Day on Torts

Did you that our appellate courts had forms to help guide you through the appellate court process?

This page at the Administrative Office of the Courts website has various forms relevant at different stages of the appellate process, inlcuding a sample brief cover page, a motion for extension of time, etc.

That being said, the recent decision in  Range v. Baese reminds us of the importance of knowing and following the rules of appellate procedure.  The Tennessee Court of Appeals reversed a grant of summary judgment because "multiple deficiencies in the record on appeal" did not permit it to reach the merits.

The Court explained that "[t]he record on appeal does not contain the motion for summary judgment of defendant Baese or defendant Anderson. There is a memorandum in support of a motion for summary judgment from Ms. Anderson, but none for Ms. Baese. There are two affidavits labeled Exhibits 4 and 5 that are not associated with any motion. Furthermore, at the hearing, the attorneys and the trial judge made reference to facts gleaned from depositions, but no depositions are included in the record on appeal.  The court’s orders refer to affidavits, but this Court cannot assume from the fragmented state of the record that all of the affidavits are before us. Moreover, the appellants’ brief cites to the depositions of Ms. Range, Ms. Baese, and Ms. Anderson; 'Pl.’s Stmt.,' and an affidavit of Ms. Range. None  of these documents are contained in the record on appeal." [Footnote omitted.]

Footnote 2 (the footnote at the end of the text quoted immediately above) says as follows:  "This court’s efforts were not assisted by the briefs in this case. The appellants’ brief does not include a statement of facts, as required under Tenn. R. App. P. 27. Instead, the brief states: “In the underlying pleadings, plaintiff filed an extensive statements [sic] of fact with supporting affidavits and transcripts, which form the basis for the facts relied on in this appeal and are incorporated as if reiterated here, verbatim.” A mere reference back to the pleadings does not satisfy the requirements of Rule 27. Moreover, we find no extensive statement of facts or affidavits on behalf of the plaintiff in the record. The appellees’ briefs frequently do not give references to pages in the record."

The Bottom Line:  if you are going to be handling an appeal, learn the rules of the appellate process and follow them.  If you don't have time to do so, have your client hire someone else to handle the appeal.  Appellate work is a different breed of cat, and while most lawyers have the ability to do the work, a lawyer who intends to handle an appeal has an obligation to understand and follow the rules of appellate procedure.

Range  is Case No. M2006-00120-COA-R3-CV and was decided by the Court of Appeals, Middle Section, on January 22, 2008.  Read it here.

This is a brief in response to a defendant's motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child's loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child's likely career path. The economist was asked, then, to simply address the likely present value of the child's earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child's likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today's dollars.

The Defendants moved to exclude the economist's testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist's original report did not include a deduction for personal maintenance expenses, which the Defendants' termed as "mandatory" under the Tennessee Supreme Court's holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

We hope this brief will assist you in addressing similar issues in the future. We have faced this issue several times in the past and the defendant's motion has been denied everytime. We hope that the same thing will occur this time. Indeed, if the defendant is correct, how can one ever prove the economic component of the pecuniary value of the life of a young child? The model described above condemns the child to "average;" should a court deny the jury access to information about the average child?

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A pre-trial brief takes a lot of effort, but it can really set the stage for success before you walk into the courtroom - particularly in a bench trial.

Preparing for trial is exhausting enough, so it's tempting to put the pre-trial brief on the backburner. Don't. Give the court all of the information that should be necessary for you to win, and then a little bit more. Acknowledge the weaknesses in your case so the court isn't surprised when you walk into trial with half as good a case as your brief would suggest.

Here is an example of a brief Brandon Bass of our office recently used in a construction negligence case where a driver was critically injured in a car wreck on an Interstate exit ramp. We alleged that the State failed to use appropriate signs and other markings to advise drivers and that the failure to do so left the intersection confusing and dangerous. We used photos in the text of the brief to help her understand the confusing nature of the intersection without having to like flip back and forth to an appendix.

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Requests for Admissions under Tenn. R. Civ. P. 36 must be responded to within 30 days. If your opponent fails to respond to a request for admission, technically the facts are deemed admitted. To rely on the admission, however, Tennessee Dept. of Human Servs. v. Barbee, 714 S.W.2d 263 (Tenn. 1986) says that you need to bring the admission to the court's attention through a special motion. Not much should be required to establish your opponent simply never responded, so this form motion should take care of it. Download file

Barbee needs to be overruled - the requirement that this type of motion be filed makes little sense. In the meantime, however, this motion should be of some help to you.

Here is a complaint for filing suit in a car wreck case against a John Doe driver. The complaint references Tenn. Code Ann. sec. 56-7-1201(e), which outlines the requirements for recovering from uninsured motorist coverage. Also look to sec. 56-7-1206, which describes how to serve process on a John Doe driver. Download file

While investigating a potential case, you may find that a possible defendant has a piece of evidence you want. This is a letter requesting the potential defendant preserve the evidence and make it available for inspection. If the defendant refuses to let you view the evidence - or outright destroys it - you have a paper trail to ask for a spoiliation instruction.

