Day on Torts

Regular readers know that one web site I frequent is that of the Federation of Defense and Corporate Counsel.  Its  "Hot Cases" section frequently has cases from other jurisdictions that I find interesting and its quarterly magazine has articles I enjoy reading.

Here is an interesting article that discusses how to introduce electronic data into evidence.  It is written by Seth Gausnell and Allison Stoll of St. Louis.

At a minimum, the article reminds us of the simple fact that we must not only gather evidence during informal and formal discovery but we must be able to get that evidence before the fact-finder.  Sometimes that task is easy, such as when the witness actually saw an event occur.  Other times, it is much more complicated.

We all get a little lazy about keeping up with the law of evidence because (a) there are so few trials and (b) most lawyers will not require their opponents to jump through every hoop.   However, the fact of the matter is that (a) some lawyers will make you undertake that effort; (b) some judges will make you do so and (c) you are less likely to be forced to jump through the hoops if your opponent thinks that you know how to do so.   There is also that matter called persuasion: sometimes, not all the time, but sometimes you want to jump through the hoops in enhance the credibility of evidence.

So, this article is shared with the goal of helping you think about the foundation necessary for electronic evidence, an area each of us are encountering with increasing frequency.

I have written on the subject of case selection on this blog in the past.  Here is a  link  to an article on the subject that I had published recently in Trial  magazine.  (Available only to AAJ members).

I gave a speech on this subject recently in Memphis and generally received excellent reviews.  However, one attendee blew me out of the water, basically saying that I was trying to turn the law into a business.

Let me respond here (and I have no choice, since the evaluator was anonymous).

"I am sorry my speech made you uncomfortable.   The point of the article (and the speech) was to make you aware of the time it takes to do what you do and what it costs you to do what you do.  To be sure, the recognition of the fact that you are not efficiently using your time may create anxiety, but the goal of the entire exercise of evaluating how you spend the scare resource of time is to help you effectively use it in the future (and therefore not continue to waste it).

However, I do not apologize for attempting to cause attendees at a continuing legal education program to think.  We can all benefit from thinking about how we can efficiently utilize our time to accomplish what we want to accomplish during the limited time we have on this planet.   We also need to a think about how we will provide food and shelter (and perhaps more) to ourselves and those who depend on us for support.  For those of us without a trust fund, that means spending some amount of time working in our chosen profession that will allow us to earn income.  And especially if we work for ourselves (or hope to)  we need to understand that (a) time is limited and (b) there are costs attendant to running a law office that need to met.

Now, there are plenty of lawyers  in private practice who go through life not thinking about  such things.  They go to the office, they accept cases, they  work, and they go home (sooner or later).  Some of these lawyers will do well financially.  Most of them will not.  The choice is theirs.

Unfortunately, many lawyers make the wrong choice because no one has ever talked with them about the issue.  These lawyers came out of law school, went to work for someone else and simply began to practice law the way the people around them did.  Some of them were lucky enough to have a good experience and learned how to do it right in every respect.  Others of them learned how to practice law but not how to do so efficiently.  Others of them learned only bad habits and are now mired in a professional and personal mud-hole.

So, the goal of my article and speech was to let people know that time is money and that every lawyer should take some time to think about how they spend their time.  I made it perfectly clear that lawyers should choose to do some amount of pro bono work and some number of cases that were not economically viable but were otherwise consistent with the values of the lawyer.  My point  was that those decisions should be made consciously and that a lawyer should be careful not to overwhelm his or her practice with such cases and suffer an inability to meet overhead and personal financial needs.  The failure to think about case selection and to have an appropriate mix of cases leads to decreased job satisfaction, stress, and an increased risk of alcohol and drug abuse.

In  conclusion, my point was not that the profession of law should be a business.  Rather, it is my belief that in the long run we can function as professionals only if we efficiently use our gifts and talents in a way that allows us to serve our clients while at same time meeting our overhead, our personal financial needs and our need for  time for ourselves and our families.  The failure to keep these things in appropriate balance will result in harm.

Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated again.  The update includes ten of the most recent tort cases and now includes all new Tennessee appellate court decisions released since October 1, 2008.  The current update includes cases through February 9, 2008.

In addition, two new sections were added to the book.  "Other Similar Incidents" was added to the Products Liability chapter and "Sudden Emergency Defense in Medical Malpractice Cases" was added to the Medical Malpractice chapter.  Both of the new sections will be incorporated in the 2009 version of the book.

To use this service, read the relevant section in the book, and then go to this page at the book website, scroll to the relevant section, and see if any new cases have been released on that subject.

Don't have the book?  Order it here.

The Tennessee Board of Professional Responsibility has a  website that includes a section that allows you to search ethics opinions by key word.  Of course, it also has a complete set of the displinary rules.

The Eastern Section of our Court of Appeals has ruled that Rule 5A(4)(c) of the Tennessee Rules of Civil Procedure means what it says and that a party cannot fax file an affidavit opposing a motion for summary judgment .

Rule 5A (4)(c) says that “The following documents shall not be filed in the trial court by facsimile transmission: . . . (c) A will or codicil to a will; a bond; or any pleading or document requiring an official seal . . . .”     Affidavits require a seal.

A technicality?  Certainly.  The rule?  Certainly.  Are you ever going to take the chance of filing an affidavit by fax just to argue to the Tennessee Supreme Court that a trial judge should not follow the rule?  Nope.

The case is Wilson v. Schwind,  No. E2007-00305-COA-R3-CV  (Tenn. Ct. App. 12/28/07).  Read the opinion here.

Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated to include all cases through Sunday, January 13, 2008.

The updates work like this.  After you have found the leading case summarized in one of 233 sections of the book, go to the "Free Updates" page of the book website, scroll down to the relevant section, and you will any decision released since October 1, 2007 on that subject.

Don't have the book?  Well, my bias is obvious, but I must say I have been very gratified by the comments I have received to date.  I have had multiple people tell me they use it every day.  I was in three different law offices the other day and saw the book open on lawyer's desk.  Last week one purchaser placed a second order for the rest of the lawyers in his office.  Even judges have begun ordering it.

Potentially interested?  Read a sample chapter here, see the Table of Contents here and go here to purchase.

The subject of court approval of attorney's fees in a case involving minors addressed in this post and this one have given rise to a discussion on the TAJ listserve about the wisdom of the decision.  The debate has been interesting.  One point made by several commentators is that  some judges do not understand the economics of law practice.  I first made that point on this blog here and said I would address it. 

Here we go.

I was having dinner with several judges one night last spring and the subject of depositions came up.  I mentioned that the cost of depositions was outrageous and that the cost of getting a transcript of a full-day deposition was almost $2000.  To a person, they were shocked.  I took the opportunity to talk about the cost of malpractice insurance, rent, etc. and once again they were shocked.  That conversation gave rise to the comment in my previous post is that we need to better educate judges what it costs to run a law office.

One explanation for judge's not being aware of the cost of running an office is that they are out of touch.  That is probably true, but it is understandable.  If you don't regularly buy something you have no particular reason to keep up with the changing price of it.

At the age of 13 I began  what became almost six years of work in  grocery stores.    I clearly recall that on average a paper grocery sack of groceries would run $10.00.  Obviously each sack could run more or less, but it was a safe bet that if Mrs. Sternitsky bought six bags of groceries she would leave the store with $60.00 less in her wallet than when she started. 

Thirty-five years later my estimate is that groceries run about $20.00 per plastic sack that is half the size of the good ol' paper sacks of my youth. 

But I wouldn't know that if I didn't regularly go to the grocery store. 

And that is the problem with judges.  Its not that they don't care about what lawyers pay in overhead - it is that they just don't know what they pay.  And they have no reason to know because they don't have to go to the grocery store.

New judges know.  I can guarantee you that Chancellor Thurman in Cookeville knows - he just left private practice a little over a year ago and he remembers it well.  But it would be rare indeed for a judge who has been on the bench for twenty years to have any idea on what it costs to run a law office.

Location makes a big difference, too.  Ten or so years ago a lawyer from a small town and I were talking law office economics.  He was paying his long-time secretary one-third of what I was paying mine, and we were both paying market rates.   Rent in Nashville is often double or triple what it is in a more rural area.

