A. Initial Considerations for the Plaintiff With fewer cases actually going to trial these days, the focus of the successful litigator must be on the discovery process, for discovery is the battlefield on which the majority of current Maryland state court litigation will be won and lost. The Maryland Discovery Guidelines, although not formally a part of the Maryland Rules, provide a framework for handling discovery and the disputes that arise during discovery. Chapter 400 of the Maryland Rules of Civil Procedure governs discovery in the Maryland. Pursuant to Rule 2-504, circuit courts usually issue a Scheduling Order which establishes the significant discovery deadlines for the case, but the discovery tools may be used in any sequence. Generally speaking, one party's discovery and the obligation to respond to it are not dependent upon what any other party is doing or not doing in discovery. Using the foregoing as a framework, the formula for a successful discovery strategy can be concisely stated: Be PREPARED, Be PROACTIVE, Be PROMPT and Be POLITE. For counsel representing the plaintiff, discovery PREPARATION of the case begins at the initial client meeting after the case has been accepted and the retainer negotiated. Having a checklist of relevant topics and documents to facilitate the initial meeting with the plaintiff is helpful for even the experienced practitioner. The PROACTIVE litigator will include Interrogatories, a Request for Production of Documents and Request for Admissions to the adverse parties with the filing of the original Complaint. This discovery can then be served along with the Complaint, requiring the defendants to answer it within 15 days after the date on which the Answer is due. Since the rules of procedure do not predicate one party's right to receive discovery responses upon the timeliness of that party own discovery responses, it is entirely permissible under the rules for a party to file a motion to compel and/or motion for sanctions against an opponent even though the moving party owes the opponent discovery responses as well. As a practical matter, however, many judges are hesitant to impose any significant sanction in favor of a party who is guilty of the same charge it is leveling against an opponent. Therefore, it is prudent to be PROMPT with one's own discovery responses, and to contact opposing counsel to request an extension if one is needed. While it is expected that all attorneys will zealously represent their clients within the bounds of the law, even a cursory review of the Discovery Guidelines makes it clear that cooperation is both encouraged and expected throughout the discovery process. Accordingly, the prepared, proactive and prompt litigator will also be POLITE. Put another way, the 'beggar' in the instant case may be the 'chooser' in the next one, so a modicum of empathy toward opposing counsel is wise, as long as it is not inconsistent with one's ethical obligation to the client. Some plaintiffs' counsel are content with whatever 'experts' the fates and the facts of a particular case may bring. In a typical car accident personal injury case, these arbitrarily assigned witnesses are most often 'the investigating police officer' and 'the primary care physician'. There may be nothing wrong with such persons as experts in any given case. Indeed, having the cop and family doctor in one's corner may be more appealing to a jury than the stable of experts purchased by defense counsel to express opinions on matters of which they have little or no first hand knowledge. On the other hand, the cop may not be qualified to render opinions as an accident reconstruction expert. The family doctor may not be board certified or may lack special training in a medical field relevant to the injury. Both may be unsophisticated witnesses who are intimidated by the courtroom and easily overwhelmed by cross-examination. There is no formula for determining the "expert potential" of a witness beyond the tried-and-true method of forming an impression based on personal observation or based on the recommendation of a trusted colleague who knows the prospective expert. B. Initial Considerations for the Defense A defense attorney's first involvement with a personal injury suit may arise months or years after the accident and plaintiff's assembly of a damages case. Defense counsel is therefore somewhat dependent upon an insurance carrier for the initial case investigation. While all of the discovery tools available to plaintiff's counsel are also available to defense counsel, the defense's most potent discovery tool is provided by Rule 2-423 which states in pertinent part: "When the mental or physical condition or characteristic of a party...is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner..." Technically Rule 2-423 requires a court order but in practice this is rarely demanded by plaintiff's counsel, and the parties usually schedule the examination by agreement. And although Rule 2-423 requires a statement of "the manner, conditions and scope of the examination", plaintiff's counsel rarely demand such specificity, and are usually satisfied with a simple letter notification of the time and place of the examination, along with the name and address of the examiner. Determining whether to obtain a Rule 2-423 examination is of significant concern to defense counsel. If the examiner's report is unfavorable to the defendant's cause, counsel may have handed the plaintiff an additional expert witness. While the more gallant reaction of defense counsel in such a situation would be an acknowledgement that the plaintiff "really must be injured as claimed", insurance adjusters are less than pleased if this happens with any frequency. Therefore, the following guidelines may assist defense counsel contemplating whether to have a plaintiff examined: o Do Not request an exam solely to refute a disability rating of 10% or less. o Do Not request an exam solely to challenge the cost of treatment. o Do Not request an exam if treatment is reasonable in scope, cost and duration. o Do request an exam if challenging protracted, continuing treatment. o Do request an exam if a disability rating is 20% or more and seems high. o Do request an exam if an excess verdict is probable and trial is likely. An alternative to a Rule 2-423 examination is the "medical records review" or "medical peer review" which is an expert's opinion derived solely from a review of a claimant's medical chart and perhaps the written opinion of an opposing expert. Sometimes, insurance companies will have in-house nurses prepare such reviews. Otherwise, the review may be conducted by a consulting expert or by a retained expert. If done by a consulting expert, such a review will probably be neither discovered nor discoverable. If done by a "retained expert", (one who has been formally designated as an expert for trial), such a review will probably not be discovered unless an intrepid plaintiff's counsel demands a deposition or unless the examiner is later asked to conduct a Rule 2-423 exam. For close or dangerous cases, a records/peer review may serve the purpose of giving defense counsel and his client/carrier a sense of what is likely to be found in a Rule 2-423 examination, providing valuable insight as to whether to proceed with a medical defense. While a plaintiff's attorney may have a ready, willing and able expert witness in the plaintiff's own primary care and treating providers, defense counsel must most often "hire" an expert specifically for purposes of the litigation at hand. Such "retained experts" cast upon defense counsel an obligation not required of plaintiff's counsel who uses a treating doctor as an expert. Rule 2-402(g)(1)(B) obligates counsel naming a retained expert to summarize that expert's qualifications, produce any available list of publications written by that expert, and state the terms of the expert's compensation. Aside from this relatively simple obligation, defense counsel is free to retain experts as is seen fit, and usually has an ample war chest funded by the insurance carrier for this purpose. Evaluation of expert candidates requires consideration of myriad factors, the most common of which are: o What type of expert is needed - reconstruction, medical, mental, economic? o What are the qualifications of the plaintiff's experts? o Which defense expert candidate exceeds the opponent's qualifications? o Which defense expert candidate would be most persuasive in the given venue? o Which defense expert candidate can best withstand the likely cross-exam? Finally, defense counsel should keep in mind the following generalities when choosing experts: o Experience is usually more impressive than a purely academic background. o Teaching experience is usually persuasive. o Military service is usually persuasive. o Local experts usually trump out-of-area experts. o Treating experts usually trump retained experts. o Experts reporting in an official capacity usually trump retained experts. In the handling of pleadings and papers during the discovery process, defense counsel is not different than plaintiff's counsel, and the admonition to be PREPARED, PROACTIVE, PROMPT and POLITE is well heeded, for all the reasons previously stated.
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