Even if the evidence is in the hands of a third-party with no direct relationship to the case, such a letter may help you avoid any implication that your client passively (or actively) participated in destroying crucial evidence. Download file

Wrongful death cases are a unique breed, and the damages recoverable in a wrongful death case deserve special attention. Through the Tennessee Supreme Court's holding in Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), the jury is allowed to consider the human losses suffered by the victim's surviving family members. Unlike a personal injury case, however, the surviving family members do not hold a separate claim for loss of consortium. To the contrary, the Supreme Court made clear that it's holding in Jordan did not create a new cause of action, but merely "refines the term 'pecuniary value.'" The family members do not have their own claims, but the family members' personal losses are considered part of the victim's worth. The distinction of who owns the claim for Jordan type damages has it's greatest practical impact in the admission of evidence, the verdict form, and the distribution of proceeds among the surviving family members.
At the pleading stage, the plaintiff should try to provide notice to the defendants of each of the family members whose losses will be asserted. This Complaint covers a wrongful death where the victim leaves behind one minor child but no spouse. Note that, under Jordan, an adult child also has a right to recover, but the trier of fact takes into consideration factors that suggest the closeness and dependency of the parent-child relationship. Download file

In some cases, a personal injury plaintiff will have medical records that merit extra protection against needless disclosure. A prime example: psychological counseling records. This simple agreed protective order can allow the defendants to discover the plaintiff's mental health records, consult with experts in evaluating the records, and use the records in the litigation without destroying the plaintiff's privacy.
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FRCP 26 disclosures are due so early in litigation, it only makes sense to have a form ready. This is a fill-in-the-blank form for a personal injury plaintiff's FRCP 26 disclosures.
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A plaintiff must prove that all expenses, including medical expenses, are reasonable and necessary in order to recover for them. Without proof of reasonableness and necessity, the plaintiff fails to prove causation between the tort and the medical bill. A plaintiff who provides the defendant with an itemized list of medical expenses at least 90 days before trial gets a rebuttable presumption that the expenses are reasonable. Tenn. Code Ann. sec. 24-5-113(b). In addition to the presumption of reasonableness, a legible itemization of medical expenses is a much cleaner exhibit for trial than a stack of xeroxed carbon copy medical bills. The itemization can be admitted by the court as a summary under Tennessee Rule of Evidence 1006.
Here is a sample itemization. Download file

Tennessee Rules of Civil Procedure 8.02 and 8.03 set out the basic requirements for defenses asserted in an answer. One critical requirement is that a defendant wishing to assert an affirmative defense must state in short and plain terms the facts in support of that defense, "including the identity or description of any other alleged tortfeasors" that the defendant wishes to blame by comparative fault. The Tennessee Supreme Court has made clear that pleading comparative fault requires providing sufficient information in the answer to allow the plaintiff to plead and serve process on the person pursuant to Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).
If a defendant attempts to plead an affirmative defense without providing the information required by Tenn. R. Civ. P. 8.02, a plaintiff should file a motion to strike those portions of the answer. The plaintiff needs to know who the defendant is going to blame before the defendant submits a proposed jury form listing those persons, and needs to know the basis for the comparative fault in order to conduct discovery and decide whether to bring the other party in by 20-1-119. Even if the defendant is blaming the plaintiff, the plaintiff should be informed of the basis for that comparative fault allegation to have the opportunity to rebut the defendant's argument. This is a standard Memorandum of Law in Support of a Motion to Strike comparative fault defenses that lack sufficient information.
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Court approval should be sought for settling any case involving a minor (or disabled person), regardless of whether a lawsuit has already been filed or a compromise reached without litigation. T.C.A. sec. 34-1-121 gives the court power to approve the settlement and to waive the usual requirements of guardianship if the court determines it is in the best interests of the minor. The court's approval binds the minor to the terms of the settlement. Approval is available whether the minor is the injured plaintiff, a defendant promising some performance, or entitled to receive some or all of the proceeds of a wrongful death settlement.

This Order Approving Minor's Settlement is from a medical malpractice case in which the infant suffered permanent injuries, including cerebral palsy, due to birth trauma. While you may need to incorporate the terms of a trust or other structured settlement (as we did through a separate order in this case), this Order sets forth the basics for a court to approve the terms of the settlement, order the defendants to make the payments outlined in the settlement, approve the attorneys' fee and expenses, and approve any payments for subrogation interests.