So, let's start a discussion on the subject.  What is your per lawyer overhead cost?  For these purposes I am including every expense item in your office except anything you pay yourself, anything you pay  to or on behalf of another lawyer, anything you pay to or on behalf of a paralegal, and contingent fee case expenses.  Paralegal salaries and benefits are typically not included  in such calculations because they are treated as time-keepers; i.e. in firms that do hourly work they could bill for the work they do.  (There are varying definitions of paralegal out there.  For these purposes if you have an employee who regularly does typing, filing, etc. for a lawyer consider the employee part of overhead.) 

The goal is to come up with the cost of running your law office on a per lawyer basis.   If you have not had a constant number of lawyers throughout the year come up with a fair estimate, using a fraction if necessary.

I'll go first.  Our overhead runs about  $115,000  per lawyer per year.   My  overhead is a little higher than it should be because (a) we signed a lease at the height of the market with traditional escalator clauses and the rate is now 20% above market and (b) our space is inefficient.  This factor alone raises overhead $10,000 per lawyer (or  more).

I was talking with a friend who is a partner in a major Nashville firm and  he told me that their overhead runs $180,000 per lawyer per year.  Assuming that a lawyer in that firm "bills" 1800 hours per year, the overhead cost per lawyer in that firm is $100 per hour.  If the lawyer's income is $180,000 per year, the cost to the firm is a total of $200 per hour for each hour the lawyer can bill and collect.

The traditional law firm rate-making model assumes a profit margin of 33%.  It is easy to see why we have 6 and 7-year lawyers charging upwards of $300 per hour in these large firms.  

 If you have overhead at $100,000 per lawyer per year, you hire a young lawyer and pay him or her $70,000 per year,  you need that lawyer to generate $255,000 in income to meet a reasonable profit goal of 33% (a profit of $85,000).  By the way, your "cost" of that young lawyer is $100 per hour at 1700 "billable" hours per year. 

So, let's share what we pay in overhead and then find a way to let judges know what it costs to run an office.  If you don't want to share your data with your name email the figure to me and I will just post your city and your overhead number.  I will keep your information confidential.

On December 14 I wrote about an opinion that addressed the issue of charging  fees to minors.  The opinion was written by Judge Walter Kurtz, a Nashville Circuit Court judge sitting by designation on the Tennessee Court of Appeals.

I have been hearing some negative comments about this opinion.   I respectfully disagree with them and submit that the opinion is not only an accurate statement of Tennessee law but is a correct result on the facts.

What upsets some lawyers is this language: "The most striking void in the record is the lack of any precise information as to the amount of time spent on the case by counsel for the plaintiff."  Judge Kurtz explained further in this footnote:  "Courts and commentators have observed that time records – time spent on the case – are “central” to the calculation of attorney’s fees."  [Citations omitted.]

I suggest that lawyers should instead focus on what was not before the Court of Appeals.  The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent.  Nor did he introduce into evidence any information relevant to  the RPC 1.5(a) factors that govern fees issues.  Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

I am not saying that this lawyer is not entitled to a one-third fee.  Judge Kurtz did not say this lawyer was not entitled to a one-third fee.  What Judge Kurtz said is that there was not sufficient evidence in the record to justify a one-third fee. 

The message to lawyers is clear:  make a record.  To be sure, a local trial judge knows who you are and probably takes into account the RPC 1.5(a) factors in reaching a decision on fee requests.  But an appellate court is forced to look only at the record.  And the absence of information in the record will cause a significant problem on appeal. 

How do you make a record?  The safest way to do so is to have contemporaneous time-keeping in any case where a fee must be approved.   The needs to be introduced into evidence via an affidavit, and that affidavit needs to address the other fee factors.  Counsel may want to introduce the affidavit of another lawyer familiar with fees charged in similar cases and the claimant's "experience, reputation, and ability."  To be sure, it is difficult to "toot your own horn," but the evidence needs to be in the record. 

One last related point.  We lawyers need to do a better job helping judges understand the cost of running a law office.  I will address that subject in a later post.

Do you want to know the law of collecting attorney's fees when you represent a minor in personal injury case?   Do you want to see how you can end up in the Court of Appeals when you seek an attorney's fee in such a case?

Read the opinion in Wright v. Wright,  No. M2007-00378-COA-R3-CV  (Tenn. Ct. App. Dec. 12, 2007).

The nice folks at Justia (which did our firm website and my book website) also have a free service for searching for federal court filings.  The site allows you to search or browse for recent orders or opinions issued by just about any federal court in the country. You can search by the name of the party, the type of lawsuit, the federal district court, date, or entering keywords into the full-text search. If documents are available, you can view them, post them to a website, or download them as PDF files.

Do you document substantive conversations with other lawyers?  Once upon a time, it was unheard of to do so and some felt it was downright offensive.   A lawyer can and should be trusted to stick by an understanding that is reached with another lawyer, the theory went, and to confirm a conversation in writing was a sign of mistrust.

Of course, there has always been and will always be lawyers who cannot be trusted.  I know a few.  You know a few.  They are the scum of the profession,  who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).

Today, however, I think a quick note or email confirming a substantive conversation is a good thing - one that avoids the chance of innocent misunderstandings in the future.  My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.

So,  how do you write such a communication without sounding like a mistrustful jerk? 

1.  Use introductory phrases like this:  "This will confirm our conversation of ...."  or "this will follow-up on our telephone call of ...."

2.  Repeat the understanding accurately.  This is not a time for creative writing.

3.  If you cannot remember the exact substance point that was reached in the conversation, admit it, state what you think the resolution of the point should be, and invite comment.  It is far better to get the misunderstanding resolved now while the issue is fresh and your adversary has not taken a position (or you have not taken a position) based on a misunderstanding.

4.  If you think of another point that should have been discussed but was not, simply state that,  state your position, and invite comment.

5. Give your opponent an opportunity to correct any mistake in your summary of the conversation.  And tell your opponent that if you do not hear back from them to the contrary you will assume that your statements are correct.  Give your adversary a reasonable time under the circumstances to respond and, if you are taking critical steps based on a failure to respond to your inquiry (particularly if you imposed a short deadline) you would be well-advised to call your adversary and make sure there is no misunderstanding.

We all have lots to do in this stress-filled profession.  Innocent mis-recollections can occur.  We can reduce our stress by taking the simple step of communicating with our adversary in a non-threatening way and confirming details that can get lost over time.  Doing so will allow us to keep our eye on the ball - the speedy resolution of a  disagreement between clients - as opposed to getting into a fight with opposing counsel.

Those of us in small firms struggle with many of the same issues.  One of those issues is the decision to hire our first (or hire another) associate?

I enjoy the Legal Ease Blog and read this article that provides some guidance on the issue. 

Enjoy.

The Tennessee Supreme Court has asked for public comment on proposed changes to Tennessee Rules of Civil Procedure, Appellate Procedure,  Evidence, Criminal Procedure and Juvenile Procedure.

The most significant proposed rule change is the change to Rule 8.01.  The proposed rule change says as follows:

8.01 Claims for Relief.–A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for the relief the pleader seeks, including a specific dollar amount if damages are sought. Relief in the alternative or of several different types may be demanded.

The proposal to require the statement of the amount sued for at the time the original complaint is filed should be rejected.  There is no reason to require that the complaint state the amount sued for and, as far as I am concerned, the rule should prohibit a statement of the amount sued for in the original complaint.  It is extremely difficult to predict the amount of damages that will be sought at the beginning of litigation.  Some lawyers use them to grab headlines, and unfortunately it is those numbers the public thinks about when evaluating the merits of our civil justice system.   No good can come of this proposal.

Some will argue that insurance companies need a statement of the amount sued for to calculate reserves or to advise insureds of potential excess judgments.  Baloney.  Any insurance adjuster who ever set a reserve based on a plaintiff lawyer's ad damnum is no longer working in the insurance industry.  Insurance adjusters make reserve decisions in federal court without this information and, to my knowledge, the world has not come to an end.

