What does a Baltimore Personal Injury Defense Lawyer Do?
In the Baltimore personal injury litigation arena, legal representation is usually divided into two camps. At one table sits the lawyer that represents the person that filed the lawsuit -called a plaintiff. This attorney may also be referred to as “plaintiff’s attorney” or “plaintiff’s counsel”. On the other side of the courtroom are the defendant and the defendants and their lawyer or lawyers. These latter individuals may be referred to collectively as “defense counsel”. Not surprisingly, the roles of these lawyers in the litigation process vary, depending on which party they represent, and the interests and goals of that party. Significantly, with respect to defense counsel, the interests of the insurance company are the driving force behind any settlement dialogue.
A Baltimore personal injury defense attorney is a lawyer who represents the party being sued in a personal injury case, generally referred to as the “defendant”. The defendant in a personal injury case could be an individual [e.g. a Baltimore city driver who caused an accident] a company, [e.g. the company for whom the driver causing the accident worked] or an insurance company [e.g. your own insurance company in a Baltimore uninsured motorist claim]. It has been said the role of the defense is, as suggested by the label, to defend the interests of their client and argue against the claims being made by the plaintiff. Of course, that is exactly what they do – with one important caveat. In the arena of personal injury, defense lawyers are almost always “in-house” counsel. This means a variety of things, but, of great import to this discussion, it means they are the employees of the very insurance company that insures their client [and will pay for any loss caused by their client]. Of course, all dutiful employees are mindful of the goals and desires of their employer. If they are not- they are unlikely to be employees very long. Every insurance company wants to pay the lowest amount possible on every claim. In 30 years, and thousands of claims I have never heard a claims adjuster utter “we only have to pay this amount….but… on this one, I think we will pay a little more…….”. Never happens. This relationship and dynamic fully manifests when the value of the case is discussed. The defense lawyers, at least in terms of settlement discussions and offers, take their marching orders directly from their employer, the insurance company, not the client.
Beyond some of the more structural, intrinsic or practical differences, the responsibilities of a personal injury defense attorney are somewhat the mirror image of the plaintiff’s attorney’s responsibilities:
- Assessment of the Case: They will assess the merits of the plaintiff’s claim and advise their employer / the insurance company client on the best course of action, whether that’s ttling the case or fighting it in court. If a decision is made to settle, the insurance adjuster, not the client, determines how much to offer.
- Response to the Lawsuit: The defense attorney will respond to the plaintiff’s complaint, typically by filing an answer with the court. The answer will generally deny most, if not all, of the plaintiff’s allegations and may raise defenses. In the context of Baltimore personal injury litigation, which is the focus of this article, by definition is a claim in which a lawsuit has been filed. A lawsuit, formally called a “complaint” is a document containing the written allegations supporting plaintiffs’ claim, along with, potentially, supporting documentation. In a personal injury case, that complaint will typically recite that the defendant owed a duty to protect the plaintiff from bodily harm and engaged in some activities that lead to harm, loss, injury or damage and that the defendant is responsible for repairing that damage, or compensating the victim for that loss. The insurance company is not sued [unless the claim involves uninsured motorist coverage]. The defense lawyer files a responsive document -called appropriately an “answer”. In this paper, defense counsel will set forth whether they agree with one or more of plaintiff’s allegations, whether they disagree with one or more of plaintiff’s allegations, or, if they don’t have enough information to make a decision one way or the other. Defense lawyers in a personal injury claim will also have an opportunity then to list any affirmative or negative defenses held by their client, or arguably held by their client. Typical defenses that one would see raised in a Baltimore personal injury matter would be: Maryland’s statute of limitations; the doctrines of contributory negligence or assumption of the risk; failure to perform a condition precedent (e.g. the giving of timely notice to the involved government actor in a Maryland Tort Claim Act case); payment, waiver, estoppel and satisfaction.
- Pre-trial Practice: The defense attorney also participates in the discovery process, reviewing evidence, taking depositions, and formulating a defense strategy based on the gathered information.
- Trial: If the case goes to trial, the defense attorney will present the defendant’s case, which may involve trying to poke holes in the plaintiff’s evidence, presenting evidence of their own, and arguing that the plaintiff has failed to meet the legal standard for proving their claim.
- Settlement Negotiations: Defense attorneys also negotiate settlements, always in close collaboration with their client’s insurance company. They aim to resolve the case for the least amount of money possible and within the parameters set by the insurance company. While it may be the “interests” of the defendant and the insurance company are similar, and may well be aligned, the nature of those interests do not necessarily have anything to do with one another. While having a settled and closed legal claim against them invariably benefits every client -paying out routine huge settlements most certainly does not benefit the insurance company. The interest of the insurance are always financial.
- Appeal: If the court’s decision is unfavorable to the defendant, the defense attorney may help their client, and invariably, the insurance company, appeal the decision to a higher court. Certainly, any appellate costs, which can be substantial, would be borne by the insurance company.