered the driveway without regard to the cyclist. My client had no chance to react and avoid the accident. She was struck in the right side knocking her down to her left. The automobile driver had a duty to yield the right-of-way to all other traffic using the sidewalk (District Code of Municipal Regulations 18-2207.2). The driver had a further duty to keep a proper lookout for pedestrians and others using the sidewalk. The automobile driver failed to reasonably exercised her duties as a driver and consequently was negligent.

The insurance company was persuaded by my presentation of the law in Washington, DC and accepted liability. We were able to settle the case for the policy limits of the automobile.

If It's Not in the Police Officers Report It Did Not Happen

I was recently in Cecil County Maryland. I was representing a professional driver who drives over 100,000 miles per year. This was his second charge for driving while under the influence of alcohol in the past five years. If he suffered a conviction he would lose his job as a professional driver. My client had done a great deal in terms of dealing with his alcohol issues-he received an alcohol evaluation, followed up diligently with the classes which were recommended, went to Alcoholics Anonymous and completely abstained from further drinking.

In a drunk driving case, generally there is a police report written by the arresting officer. That is not usually supplied to the defendant automatically. Most defendants do not know about this report. It is a simple matter of requesting that report from the prosecution and it must be provided. In this case the police report stated that the officer watched my client at approximately 2:30 a.m. begin to make a left turn and then continue straight and thereafter change lanes from lane number one to lane number two without a turn signal. Thereafter, the officer stopped my client, smelled the odor of alcohol, my client did poorly on the field sobriety tests, and my client had a breath test in excess of the legal limit.

The fourth amendment of the United States Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment applies to people driving automobiles. Based on the police report I did not believe that the officer had the right to stop the motorist. There was no evidence, in my mind, that my client had violated any traffic laws and consequently the officer could not make the stop.

The case was called to trial. The officer testified that he saw my client begin to make a left turn and then abruptly go to the right almost striking the officer and causing the officer to brake hard and veer away to avoid a collision. You can imagine my surprise. This was not in the police report. The officer further testified that when my client changed lanes he crossed a double yellow line. More surprise to me.

One of the fundamental aspects of American criminal jurisprudence is the right to cross-examine witnesses. It is normal for a witness for the state to want to tell a story which supports the state's case. That story when it is finished sounds complete and convincing. Cross examination is key to really making the story complete. It allows the examiner to explore parts of the story that the witness did not want to reveal. It allows the examiner to point out contradictions in the witness's story.

In this particular case I examined the police officer about his report. In cross examination the officer admitted that the police academy taught him to write reports and that those reports must be truthful and accurate and complete. Further, he acknowledged that the reports were very important so that he could remember the events accurately, the prosecution could look at the report and develop a theory of the case and the defense could rely on the report that there would be no surprises. The officer further admitted that his memory was freshest when he wrote the report because he wrote the report perhaps one hour after the arrest and a trial we were approximately 8 months postarrest. The officer further admitted that my client cutting him off was a very significant factor and that he had omitted that from the report. When I asked the officer had he ever seen double yellow lines on the road where the lanes headed in the same direction he stated he had not and perhaps he was mistaken. He then said it was a single yellow line. Again, when asked if he had ever seen a road with a single yellow line with two lanes heading in the same direction he agreed he had not. He finally admitted he had no idea what the lines were.

At this point in the case I argued to the judge that the officer's report should be the evidence that the judge considers and not the officer's testimony. The report was much more recent to the time of the arrest and should be an accurate reflection of what happened. The judge agreed and found that my client had not made any legally recognizable driving violations which allowed the stop. The judge ruled that the stop was illegal. At that point, there was no evidence of drunk driving and my client was acquitted of all charges.

I was pleased and somewhat surprised with this result. Frequently, I am used to the 80% rule. The 80% rule is that the officer has 80% of his information in the report and then at trial adds 20% which is a complete surprise. Most judges seem to allow this. This judge in Cecil County did not and I believe that the right result followed.

My client was also pleased. No conviction, no jail, no points, no fine, no probation. Perhaps I am naïve but I believe this experience had enough of an impact so that he no longer drinks and drives.

Saturday, January 30, 2010

Getting compensation for injured homeless man is not easy but it is possible

Jack was a homeless men with significant alcohol and mental problems. He was well known and generally liked if not loved in Gaithersburg. Several years ago he had found temporary housing. It was a multiunit apartment building in Gaithersburg Maryland. One day one of the units caught fire. It was a cold day much like today. While people were waiting out front for the fire department to extinguish the blaze, Jack volunteered to go to the 711 and bring back coffee. On his way back while bringing the coffee an unknown driver jumped the curb, went on the sidewalk, then struck Jack injuring him badly. That driver remained unknown and took off without any evidence connecting him to the crime.