Please write to the Tennessee Supreme Court and encourage it to reject the proposed change to Rule 8.01.  Here is a copy of the Order seeking public comment; the proposed changes are attached to the Order.

There is a middle ground.   A amendment could be drafted to require the plaintiff's lawyer to state an ad damnum no later than sixty days before trial.   That would give defendants information they say need but keep early, ridiculous numbers out of the press.

My new book, referenced in this post, will be available November 1, 2007, not 2008.   Sorry for the error.  I guess I can pass it off on age - I turn 51 (or is it 52?) tomorrow.

The book goes to the printer today.  The first section has 66 chapters and 233 featured cases on 233 tort law topics; each case is  summarized to address the indicated legal topic to save you time and help launch your research effort.  This section of the book totals 439 pages. 

The next 500+ pages contain selected statutes as well as the rules of evidence, civil procedure, and appellate procedure.

More in a later posts. 

On November 1, 2008 my new book will be available for sale.

My goal for this book is to provide a one-volume resource for Tennessee tort lawyers who are looking for a quick reference to the leading case on a given point.  Need a quick summary of the law of informed consent?   In less than one minute you will be able to find the leading case on point and use the concise summary of the holding in that case as a launching point for additional research.  Receive a call on a potential defamation case?  In less than one minute you will find a 13-page chapter that summarizes the leading Tennessee cases on the topic and references over 50 more cases,

The book, called  DayonTorts:   A Handbook for Tennessee Tort Lawyers,  organizes the leading Tennessee cases by topic.   Many of the summaries also include citations to other cases of interest on the particular legal issue.   In total, over 1000 cases are cited in the book.

How did I select the cases?  Well, as some of you know, I have read every single tort case that has been released in Tennessee since 1993, the year I founded the Tennessee Tort Lawyer Letter.  That is well over 2000 cases, and while I don't pretend to remember all of them (or even twenty percent of them) I do have a pretty good handle on the holding of the leading cases once I see the caption.  So, I started reading and taking notes with a list of topics in hand (which grew as I read).  All in all I re-familiarized myself with about 1000 cases,  some going back several decades because there was not a more recent case on point.  I then took the latest, greatest cases that discussed a given topic and they were summarized for this book.  Tennessee Supreme Court cases trumped Court of Appeals cases. Very few unreported cases are used but  were used occasionally because there was no recent authority on the subject.

Also included in the book is the complete text of over 500 Tennessee statutes that I have identified as being of interest to tort lawyers in Tennessee.   The statutes have been updated to include the laws passed in the last session of the General Assembly.  To select the statutes to be included in the book I started with Volume 1 of the Code and started reading.  (Of course I didn't read every word of every section - the titles of the chapters and sections gave me what I needed to know.)  What I ended up with is a collection of the statutes  on jury selection, discovery, service of process, trial, the motor vehicle code, the products liability act, and a bunch of other stuff that will be available at your fingertips in one volume.  

Finally, the book includes a complete set of the rules of evidence, civil procedure, and appellate procedure.  

The book totals over 900 pages.

The book will be updated on a new website.  The site, www.dayontortsbook.com, is not ready for viewing, but when it is complete (November 1) it will permit readers of the book to see the latest cases on the topics of interest to them organized once again by book chapter / subject.

The book will be re-published every year so that tort practitioners will have ready access to the newest statutes, cases, and rules without having to go to the web for updates.

Over the next few weeks I will be posting sample sections from the book to give you a sense of what it can do for your practice.  In law, time is our stock in trade (Abraham Lincoln) and I think you will find that this book will help you find key cases more quickly, giving you to  time to do more productive work.

I hope that you - every one of you - buy the book.  In fact, I hope you buy two copies, one for the office and one for your home (for quick answers to those questions that awaken us in the middle of the night).  But, seriously, I hope and in fact believe that every one of you who buy the book will be able to use it to better serve your clients. 

Finally, before anyone asks, "yes, I am still practicing law."   I received material assistance from others on preparing this book for publication and I will talk about that in a later post.  However, I spent my share of early mornings and late nights sitting in my chair with my feet up punching away on my keyboard.  I also gave up some vacation time to get it done.   Writing a book on substantive law really gives a greater ability to serve my clients, so I view the time I spent is an investment in my practice.  

I will be providing information about how to purchase the book in the next few weeks.

You may not like the rules.  You may think the rules are unfairly applied.  But here is a case that makes it clear that  (a) the failure to follow the rules can have significant consequences and (b) if you make a mistake it is important not to make matters worse.

Wade v. Soo LIne RR Corp. is a case out of the Seventh Circuit Court of Appeals.  The appellate court affirmed dismissal of the plaintiff's case because of conduct by the plaintiff's lawyer.  Here is a brief summary of the conduct at issue:

Soo Line argued, first, that Brugess and his firm made improper payments to [medical provider] TOS to influence its diagnosis of Wade, and, second, that Wade had tried to conceal these damaging documents and, even after being caught, tried to conceal them again and, when their absence was detected once more, tarried in turning them over. The district court concluded that the money was payment for an independent medical examination rather than a kickback, and while “not per se improper”, was “certainly an unsavory ‘sweetening of the deal.’ ” The court ruled that, although the payments did not themselves merit sanctions, failure to turn over highly relevant documents justified not only dismissal with prejudice but also an order requiring Brugess to pay Soo Line’s fees and costs. In the district court’s view, the dismissal would not hurt Wade, because “[g]iven the documents uncovered by Mohan, the grant of summary judgment for Soo Line is almost a foregone conclusion.”

Shoud the case have dismissed?  Here is the 7th Circuit's ruling on that issue:

Wade didn’t assert a privilege or even say that the documents had been withheld by mistake. The district court could and did conclude that Brugess (or someone else on the plaintiff’s legal team) deliberately concealed documents known to favor the adversary; that’s sufficient evidence of bad faith. Attorneys’ actions are imputed to their clients, even when those actions cause substantial harm. A litigant bears the risk of errors made by his chosen agent. E.g., Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 396–97 (1993); Johnson v. McBride, 381 F.3d 587 (7th Cir. 2004); United States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir. 1994). Sanctions for misconduct are within the discretion of district judges, National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976); In re Golant, 239 F.3d 931 (7th Cir. 2001), and dismissing this case was not an abuse of discretion.

The plaintiff's lawyer was ordered by the district court to pay sanctions of $110,000.  The lawyer said  that Rule 37 allows sanctions to be imposed on parties, not their counsel.  Interesting position - punish my client, not me.  The Court of Appeals was not impressed.

Maybe Wade could have shifted the expense to Brugess in turn. A lawyer whose misconduct results in sanctions against his client has committed malpractice; if Wade did end up liable on account of Brugess’s misconduct, he would have a claim against Brugess for (at least) the  amount of the sanctions. (Why make the argument in the first place, then? Does it affect whether Hoey & Farina’s malpractice insurer pays?) The possibility that Wade could shift the cost of the sanctions back onto Brugess, however, does not mean that Wade has nothing at risk from his lawyers’ argument. If Brugess had agreed to indemnify Wade for any sanctions assessed against him (and Brugess were sure to be solvent), then there would be no conflict, but that doesn’t seem to have happened. We learned after argument that Wade and Hoey & Farina had negotiated toward a settlement of Wade’s possible malpractice claim, but apparently no settlement was reached. For all we know Brugess intends to fight any attempt to collect the monetary sanction from him.

When we asked Brugess at oral argument about the conflict of interest, he noted that Wade had additional representation after the district court’s decision. Wade’s supplemental lawyer, Robert A. Montgomery, apparently engaged to negotiate toward settlement of Wade’s potential malpractice claim, told us by an affidavit filed after argument that Wade had consented to the filing of a joint brief with Brugess. Yet the only lawyers listed on Wade’s two briefs are Steven P. Garmisa, George T. Brugess, Richard A. Haydu, and Frank E. Van Bree, all of Hoey & Farina. Circuit Rule 26.1 requires all attorneys representing a private party to file a disclosure statement giving, among other things, the names of all firms that represented that party in the trial court or are expected to do so in the court of appeals. While four attorneys from Hoey & Farina filed statements under the Rule, none of them listed any other firm. And while the Rule requires that “[e]very attorney for a non-governmental party or amicus curiae . . . must file a statement under this rule”, Cir. R. 26.1(a), Montgomery did not file a disclosure statement. Fortunately his role, at last revealed, has notcaused a belated recusal.

