Inside District Court
the Affidavit of Service. You must always be prepared for a scenario in which you know that the Complaint, Summons, Interrogatories, and the § 10-104 packet were properly served on the defendant, but the defendant claims they were not. Tis situation may result in an objection to the admissibility of your § 10-104 packet at trial. One of the main causes of this situation is a defendant who has failed to provide all of the served documents to her attorney, coupled with poor communication and documentation by the plaintiff ’s attorney. To prevent this type of objection, it is wise to call the defense attorney after receiving the Notice of Intention to Defend, and ask if the attorney has obtained all of the documents that you served on the defendant. Tis phone call can not only prevent future discovery disputes, but will likely prevent any claim at trial that she did not to receive the § 10-104 packet. Most practitioners have served documents on a defendant,
such as interrogatories, only to have the defendant later claim that they were not received. Tis happens from mishandling by resident agents, or simply errors by defendants. When it happens with interrogatories, it is not necessarily fatal to your case, but if it happens with your § 10-104 packet, it is important that you have properly documented the § 10- 104 packet’s service in multiple ways.
Important ways of
documenting the service of the § 10-104 packet include: • Filing the certificate of service required under the statute,
•
Including the service of the § 10-104 packet in the affidavit of service, and
• Making multiple references to the § 10-104 packet in your client’s answers to interrogatories.
For example, when answering an interrogatory requesting details about the plaintiff ’s injuries, medical treatment, or expenses, it is wise to include in the Answer, “In addition to the above, please also refer to the plaintiff ’s § 10-104 packet previously served on the defendant.” One should also always obtain a returned date-stamped copy of the § 10-104 notice from the clerk, upon filing. Finally, a little communication between the plaintiff ’s and defendant’s attorneys can go a long way in reducing objections to § 10-104 packets. As the plaintiff ’s attorney, I make it a point to be the
last person to touch the pleadings and to personally seal the envelope containing the Complaint, Summons, and § 10-104.
By personally “kissing goodbye” the packet sent
for service, I can later tell a judge, if need be, that all of the materials were present in the envelope when I mailed them. I do this whether the envelope is going to the process server to be served on the defendant, or whether the envelope is being delivered restricted delivery with a return receipt as service of process on the defendant directly or its resident agent. I can
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then attest that if the defendant does not have the records, it is because they mishandled them or lost them. Although no attorney wishes to be a witness for any issue at trial, these objections generally arise with no warning, and therefore with no means by which to have your paralegal or secretary available at trial to testify to her procedures. Te issue has only emerged twice in my career, but in both instances, I was well prepared with my proffer and documentation, and my § 10-104 packets were admitted in both instances.
Jury Prayers and Transfer to the Circuit Court Although one may file an action in either district or
Circuit Court and utilize § 10-104, it is fair to say that the bulk of the actions wherein § 10-104 is utilized originate in the District Court. As many of those reading this article know, actions that are filed in the District Court, with an ad damnum over $15,000.00, are subject to a jury prayer by a defendant and transfer to the Circuit Court. Courts & Judicial Proceedings Article, § 4-402 (e). If the defendant files a timely jury demand then “the clerk shall transmit the record to the Circuit Court within 15 days.” Maryland Rule 3-325 (c). Presumably, the plaintiff would have filed the § 10-104 notice with the Complaint, and therefore, upon a
Trial Reporter / Summer 2012 35
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