Jack was taken to the hospital with injuries to his legs. The hospital provided treatment and after several weeks discharged him. Based on these injuries he was unable to do any odd jobs and he lost his temporary housing and ended up back on the street. Jack had no health insurance or any other sort of insurance. He had injuries and significant suffering.

A friend of his brought him to my office. Maryland has an uninsured motorist accident fund. In order to qualify, the applicant must make a timely application (the time limit is rather short and back then it was six months but I don't want anybody to rely on that because laws change) and the applicant must not have had any insurance which would cover him and the applicant must be free of fault in the accident among other qualifications. The available money is limited, at that time it was only $20,000 and I do not expect that to change. We made the claim, pressed the claim, presented the medical evidence, presented evidence of the permanent injury that Jack suffered and eventually we were able to obtain the full $20,000 from the state of Maryland.

The case does not end there. Medicare paid Jack's medical expense's which exceeded $20,000. Under federal law, Medicare is entitled to compensation for anything that they pay out. The applicant can argue that the lien that Medicare asserts should be reduced because of circumstances. In this case, we were able to persuade the federal government that Jack was homeless, Jack was badly injured, he needed the money more than Medicare did; they completely waived their lien. I reduced my attorney's fees so that there would be more money in Jack's pocket.

The case even does not end there. I talked to Jack about giving him the lump-sum settlement. Jack was never declared incompetent by any court and consequently he could have taken the money and spent it as he wanted to. He decided I should pay him the money on a monthly basis. Meanwhile, Jack and I both went out together trying to find him a place to live with the money. He was still on the street. Together we got him identification which was not easy-he did not have a fixed address. I gave the state of Maryland my office address and that seemed to work okay until the police would come to my office with either a summons or an arrest warrant for him. As I said, Jack had problems with alcohol and mental issues. We went to several places which were within his price range but Jack was never able to follow through. I could not force him. The best that happened is that there was an inexpensive hotel in Gaithersburg and he would stay there every month for about a week until his money ran out. I felt better believing that at least he was warm and dry on some pretty cold nights. Jack's condition never got better, but actually deteriorated and he died several months ago. I would like to believe that the money that I was able to get for him for his injuries at least made him somewhat more comfortable in his difficult life. Rest in peace jack.

Wednesday, January 13, 2010

Sometimes when the prosecution is hard it makes the case easy

Last week I was representing a client already on probation for driving while suspended. While on probation he was again charged for driving while revoked. My client was a decent generally law-abiding citizen. It seemed like the prosecution was ready. I tried to negotiate with the prosecution to reduce the one year in jail, 12 points on his license offense down to a 60 day in jail three points on his license offense. Not that my client would necessarily go to jail for 60 days but that was the possibility. And 60 days is a lot better than one year. The prosecution stuck to their guns and basically ridiculed my attempts at settling the case. The battle lines were drawn and the case was called for trial.

A little background: My client advised that he had left a bar at approximately 11 p.m. and was sober and before he got into his car he saw the police officer in the parking lot waiting for drunks to come out to be stopped. My client was fully aware of the officer and drove very carefully. He observed a stop sign exiting the parking lot and began down the road and noticed that the officer was after him. The officer put on her takedown lights and my client pulled into the 7-11. At that point it was determined that his license was revoked. The officer told him that she had stopped him for running the stop sign.

The testimony of the officers surprised me. The officer testified that it was 11 a.m. and she had run my client' s tag and determined that the owner of the vehicle was suspended. She testified that the owner was a white male who was 5'8" tall and 190 pounds. This matched the description given from her police car computer. Obviously the testimony was quite different from my client. On cross examination she fell apart establishing his height and his weight (he was sitting in a car and all she could see were his shoulders and above-rather difficult to figure out somebody's height and weight). My client admitted police officer that he was suspended.

During the suppression hearing (we challenged the constitutionality of the stop) my client testified that his wife owned the car and consequently the description should have come back for a woman. Also he testified that he was stopped for running a stop sign. He told the judge that he did not run the stop sign.

The judge looked at the facts. The officer was very shaky in her testimony. She did not have her notes. She had had hundreds of stops of other motorists since the original stop. She had made hundreds of arrests since this original arrest. She was wrong as to the time of the arrest. She was wrong as to the vehicle owner. She was wrong as to the reason for the stop. My client was properly prepared and had a very strong memory of the events. His testimony was solid and credible.

The judge granted our motion to suppress the evidence and my client was acquitted. No jail, no probation, no conviction, no points, no fine. Often when the prosecution makes the offer too difficult, it makes the case that much easier to try.