Montgomery’s affidavit stated that he had read the final brief—complete with an argument that would leave Wade personally responsible for any financial sanction—and “did not feel that corrections, deletions, or additions needed to be made.” His affidavit does not say that he consented on Wade’s behalf to this conflict of interest (or had authority to do so), that he discussed the brief’s contents with Wade, or that he thought the brief’s arguments to be in Wade’s best interests. Montgomery’s failure to look after his client’s welfare, however, does not excuse Brugess’s and his partners’ violation of their duty to place their client’s well-being above their own. His negligence doesn’t justify their misconduct.

Now what?

The judgment of the district court is affirmed except for the amount of fees and costs awarded to Soo Line; that portion of the judgment is vacated and remanded for recalculation. Wade’s attorneys, Steven P. Garmisa, George T. Brugess, Richard A. Haydu, Frank E. Van Bree,
and Robert A. Montgomery, are ordered to show cause by September 19, 2007 why they should not be disciplined by this court pursuant to Fed. R. App. P. 46(b)–(c) for conduct unbecoming members of the bar. We will forward a copy of this opinion to the Northern District of Illinois and the Attorney Registration and Disciplinary Commission of Illinois for such consideration as they deem appropriate.

Other than this opinion, August 29, 2007 was a good day for these lawyers.  Read the entire opinion here.

Put this is the "You ain't gonna believe this" department.

A New Jersey firm admitted "that an associate -- with two partners' knowledge -- asked a bank representative whether a client, Kennedy Funding Inc. of Hackensack, could purchase the personal mortgages of the attorney suing Kennedy Funding in four federal fraud cases.  Such a purchase would have made Kennedy Funding, a commercial lender, the holder of the home and office mortgages of adversary Gregg Trautmann, who has a firm in Rockaway, N.J."

The judge handling court cases was not amused.  Read more here.

The opening paragraphs of this opinion from the Supreme Court of Missouri sum up the case nicely:

"This case involves a motion to enforce a settlement agreement in a tort action. The Eatons contested the motion alleging they did not authorize the figure offered by their dismissed attorney that was accepted by the defendants.

The Eatons originally filed suit for property damage to their home allegedly caused by groundwater made toxic by waste discharged by a nuclear fuel processing operation conducted by the defendants. They refused to sign a proffered agreement on the basis that they never authorized the settlement figure and had dismissed their attorney.

The defendants filed a motion to enforce the settlement agreement. The sole factual issue at the trial court was whether the Eatons' attorney had authority to make a specific monetary offer to settle the lawsuit. The hearing on this motion was limited to "oral argument" by counsel. There was no transcript of the oral argument on the motion to enforce settlement – no record save for the bare legal file created in circuit court.

Concluding that the Eatons' attorney had apparent authority to settle, the trial court entered judgment enforcing the settlement agreement. The Eatons appeal. This Court granted transfer after opinion by the Court of Appeals, Eastern District, and has jurisdiction. Mo. Const. article V, section 10. The judgment is reversed and the case is remanded."

The bottom line:  Always think about making a record.   Winning a motion (or a trial) doesn't mean anything (except loss of time and money) if you don't have a record that can stand appellate review.

The case is Jerry L. Eaton and Clarissa L. Eaton v. Mallinckrodt, Inc., et al., SC88122 (Missouri S. C. May 15, 2007).  Read the opinionhere.

A young lawyer called me with a question the other day.  He was looking at a case that required a significant amount of experience to handle it appropriately, and was clearly struggling.  He wanted to keep the case (it had tremendous potential), but I could hear during several moments of silence in the conversation that he knew he lacked the ability to handle it the way he knew it should be handled.

I finally did something I had not done in years - I asked him why he didn't get someone to work with him on the case, to refer it to a more experienced lawyer.  He said, "Can you do that?" and then "how does that work?"

I must say I was surprised.  I started practicing law in 1981 with a fantastic lawyer, John T. Conners, Jr.  Much of Mr. Conners work was from referred to him from other lawyers.  Therefore, I quickly came to understand that lawyers routinely refer cases to other lawyers and never really gave the issue much thought.  I assumed that everyone knew what I knew.

I was wrong.  Indeed,  my co-shareholder Rebecca Blair had a similar inquiry recently, which tells me that there are lots of people out there who don't know about the referral system.

So, here is the deal:  Yes, our law firm accepts cases on referral from other lawyers.  In fact, the vast majority of our work comes from other lawyers.  Many lawyers send their clients to us when they get a case outside their daily practice area.  Other lawyers ask for our assistance with they get a particularly complicated case in their practice area - a case that will require a tremendous commitment of time and/or money.  And still other lawyers ask us to work with them when they obviously have the skills and money to handle the case but they simply have too many other irons in the fire to handle the case in a timely, responsible fashion.

It is very difficult to have the large number of files the average lawyer handles and throw a significant personal injury or wrongful death case in the mix.  A significant case can require hundreds or even thousands of hours of work, even for people who routinely handle those cases.  So, what many lawyers have found is that throwing a major case into the mix it adversely impacts all of their other clients and adversely impacts cash flow.  Then, in an effort to tend to those clients, the major case sits around much longer than it should, increasing the risk of error and potentially diminishing the value of that case.  Lawyers in that position come to realize that their clients - all of their clients - are much better off getting some help with that case on the front-end.

"But." this young lawyer said to me, "I hate to lose the fee."   Fair point.  Except Tennessee law permits the payment of referral fees to lawyers in a manner consistent with the Rules of Professional Conduct.

Rule 1.5(2) provides that " A division of a fee between lawyers who are not in the same firm may be made only if:  (1) the division is in proportion to the services performed by each lawyer or, by written consent of the client, each lawyer assumes joint responsibility for the representation; and  (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable."

We routinely share fees consistent with this rule.  Some lawyers do not want a referral fee - they do not want to have their name on the contract and have the risk associated with it.   But lawyers who are willing to undertake that risk or who are willing to have some hands-on activity in the case are permitted to accept a referral fee. We pay hundreds of thousands of dollars(indeed, sometimes over a million dollars) to such lawyers every year.  Lawyers are routinely pleasantly surprised when they receive a referral check and reflect on the number of hours they spent to earn the fee.

I think the referral system is a fair one.  It rewards lawyers who work in the trenches, develop relationships with clients,  and for one reason or another are not able to handle a given case at a given time.  It helps clients - it gives them access to a larger team of lawyers who often handle a larger volume of "bigger" cases, and therefore are more familiar with the particular challenges of those types of cases.  It does not cost the client more money - we charge the same fee whether a client calls us directly or the case is referred by another lawyer.  It works for everyone.

One last point on the issue of my practice.  I occasionally meet people who ask me if I still practice law.  Part of me is flattered - I guess some people think that I have done well enough to just quit.  And part of me is concerned - do I spend so much time with the newsletter, book and blog that people think I don't have time to practice?

Here is the answer.  I practice half-time -  twelve hours a day.  Seriously, I do put in long days and vast majority of those days are hands-on work with clients.  I do the other activities early in the morning, often starting at 4:00 a.m. and getting a couple of hours in before the kids have to go to school.  I love to write,  to stay current on developments in  tort law around the country, and to share what I have come to learn with other lawyers.  I believe that a rising tide lifts all boats, and by sharing what we know we improve the state of the law and the perception of the legal community.  I plan to continue to do it - and when I retire from the active practice of law I intend to continue to do it.

But retirement is way off, both because I still love practicing law and because on or about August 3 my wife and I will be experiencing the birth of our daughter.  This yet-unnamed child will make sure that I continue to work for the next several decades.

The bottom line:  Yes,  we accept cases on referral.  We split fees consistent with the ethics rules.  We accept  all types of personal injury and wrongful death cases across the state.  We would like the opportunity to work with you and help you serve your client.

