Substantive Best Practices Best Practices in Personal Injury Law

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1 Substantive Best Practices Best Practices in Personal Injury Law Click on any item to view associated materials Biographies of Speakers The Honorable James T. Vaughn, Jr., Justice, Supreme Court of Delaware Beth H. Christman, Esquire, Casarino Christman Shalk Ransom & Doss, P.A. Francis J. Jones, Jr., Esquire, Morris James LLP Jeffrey Alexander Young, Esquire, Young & McNelis Program Materials * Ten Best Practices for the Plaintiff Personal Injury Practitioner Ten Best Practices for the Defense Personal Injury Practitioner Recent Supreme Court Cases * The forms included herein are samples only and may not be appropriate for any particular matter. 1

2 Justice James T. Vaughn, Jr. The Honorable James T. Vaughn, Jr., was appointed to the Supreme Court of the State of Delaware and confirmed by the State Senate on October 8, Prior to that appointment, he served as Resident Judge in Kent County of the Superior Court of Delaware from October 28, 1998 until he was elevated to President Judge of the Superior Court on October 12, Justice Vaughn received his B.A. from Duke University in 1971 and his J.D. from Georgetown University Law Center in Following admission to the Delaware Bar in 1976, he returned to Dover to practice general civil and criminal law in the firm of Vaughn and Vaughn. In 1988 he became a member of the firm of Schmittinger and Rodriguez in Dover. While in private law practice, he served as an associate member of the Board on Professional Responsibility of the Supreme Court of Delaware, president of the Kent County Bar Association, and vice-president of the Delaware State Bar Association. Justice Vaughn is a member of the Kent County Bar Association, Terry-Carey American Inn of Court and National Conference of State Trial Judges. He served as a judicial member of the Joint Bar/Bench Committee on Civility and as a member of the Judicial Ethics Advisory Committee

3 BETH H. CHRISTMAN, ESQ. CASARINO CHRISTMAN SHALK RANSOM & DOSS, P.A. Beth Christman is a 1980 graduate of The National Law Center at George Washington University, Washington, D.C. She has been a member of the Bar of the Delaware Supreme Court since Her practice has been focused upon litigation of civil matters for defendants District of Columbia; Inactive 1982 Delaware Supreme Court, Active Bar Membership 1982 United States District Court for the District of Delaware, Active 1984 Pennsylvania, Inactive 1992 Supreme Court of the United States of America Practice Tybout, Redfearn, Casarino & Pell. Associate ; Partner Casarino Christman Shalk Ransom & Doss, Founding Partner/ Director present Memberships Associate Member of the American Board of Trial Advocates, Past President 2007 Fellow of the American College of Trial Lawyers Defense Counsel of Delaware Delaware Superior Court Civil Rules Committee Advisory Committee on the Delaware Lawyer s Rules of Professional Conduct

4 Ten Best Practices for Defense Attorneys 2008 Representative Civil Cases Trabaudo v. Kenton Ruritan Club, Inc. 517 A.2d 706 (Del. Super.,1986)U.S. v. Consolidated Rail Corp., 729 F. Supp., 1461 (D. Del. 1990) State Farm Auto. Ins. Co. v. Clarendon Nat. Ins. Co., 1991 WL ( Del. Super.,1991) Robinson v. Allstate Ins. Co., 1992 WL (Del. Super.,1992.) McGrath v. Home Ins. Co., 813 F. Supp. 276 (D. Del. 1993) Kreider v. F. Schumacher & Co., 816 F. Supp. 957 (D. Del. 1993) Nygaard v. Lucchesi, 654 A.2d 410 (Del. Super.,1994.) Fletcher v. Ratcliffe, 1996 WL ( Del. Supr., 1995) Fletcher v. Ratcliffe, 1996 WL ( Del. Super., 1996) Powell v. State Farm Fire & Cas. Ins. Co., 1996 WL (Del. Super.,1996)Mulford v. Haas, 2001 WL (Del. Super., 2001) Collins v. State Farm Mut. Auto. Ins. Co., 830 A.2d 1241 (Del. Super.,2003) Garneski v. Termonia, 2003 WL (Del. Supr., 2003)