This is an Order entered in Davidson County Circuit Court that effectively shifts the costs of deposing expert witnesses to the defendant if they disclose more than two experts on any subject. The Order requires the defendant pay the court reporter fee, transcript fee, and any expert witness fee associated with the plaintiff's discovery deposition of the additional expert witnesses. The Order comes from a motion in a medical malpractice case. For a copy of the motion and memorandum of law in support (or for a clearer copy of the signed order that has not been shrunken down to post on the web), email me.

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This is a flow sheet for plaintiff's lawyers to use in personal injury cases, starting with the first client interview and moving all the way up to the pre-trial brief. This is mainly a big picture view to keep you from missing the forest for the trees in litigation. It reminds you to check the answer to see if the defendant has pled the comparative fault of anyone else, to ask opposing counsel for a stipulation as to reasonableness and necessity of medical expenses, and the other important steps along the way in a case. While every file has its own nuances, hopefully this will serve as a nice checklist for you on the more common occurrences in a case.

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Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans' Coliseum on a night game, you are not paying enough attention. It's helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases - sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
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Getting through litigation as efficiently as possible is (generally) in a plaintiff's best interest. To avoid the "hurry up and wait" effect that can encumber a case, I send my clients a discovery questionnaire at the outset. I ask the clients to answer the questions that I anticipate needing to go forward in the case. I include the interrogatories we see most often - such as listing past residences, employers, and treating physicians. I also ask the client to gather and provide copies of documents frequently requested by defendants - recent photographs and videotapes, tax returns, and etc. At the same time, I ask my clients to gather the information and materials that will help us move the case forward on our end - copies of pertinent insurance policies, for example. The goal of all this is, of course, to have the information on hand before it is needed. Ideally, we are prepared to respond to written discovery the day we receive it, and can avoid delaying the case through extensions.
This form is one that I use in wrongful death actions. Download file. The information requested is largely the same as in a personal injury case, but the questions have been edited to specify whether I am asking about the decedent or the surviving family members.

It is a bit of a stretch to describe anything as a "form" for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

This is the standard fee agreement that I use in my own practice. Download file. I have tweaked the agreement repeatedly over the years, and plan to continue modifying it in the future as the need arises. If you want an updated form, or if you have suggestions for updates, please email me.

This is a sample form set of interrogatories and requests for production of documents and things to send to a corporate defendant in a car wreck case. I typically serve a set of discovery with the complaint in order to get the ball rolling on the case. These form questions ask the basic issues that should be dealt with in almost any case involving a corporate defendant: (1) identifying witnesses, including experts; (2) determining whether any surveillance is being / has been conducted of the plaintiff; (3) narrowing any questions as to respondeat superior; and (4) discovering the factual bases for any affirmative defenses. There are other issues that you may want to address in the initial written discovery depending on the circumstances of the case. (For example, serving a request to produce the defendant's vehicle itself for inspection to take photographs and recover data from the vehicle's event data recorder, or "black box.") Download file

TennCare has a statutory subrogation interest provided by Tenn. Code Ann. sec. 71-5-117. Under the statute, once a personal injury plaintiff's attorney is on notice that TennCare has an interest, the attorney has an obligation to contact TennCare or the plaintiff's managed care organization "before the entry of a judgment or settlement" to find out the amount of TennCare's asserted subrogation interest. Tenn. Code Ann. sec. 71-5-117(g). TennCare's subrogation interest is often small in comparison to the tort victim's damages, if for no other than reason than the amount that health care providers write off from the patient's medical expenses when accepting payment from TennCare. When a plaintiff's damages bump into the available insurance policy limits, however, TennCare's subrogation interest can be a significant barrier to accepting a reasonable settlement. Fortunately, Tenn. Code Ann. sec. 71-5-117 provides a remedy if TennCare or its MCO will not accept a reasonable reduction - a hearing by the trial judge to adjudicate TennCare's subrogation amount.

This is a basic complaint for personal injuries arising out of a motor vehicle accident with an individual defendant. Download file. It contains allegations of common law negligence and negligence per se, but does not provide for vicarious liability of any parent or employer.
Note that the prayer for relief does not include a specific monetary amount in the ad damnum. Tenn. R. Civ. P. 8.01 does not require a specific dollar amount when initiating suit, and using an open-ended ad damnum like the one in this complaint can help you avoid prematurely valuing a case. However, a long history of Tennessee case law says that a plaintiff cannot recover a penny more than the amount specified in her complaint. See generally, Gaylor v. Miller, 166 Tenn. 45, 59 S.W.2d 502, 504 (Tenn.1933). You must amend the complaint to state a specific ad damnum amount before trial or moving for default judgment. Also, be wary of waiting until the last minute to declare an ad damnum - a trial court does not abuse its discretion by denying a motion to amend to substantially increase the ad damnum amount on the eve of trial. See Benson v. Tennessee Valley Electric Co-op., 868 S.W.2d 630 (Tenn. App. 1993).