Does use of the Internet increase our risk of liability?   This booklet from Chubb Insurance Company discusses our some of the risks presented - and how to address them:

Risk of Unintended Client Engagements

Risk of Disclosing Confidential Communications

Risk of Early Destruction of Electronic Documents

Risk of Instant Messaging

Risk Arising from the Unauthorized Practice of Law

Risk of Security Breach

Have you listened to a podcast yet?  Well, if not, here is a good place to start.

The ABA Section of Litigation has a dozen or so podcasts for your listening pleasure.  For example, you can listen to Ten Rules for Managing Electronically Stored Information, How to Tell a Judge He Screwed Up, Eight Tips for Better Voir Dire, Quick and Dirty Research,  or Ten Rules for Managing Electronically Stored Information.

Enjoy.

There have been two bills introduced by Senator Spector that, if passed and signed into law, would be good for those of us who do contingent fee work and for the clients who hire us.

S. 813 provides as follows:

(a) In General- Section 162 of the Internal Revenue Code of 1986 (relating to trade or business expenses) is amended by redesignating subsection (q) as subsection (r) and by inserting after subsection (p) the following new subsection:

(b) Effective Date- The amendments made by this section shall apply to expenses and costs paid or incurred after the date of the enactment of this Act, in taxable years beginning after such date.

His comments on the bill:

Mr. President, the first bill which I am introducing, and that is to permit attorneys to deduct payment of litigation costs as ordinary and necessary business expenses. In litigation, illustratively on a personal injury claim, the plaintiff frequently is without funds and can only move forward with the litigation on a contingency fee basis. In these situations, it is customary for the attorney to advance the costs of filing fees, depositions, and other costs there may be. The Internal Revenue Service has taken the position that those are loans from the attorney to the client, so the attorney cannot immediately deduct litigation payments as ordinary business expenses. If the litigation costs are treated as ordinary business expenses, the attorney would be able to deduct the expenses as they are incurred.

Again, I ask that the Record contain my extemporaneous comments and the explanation as to why there is some repetition in the formal statement which I now ask unanimous consent be printed in the Record, as well as the two bills which follow these two pieces of legislation which I am introducing.

...

In part because the IRS deems these payments to be loans, and State canons of legal ethics--based on common law of medieval England--prohibited loans to clients, contingency fee lawyers for many years were not able to pay these expenses. In the latter part of the 1800s States began permitting attorneys to advance client expenses as long as the client remained obligated to repay the advances. Even for their indigent clients, if there ultimately was not an award, attorneys were required to seek repayment. The ABA Model Rule has been updated to state that "a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter." Many States model their rules on these Model Rules, and their ethics rules have

This change will encourage lawyers to represent those who may not otherwise be able to pay an attorney for his work. This is good policy and common sense.

S. 813, also introduced by Senator Spector, provides as follows:

SECTION 1. ABOVE-THE-LINE DEDUCTION FOR ATTORNEY FEES AND COSTS IN CONNECTION WITH CIVIL CLAIM AWARDS.

(c) Effective Date- The amendments made by this section shall apply to fees and costs paid after the date of the enactment of this Act with respect to any judgment or settlement occurring after such date.

The Senator's comments on this bill:

Mr. President, I have sought recognition to introduce legislation that will allow taxpayers to subtract from their gross income, in arriving at adjusted gross income, the attorneys fees and court costs paid by, or on behalf of, the taxpayer in connection with any income from any settlement of legal claims or award of damages. This is known as an "above the line" deduction.

This clarification of tax law is common sense and will ensure consistent and fair treatment of taxpayers, especially those who can get representation only on a contingency fee basis. I encourage my colleagues to consider this legislation and join me in helping to correct this unfair situation.

To keep an eye on the bills go here.

The Tennessee Rules of Civil Procedure have been amended.  The amendments are effective on July 1, 2007.  See the amendments here.

The two most significant changes are to Rule 15 and Rule 56.  Rule 15.01  has been amended to add the following language:  "For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required."

Rule 56.04 has been amended to add the following language:  "The trial court shall state the legal grounds upon which the court denies or grants the motion, which shall be included in the order reflecting the court’s ruling."

This South Carolina case reminds us of our responsibilities when receive money on behalf of a client and are aware that a portion of the proceeds have been assigned to a third party.

The Court found that the lawyer was aware of the assignment and went on to say as follows:  "A letter of protection offers one method protecting a creditor’s interest. However, the absence of a letter of protection does not automatically relieve an attorney of a duty under an assignment."

The Court cited several cases in support of its position, as well as these sections from 1.15 of the RPC:

"d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive . . . .

(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute."

The case is Moore v. Weinberg, Opinion No. 4209 (S.C. 2/20/2007).  Read the opinion here.

Plaintiff's lawyers need to be aware that legislation passed last year by the General Assembly requires the reporting of fees and expenses received as a result of medical negligence litigation in 2006.  The reports are due at the offices of the Department of Commerce and Insurance on or before April 2, 2007.

The instructions for preparing the form  it may be found here.  The form itself is found here.

As one would expect, there are some problems with the reporting forms.  I urge you not to simply object to filing the form (there are fines associated with not submitting the information on time) but instead fill out the form as completely and accurately as you can and accompanying it with an appropriate cover letter indicating the problems you identified.  Such a letter will not only protect you from being accused of submitting inaccurate information (because of deficiencies in the form) but also will help the Department understand the shortcomings of the form so that it can be redesigned.

Most of our cases are referred to us by other lawyers.   The instructions do not address how to handle this situation and avoid double reporting.  I will find out what I can about this and let you know

I am going to republish this post every week so that people who have something better to do with their time than checking this blog every day will be alerted.  I apologize in advance to my regular, devoted readers for the repeated postings but I want to make sure no one misses the deadline.

This fascinating article is written by J.D. Hull, a lawyer from San Diego.  It is called "Professionalism Revisited: What About the Client?

It makes some wonderful points about the client view of what we call in the South the "good ol' boy system" of law practice.  We are seeing increasing problems with adverse counsel who claim they are too busy to take depositions for, say, five or six months - but not to busy to accept representation in a new case.  Or adverse counsel who cannot set a case for trial in 2007 - just too busy.

When push comes to shove we have to count on judges to remind lawyers that litigation is about clients, not about lawyers.  Judges have to create and enforce deadlines, and judges have to require people to make themselves reasonably available to advance cases toward trial.  There is no reason that 90% of cases cannot be tried in one year.  There is no reason that the other 10% cannot be tried within 18 months.  What it takes to accomplish this goal is for lawyers and judges to remember that the system exists for the benefit of the clients and the public, not for the convenience of the Bench and Bar.

J.D.'s blog is called, not surprisingly, What About Clients?  I saw the link to his article in this post.  While I disagree with some of the language of this post, it is thought-provoking.

The Federal Rules of Civil Procedure are being changed to make them more readable.  This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here.  The rules are still in the rule-making process and will not go into effect before December 1, 2007.

Judge Young from Blount County, who enjoys a good reputation and whom I have always found to be quite pleasant, has popped a plaintiff with over $1,000,000 in sactions for "scorched earth" litigation tactics.

According to Knoxnews.com, Judge Young wrote that "[t]he summary judgment record shows that [plaintiff]O'Boyle did not have evidence to support material allegations and factual contentions in his complaint and that O'Boyle asserted and aggressively pursued frivolous claims which were devoid of merit."

The article says that "Young's ruling details numerous examples of O'Boyle misrepresenting facts, concluding, "'O'Boyle's failure in this case was so widespread and fundamental as to evidence an improper purpose.'"  Young noted in his ruling that the case generated 18 feet worth of files and 1,866 docket entries, and spawned related litigation in federal and state courts. He also noted that the plaintiffs - which included O'Boyle's associates in New Midland Plaza Associates - had previously been sanctioned twice and held in contempt twice, paying out more than $127,000 in fines and penalties. "

Read the entire article here.

Is there anything duller than the rules of service of process?  Perhaps not.  Unless the only thing standing between you and collection of a $53,000,000 default judgment is application of those rules.  Or unless your  defense to a $53,000,000 default judgment is failure of service of process.  Then Rule 4 starts looking interesting.  Or terrifying.