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13 Beth H. Christman, Esq. 1 Casarino Christman Shalk Ransom & Doss, P.A. 1.Adams V. Aidoo, 58 A.3d 410 (Del. 2013) When a pro se plaintiff objected to almost every interrogatory, failed to respond after the trial court explained why they should be answers and ignored the Court s warning that failure to respond could result in sanctions and dismissal, the Supreme court affirmed the dismissal of the case. It noted that plaintiff s unwillingness to comply and her refusal was willful, so dismissal of her case was proper. 2.Christian v. Counseling Resource Associates, Inc., et al. 60 A.3d 1083, (Del. 2013) Plaintiff s experts were not permitted to testify at trial by the trial court because plaintiff did not comply with the trial scheduling order in providing expert information. However, because the plaintiff had requested a conference with the trial court six months before the trial date to discuss revising the scheduling order and issues delaying discovery in their case and the trial court refused to meet with counsel or change the trial date, the Supreme Court overturned the trial court s decision. Despite that, the case includes strong language which advises counsel that any extensions granted without a motion or stipulation to amend the scheduling order approved by the Court will cause the party to waive the right to contest any late filings by opposing counsel from that time forward. The Supreme Court wants the trial court is involved so it can determine whether a new scheduling order is appropriate or whether any scheduling changes should be made. 3. Simpson v. Coleman, 2012 Del. LEXIS 443 (Del. 2012) Plaintiff s counsel failed to respond to the Court s first trial availability form, did not respond to a second request for trial dates and was told that failure to comply with the request could cause the court to dismiss the action without further notice to plaintiff. When counsel did not respond, the case was dismissed. While Plaintiff filed a motion to vacate the dismissal saying the failure was inadvertent, no further explanation was provided and the defense took no position. Plaintiff s counsel failed to go to court to present the motion, so it was denied for failure to prosecute. Three months later, plaintiff moved to vacate the dismissal still giving no reason for the failure to comply with the Court s requests and this time, the defendant opposed the request. 1. Catherine Cramer, an Associate with the Firm of Casarino Christman Shalk Ransom & Doss, P.A. who will be admitted to the Delaware Bar upon the completion of her clerkship requirements, assisted with the preparation of these materials.

14 Superior Court Rule of Civil Procedure 60(b) gives the standards for vacating a dismissal and as plaintiff provided no basis for excusable neglect other than inadvertence and explained the failure to attend the motion because counsel did not think it was necessary as the motion was unopposed, and caused repeated delays, the trial court affirmed the dismissal of the case. The Supreme Court affirmed that decision. 4.Crumplar v. Superior Court of the State of Delaware, 56 A.3d 1000 (Del. 2012) The trial court had suspicions that counsel misrepresented events in another case in an attempt to fabricate a ruling to support a position and took issue with counsel s failure to distinguish existing cases in opposite to the client s position. A large monetary sanction was awarded against counsel. The Supreme Court noted that Rule 11(b) required that the sanction should only be awarded after providing counsel with notice and a reasonable opportunity to respond and said sanctions must be awarded based on an objective standard. It noted that the Office of Disciplinary Counsel is the proper jurisdiction in which to address concerns unless they prejudicially disrupt a proceeding. Further, before sanctions are issued, notice and an opportunity to respond is required along with a determination of an attorney s ability to pay sanctions as a particular level. 5. Ceccola v. State Farm Mutual Automobile Insurance Company, 2012 Del. LEXIS 380 (Del. 2012) An attorney accepted a Rule 68 offer of judgment in a UIM case but realized there was a mistake and revoked the acceptance before the offer and acceptance were filed with the Court. The offering attorney then obtained a judgment under Rule 68 without mentioning the revocation to the Court. There was a dispute between the parties as to whether a prior payment of UM or UIM benefits should be deducted from the settlement amount. Plaintiff filed a motion to vacate the judgment showing that defendant s counsel was aware of the problem when filing the documents with the Prothonotary. The Supreme Court held that defendant s counsel manipulated the court processes in filing the judgment, stating that it will not countenance that behavior. It ordered the parties to be put back in the same position in which they were before the Rule 68 offer was made.