Plaintiff obtained a $53,000,000 default judgment.  Defendant corporation attempted to prevent execution on it, saying that process was not served on its registered agent (Caldwell) but rather on his secretary (Daniels), who represented that she was Caldwell's secretary, had accepted service of process for Caldwell in the past, and would give the papers to Caldwell.

The evidence showed that Defendant did not answer or otherwise respond to the complaint and did not respond to Plaintiff counsel's inquiries.  Nor did it attend the hearing on a motion for a default judgment.  Nor did it act after being sent a copy of order granting default judgment.  Nor did it attend attend the hearing on the default judgment.  Nor did it act after being sent a copy of the final judgment.Only when the judgment was filed in Tennessee to start the execution process did Defendant begin to fight.

The Court said that "It is undisputed that Defendant did not expressly authorize Caldwell’s secretaryto serve as its agent for service of process and had not expressly authorized Caldwell to authorize her to so serve.  Therefore, the resolution of the issue turns on whether Caldwell, Defendant’s registered  agent, had the authority to authorize his personal secretary to accept service of process without the  express authorization of Defendant."  [Footnote omitted].

After reviewing applicable statutes and the law, the Court said this:  "If a corporation is designated to serve as its registered agent, the registered agent must, as a matter of necessity, appoint others to serve as subagents to fulfill the purpose of the registered agent statute, which is to receive service of process on behalf of the defendant corporation. It must therefore be anticipated that a registered agent may authorize subagents to perform and fulfill its responsibilities as the registered agent. Although Caldwell was an individual and not a corporate registered agent, we find no authority to impose a greater restriction on the utilization of subagents by an individual registered agent than that imposed on a corporate registered agent. We therefore conclude, based on the nature and purpose of the relationship between a Tennessee corporation, such as Defendant, and its registered agent, such as Mr. Caldwell, that registered agents, individual or corporate, have implied authority to appoint subagents, such as Ms. Daniels."

Judgment affirmed.

The case is Rubio v.  Precision Aerodynamics, Inc., No. M2005-02348-COA-R3-CV (October 5, 2006).       Read the opinion here.

Note to plaintiff's counsel:  I have demonstrated extreme competence at dividing large numbers by three, although my duty to candor requires me to admit that I have not had the opportunity to divide a number by three that had this many digits to the left of the decimal point.  I respectfully submit, however, that I can do so and that my fee for such service will be modest.  Satisfaction (of the calculation, not the judgment) guaranteed.

My friend Keith Williams posted a comment that asked about the Tennessee ethics opinion that discusses how to handle the issue raised in the proceeding post - how should we handle liens asserted by health care providers when we have not  signed a contract obligating us (as lawyers) to recognize the lien.

There is a Tennessee Ethics Opinion on point.  Here it is:

FORMAL ETHICS OPINION 87-F-109

Inquiry is made concerning the ethical obligations of a lawyer in the handling of settlement proceeds on behalf of a personal injury client when the client objects to the payment of medical expenses.

A lawyer should hold property of others with the care required of a professional fiduciary. Disciplinary Rule 9-102 of the Code of Professional Responsibility requires the lawyer to keep funds of the client in an identifiable bank account, maintain complete records thereon, render  appropriate accounts to the client, and promptly pay and deliver to the client the funds which the  client is entitled to receive. Disciplinary Rule 7-102 of the Code prohibits the lawyer from assisting the client in fraudulent  conduct. DR 7-102(B)(1) specifically requires the attorney to counsel the client against  perpetration of a fraud upon another and, if the client insists on fraudulent conduct, to reveal the  potential fraud to the affected person. The client has no privilege of confidentiality with respect to proposed fraudulent activity. See DR 4-101.

There is no clear ascertainable ethical authority concerning the lawyers ethical duties when there  is a dispute between the client and third-party concerning the right to funds held by the lawyer on  behalf of the client. The Idaho Supreme Court in the case of Bonanza Motors Inc. v. Webb, 104  Idaho 234, 657 P2d 1102 (1983) in a legal issue held that a lawyer must not deliver funds to a  client when the lawyer has notice that a third-party has a superior right to the funds. The lawyer  was found liable in an action by the creditor when the lawyer paid the entire judgment to the  client after having received a copy of an instrument by which the client had assigned part of his  judgment award to a third-party creditor, and provided that the lawyer should pay the creditor  directly when the funds were received.

This ethics opinion holds that a lawyer who has notice that a creditor of the client has a lien or  assignment to the funds held on behalf of the client is ethically obligated to segregate and retain  the disputed funds until the dispute is resolved. Payment of the disputed amount into court for a  resolution of the matter is permissible after the parties have had a reasonable opportunity to  resolve the dispute.

This 16th day of September , 1987.

The point of my earlier post was to point out another way to handle the issue,  but I should have made it clear that the issue was already answered in Tennessee. 

Sorry about that.

You resolve a case by settlement or judgment and the check is sent to your office.  The check has been deposited in your trust account, has cleared the bank, and the proceeds are now ready for distribution.  There are several health care providers who gave care to your client concerning the injuries she received in the wreck.  Can you (as a lawyer) be held liable if you don't pay their bills out of the settlement proceeds?

The Wisconsin Supreme Court recently answered that question, with a slight twist on the facts.  In a 20-page opinion brought by a chiropractor against an attorney, the WSC held that "We determine that Dr. Yorgan may not hold Attorney Durkin liable for payment because Durkin did not sign the  agreement or otherwise agree to be liable. Additionally, we  determine that imposing liability on Durkin is not dictated by  public policy. Finally, we determine that Yorgan is not  entitled to an equitable lien enforceable against Attorney  Durkin."  (Paragraph 2).

Note the additional facts I left out of the hypothetical in the first paragraph:  the attorney did not sign the agreement between the chiropractor and the patient providing that the patient was to direct her attorney to pay the chiropractor out of the settlement proceeds and purporting to give a lien against the recovery.  However, the attorney received a copy of the document at the time he got medical records from the chiropractor.  Moreover, the attorney had a conversation with the chiropractor after the claim was settled about reducing the bill.

One justice concurred, saying that the attorney should have the obligation to pay the provider when the attorney has actual notice of the agreement.   (Paragraphs 43-52).

Two justices filed a nineteen-page dissent.  The author concluded as follows: "Because the need for medical care arose out of the  same accident as did the settlement proceeds and there is no  evidence in the record that Hernandez provided Durkin any  instructions about the disbursement of the settlement proceeds  to Yorgan that were contrary to the assignment she executed in  favor of Yorgan, I conclude that Hernandez validly assigned to  Yorgan settlement proceeds from her personal injury claim, up to  the amount of the charges for the chiropractic treatments Yorgan  provided to Hernandez. I also conclude that Hernandez granted  Yorgan a lien to secure payment of the debt for which the  assignment was made, and that the lien can be enforced against  the settlement proceeds because Yorgan's lien existed before  Durkin had any right to retain a portion of the proceeds and  Durkin had knowledge of both the assignment and Yorgan's lien.  Accordingly, I would permit Yorgan to recover from Durkin to the  extent of the settlement proceeds Durkin received or the amount  due to Yorgan for the chiropractic care he provided to Hernandez, whichever is smaller."  (Paragraph 90).

Read the opinion  here.  All three opinions are worth a read - they are thoughtful and do a great job of collecting law from across the country in support of their respective views.

One last point.  I love the way the Wisconsin Supreme Court and several other courts in the country put paragraph numbers in their opinions.  I guess the purpose of this is to make it easier to cite (and find) certain language later, and it works.

Pennsylvania lawyer Michael Radbill, a Philadelphia attorney who served time in prison for defrauding insurance companies by filing claims on behalf of personal injury plaintiffs who faked injuries and participated in staging slip-and-falls, has been disbarred. He served a one year prison term - which seems light but seems truly unjust when compared to that ordered for Anna Alaya (the finger-in-the-chili-at-Wendy's woman).

He also had some tax problems - apparently the IRS was disappointed that he was deducting salaries paid to his wife and his girlfriend when neither of them worked in the office.

Here is the article from Law.com.

As for Mr. Radbill, good riddance.

The male plaintiff said that he slipped, fell, and sustained various injuries on the sidewalk outside of his apartment early one morning. He and his wife brought suit.

Defendant found a medical record (from a provider not listed in answers to interrogatories by the plaintiffs) that indicated that plaintiff was treated for a dog bite on the morning of the alleged incident. He made no reference to his alleged fall. A scar he said was related to the fall was in a location similar to the site of the dog bite.

There were other problems with plaintiff's medical history as well - the type of stuff that a defense lawyer drools over. This defense lawyer, however, stopped drooling long enough to file a motion to dismiss the case for fraud. The case was dismissed, and the Florida District Court of Appeal, First District, affirmed.

The test for dismissal: ""'A trial judge has the inherent authority to dismiss actions based on fraud and collusion.'" The requisite fraud on the court occurs when "'it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.'" (Citations omitted.)

The case is Hutchinson v. Plantation Bay Apartments, LLC, CASE NO. 1D05-1679. It was decided on May 15, 2006. Read it here.

How does a plaintiff's lawyer protect himself or herself from this type of situation? Do your own investigation into the plaintiff's medical history before you file suit. Get the medical records from the providers who are revealed to you by your client, read the records to look for other providers, and get those records as well. Get pharmacy records and look for additional providers. Do this before you answer interrogatories or submit your client for a deposition - and educate your client on what you find. Chances are your client has simply forgotten the prior health care provider you found during your search, but you can stop your client from being called a liar by doing this work for them.

And if you discover you are representing a liar? Drop 'em. Fast. And hard. Life is too short to represent people who cannot tell the truth. Plaintiff's cases are too hard to win when people try to tell the truth. A couple of lies, even on small points, will cost your client (and you) the case.

Don't count on it. Read this new opinion from the Tennessee Supreme Court which affirmed a grant of summary judgment in favor of the defendant when the plaintiff submitted an affidavit in opposition to the motion after the date required by a previous order of the trial judge.

The core holding: "We conclude that the trial court did not abuse its discretion in denying the plaintiffs' motion for an enlargement of time under Rule 6.02 after finding that there was no excusable neglect. The trial court held an extensive hearing and considered the factors identified above. The trial court considered the reasons for the plaintiffs' delay, the length of the delay, the prejudice caused to the defendants, and the potential impact on the proceedings. Although the inquiry of prejudice and the effect of the delay generally should focus on the plaintiffs' failure to identify expert witnesses by the deadline set by the trial court, this failure cannot be isolated from the plaintiffs' failure to comply with other deadlines and magnifies both the prejudice to the defense and the effect of the delay."

The case also held that the expert affidavit submitted by the plaintiff to oppose summary judgment was deficient: "Here, the plaintiffs relied on the affidavit of Dr. Robert Gordon. Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was "familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities . . . ." The affidavit contains no information regarding the basis for Dr. Gordon's familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon's affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient."

The case is Williams v. Baptist Memorial Hospital, No. W2003-02872-SC-R11-CV (April 19, 2006). Read it here.

(Note: this is a corrected version of the opinion released last month. This version was released on Tuesday the 23rd of May.)

I was in court last Monday morning and a lawyer sitting next to me asked for some help on a comparative fault issue. I told him the answer and that the case law in support of the answer could be found in Chapter 5 of Tennessee Law of Comparative Fault, the book I co-authored with Donald Capparella and John Wood. He told me that he had a copy but the relevant case law was not there. I shortly figured out that he had the first edition of the book.

The second edition of Tennessee Law of Comparative Fault is published by West Publishing and has been updated via pocket part three times. Here is the Table of Contents. You can purchase the book by clicking here.

If you practice tort law in Tennessee I think you will find that this book will save you several hours of work every time you face a comparative fault issue.

I do not make this suggestion to you to earn more royalities - book royalities in the legal publishing world are so small as to make them almost meaningless. Instead, I offer the suggestion to save you some time and money in your quest to serve your clients.

The Court of Appeals of Maryland has held that an Ohio lawyer who contracted over the telephone and by mail to perform legal services in Ohio for a Maryland resident could not be sued for professional negligence in Maryland.

Here is the summary of opinion as prepared by the Court:

"The Court considered here whether communicating alleg edly negligent legal advice to a Maryland resident via two telephone ca lls and two letters constitute sufficient minimum contacts to support personal jurisdiction by a Maryland court over an Ohio attorney under the Due Process C lause of the Fourteenth Amendment to the U.S. Constitution. Petitioner filed suit against Respondent, an attorney admitted to practice in Ohio, in the Circuit Court for Baltimore City alleging professional malpractice stemming from legal representation undertaken, and advice given, by Respondent to Petitioner by written and telephonic correspondence in 1985, 1986, and 1994 regarding the expungement of Petitioner's Ohio juvenile records and the failure to expunge those records. Relying upon the Maryland longarm statute, §§ 6-103(b)(1) and (3) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl. Vol.), Petitioner argued that Respondent established minimum contacts w ith Maryland to justify asserting p ersonal jurisd iction over him because harm caused by the alleged malpractice was experienced by Petitioner in Maryland.

Focusing on Resp ondent's contacts with Maryland, rather than relying on the site of the "effect of the injury" analysis, the Court concluded that Respondent did not establish purposefully minimum contacts in Maryland. Respondent contacted Petitioner twice by replying to letters sent by Petitioner, the content of which strictly concerned Ohio law and events occurring in Ohio. The attorney-client relationship had been created in Ohio in 1981. Respondent did not solicit business o r advertise his professional services in Maryland. He maintained no office or agents in M aryland and made no trips to Maryland related to this action. He derived no additional income from the alleged provision of legal advice by telephone and letter in 1985, 1986, and 1994 . The Court held that to exercise personal jurisdiction over Respondent, under such circumstances, would violate the Due Process Clause."

The case is Bond v. Messerman, No. 48, (Maryland Ct. App. April 7, 2006). Read the opinion here.

The Kentucky Supreme Court has recently modified the law concerning the application of the "error of judgment" rule in legal malpractice cases.

In Equitania Insurance Conmpany v. Slone & Garrett, P.S.C., 2003-SC-1003-DG (2/23/06). The Court described the case as follows: "This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that she negligently advised them during the midst of the shareholder dispute. They claim that Garrett negligently failed to properly advise them as to how to retain control of the corporation; that the methods she advised violated the insurance code ; violated a fiduciary duty to shareholders; was unethical, and was substantially more expensive."

The jury was given this instruction:

"It was the duty of Defendant, Laurel Garrett, in undertaking the legal representation of the plaintiffs, to possess to an ordinary extent the technical knowledge commonly possessed in her profession, to exercise that degree of care and skill which an ordinary, reasonably competent lawyer would exercise under the same or similar circumstances . Provided, however, a lawyer cannot be held responsible for errors in judgment or for advising a course of action even if that course of action ultimately proves to be unsuccessful."

The Court reversed, saying "[t]he tendered instructions did not advise the jury that it had to be an error of law which precluded liability, nor did it inform the jury that there are circumstances in which misjudgment of the law could be a basis for liability . There can be many circumstances in which lawyers can commit errors of judgment which deviate from the standard of care. Whether an error of judgment is legal malpractice is a question of fact for the jury. ... Kentucky should not allow lawyers to avoid liability for committing errors in judgment which the average reasonably prudent lawyer would not commit. Any avoidance of liability should only be allowed for errors of judgment made in absolute good faith."

The "error in judgment" rule is a hole that you can drive a Peterbilt truck through in many cases. It needs to be tightened up for legal and medical malpractice cases. That being said, I think the Kentucky case goes a little too far. It does not recognize that if a professional has gathered the facts in accordance with the standard of care and the standard of care permits one of multiple courses of action to be taken it is not negligence to choose one course of action over the other. A doctor's decision to choose one surgical technique over the other should not be negligence if informed consent has been obtained. A lawyer's informed decision not to call a particular witness at trial whose testimony would be cumulative should not be negligence.

You can find the decision by going to this website and searching for the opinion using key words; there is no direct link.

The Tennessee Court of Appeals has ruled that deposition videotaping expenses (and the cost of synchronizing the deposition with the written transcript) are not recoverable as discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure.

The case is Parker v. Brennan, No. M2005-01376-COA-R3-CV (April 19, 2006).

The Rule should probably be amended to allow the successful party to recover the lesser of the court reporter charge or the videographer charge. Why? Because you do not have to use a court reporter to capture testimony at a deposition; the video counts as the official transcript. Therefore, a party that elects not to have a court reporter present and to rely on the video transcript should be able to recover the cost of the videographer.

Missing deadlines is something that can happen to anyone. This legal malpractice case, against the Baker Donelson firm, demonstrates what can happen when an important deadline (filing notice of appeal) is missed.

Surprise! You cannot collect a contingent fee if your client rejects a settlement offer and later collects nothing.

In this Louisana Supreme Court decision in the case of Cullpepper & Carroll v. Cole (No. 05-C-1136) attorneys sought a one-third fee of a rejected settlement proposal in an estate case.

Check this out: "Having found a contingent fee contract exists, we now turn to the question of whether Mr. Culpepper is entitled to recover any attorney's fees under this contract. Pursuant to the parties' agreement, Mr. Culpepper is entitled to one-third "of whatever additional property or money" he obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole recovered no additional property or money as a result of the litigation against his mother's estate. Because Mr. Cole obtained no recovery, it follows that Mr. Culpepper is not entitled to any contingent fee.

Nonetheless, Mr. Culpepper urges us to find that his contingency should attach to the settlement offer he obtained on behalf of his client, even though his client refused to accept that offer. According to Mr. Culpepper, he did the work for which Mr. Cole retained him, and he is therefore entitled to one-third of the amount offered in settlement, notwithstanding Mr. Cole's rejection of the settlement offer."

The holding: "To allow Mr. Culpepper to recover a contingent fee under these circumstances would penalize Mr. Cole for exercising his right to reject the settlement. We find no statutory or jurisprudential support for such a proposition. Indeed, this court has rejected any interpretation of the Rules of Professional Conduct which would place restrictions on the client's fundamental right to control the case."

I remember sitting in a bar in New York 18 years ago with some lawyers from West Virginia. Their fee contract provided that they got one-third of the best offer the lawyer recommended to them, even if the ultimate judgment collected by the client was less than the best offer. I never understood how they got away with that provision in a contract.

This contract was worse.

How would you like to receive this Order in the mail? Download file

Worse yet, how would you like to see it on the Internet?

The Supreme Court of North Dakota publishes this list of appellate practice types.

Of course, the citations are to North Dakota law but most of the principles are just as applicable in Tennessee.

Thanks to Jim Calloway.

The Tennessee appellate courts have a proposed rule about electronic filing that has been released for public comment. Read about it here.

What we think is happening is happening: there is an increase in the number of cases filed against lawyers. Read this article from the Chicago Tribune to learn more.

One of the significant problems with running a plaintiff's practice is managing cash flow. Any fees earned are usually contingent fees, and cases are not always resolved in such a way and a such a time to meet professional and personal financial obligations.

There are at least four different ways to address this issue. First, you can visit your friendly banker and arrange a line of credit that you dip into went you need to meet payroll, significant expert expenses, etc. This is probably the most common way of handling the situation.

Second, you can do business with a company that provides funding for plaintiff's lawyers. Here is an article describing what these companies do and what they charge. There are several different models out there and the interest rates for each of them are much higher than you would expect to pay a bank.

Third, you can mix an hourly practice with a contingent fee practice, using an hourly rate practice to help meet your "nut" and relying on your contingent fee practice to make additional income.

Fourth, you can have a pure contingent fee practice, and build up an appropriate pipeline of cases that will allow you to meet your obligations in due course.

And, of course, there are variations on each of the above.

There are advantages and disadvantages to each option, but our firm has chosen the model closest to option four. We do some hourly rate work - currently about 15 - 20% of our revenues - but all of the rest of our practice is pure contingent-fee based. We manage cash flow by accepting a relatively small number of cases per lawyer, carefully screening the case we do accept, and then pushing the cases forward to get them resolved as quickly as reasonably possible. We have not ever used a litigation finance company and do not have a line of credit, although I would not hesitate to use the latter if it became necessary.

Another variation of the above models of meeting cash flow needs is joint venturing a case with another firm. Most of our work comes from other lawyers. We are asked to help out when a case is in an area of the law unfamilar to the referring lawyer, when the case is more complicated than the referring lawyer has handled in the past, or when the case requires more time or money than the referring lawyer is willing or able to invest or risk. We typically pay all of the expenses of the case; such an arrangement allows the referring lawyer to share in the fee earned in the case while avoiding the financial risk of it (Tennessee's ethics rules permit a division of fees so long as all attorneys involved remain reponsible for the case and the division is disclosed to the client).

The bottom line is this: it is important that you manage your practice in such a way to meet your professional and personal financial needs. That will require you to make some difficult choices, not only about your case selection but also about your lifestyle. For example, you must learn to keep your personal financial spending in check. When you have a good year don't buy a Rolex or lease a Mercedes; instead, pay down your mortgage or sock away money for your kid's education. Build up a financial cushion so that you can afford to accept contingent fee cases and work on them with the same zeal and consistency that you work an hourly rate case for your best client.

I concede that I am a fiscally conservative plaintiff's lawyer. I take risks for a living, but they tend to be calculated risks. One guiding principle for me: I only take cases that I can afford to lose. Once you start taking cases you can't afford to lose, there is a substantial incentive to settle them too cheap.

We all know that that a person who suffers from an "unsound mind" gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that "[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability."

But what if the injured party, prior to becoming of "unsound mind," granted a durable power of attorney that gave an attorney-in-fact the duty "act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to ... claims and litigation...?" Does the presence of that durable power of attorney trump the "unsound mind" statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?

I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant's nursing home and became of "unsound mind." According to the opinion, "[t]he plaintiff frequently visited the deceased during the latter's stay at the defendant's facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant's care and treatment of his father, which he believed were harmful to him." More than a year after the father was transferred from the defendant's nursing home but within one year of the father's death {when the disability was "removed," according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.

In Sullivan v. Chattanooga Medical Investors, LLP, Judge Susano, writing for the Court, first noted the words of Section 28-1-106: "If the person entitled to commence an action is, at the time the cause of action accrued, . . . of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, ...." {Emphasis added by the Court.]

He went on to write as follows: "The statute does not recite, expressly or by implication, that the tolling of the statute of limitations only occurs in those situations where there is no one authorized to act for the disabled individual. On the contrary, § 28 1-106 specifically grants the tolling protection not only to the disabled individual but also to his or her 'representatives and privies.' Though the plaintiff is the individual who brought the action, he brought it in a representative capacity for the alleged wrong done to the deceased. Thus, as we believe was intended by the legislature, the plaintiff, as Administrator of the deceased's estate, is a 'representative[]' of the deceased and not 'the person entitled to commence an action.' We hold that the plain and ordinary meaning of the language of § 28-1-106 simply does not permit this court to conclude that "representatives and privies" does not cover the plaintiff in this case. We think it clearly does."

The Court rejected the other arguments raised by the Defendant as well. The dismissal of the case was reversed and it was sent back to the Circuit Court for Hickman County for trial.

Until this issue is ultimately determined by the Tennessee Supreme Court this is the only opinion lawyers really have to work with on this issue. It is a well-written, well-reasoned opinion and I would like to think that it is one which will be adopted by the Tennessee Supreme Court. Nevertheless, given the fact that the expiration of a statute of limitations is the civil equivalent of the death penalty, lawyers would be advised to work under the assumption that a specific durable power of attorney such as the one in this case places a burden on the attorney-in-fact to file suit within one year of discovery of a personal injury claim arising in favor of the grantor of the power of attorney.

In the event that the Tennessee Supreme Court elects not to hear this case I urge the Court to direct that this opinion be published. Lawyers need to be able to rely on a published opinion to answer the important questions discussed in this opinion.

"An appeal is frivolous when it "has no