Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

The American Association for Justice is hosting a teleseminar on March 16, 2010 on the ethics of secrets settlements.   Get more information here.

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The Springfield Injury Law Blog has given us a great post titled "8 Ways to Help Your Personal Injury Lawyer Help Your Case."   Obviously, the post informs personal injury clients how they can help their lawyer obtain a better result in their case.

It is so good I am going to reprint it here:

    1.  Give your lawyer the whole story

The conversations you have with your personal injury lawyer are confidential and protected by attorney-client privilege so you can tell the truth without fear of others finding out.  Your lawyer must keep what you say in strict confidence.  Don't omit details about the events in an accident just because they may be embarrassing or you think make you look like you did something wrong.  A good injury attorney will take all the facts of your case and know how to present less flattering elements in the best possible light and keep the impact to a minimum.  If  your lawyer first hears about an important detail that you omitted from the lawyer on the other side, it can have devastating effects on your personal injury case.  Caught unprepared, he/she is at a disadvantage in keeping potentially unfavorable facts from hurting your case and it can make it impossible to disprove negative accusations if there is not time to investigate. Be sure to tell your lawyer everything and answer all questions truthfully.

Since you hired a personal injury lawyer, you must have an injury.  Therefore, getting well should be your first priority. You can't do that if you aren't going to the doctor or aren't following your doctor's recommendations for treatment or therapy.  If you miss your doctor appointments, you are telling the other side that you must not be hurt and therefore, don't need any compensation for your injuries or medical bills.

3.  Don't talk about your case with anyone but your lawyer

Don't tell your friends, family or coworkers about your personal injury lawsuit.  Insurance companies will try and manipulate things you say and use them against you to reduce the compensation paid.  This includes not mentioning your case on your blog, Facebook, MySpace or Twitter. See #4 below.

4.  Put a hold on Facebook and Twitter

What you say in a post, tweet or status update can reveal a lot of about your activities and state of mind.  If you are claiming serious injuries, but tweet about an upcoming deep sea fishing trip or post photos of you learning to snowboard, you can be sure an insurance company will find them and use them against you.  Insurance companies are not above sending private investigators to physically follow those claiming injuries and following someone in cyberspace is just as easy and effective.  Don't rely on privacy settings of social media applications to protect you.  It is better to avoid making any updates until after your case has closed.  Learn more about social networking and personal injury cases.

5.  Supply all requested documents on time

You will need to fill out a variety of forms and provide insurance and medical documents periodically to your personal injury lawyer.  Return any forms fully completed and provide documents in a timely manner to keep your case progressing and help your lawyer meet any filing deadlines. The legal process will naturally take long enough, see #6 below.  Don't add to that by taking extra time to provide requested information after your accident.  

6.  Be patient

After a car accident, collecting necessary information such as police reports, information from witnesses, and paperwork from doctors takes time.  Additionally, when injuries are involved there must be a confirmation and stabilization of medical conditions so time must pass while you receive medical tests and start to heal.  Naturally, the insurance company will drag its feet before making any payments.  Do not plan on getting a check in a week.  If a personal injury lawyer tries to quickly settle your case you could lose out on all the compensation you may be entitled to receive.

7.  Ask questions

If you don't understand something about your personal injury case, ask your lawyer to explain it. You should be aware of status of your case and what to expect along the way. This is YOUR CASE. The more you understand, the better you can participate and help your lawyer and your case.

8.  Listen to your lawyer

You chose an experienced personal injury attorney because he/she can use the law to help you maximize the compensation you can receive for your injuries, lost wages and other pain and suffering after your car accident.  What a lawyer may ask you to do (or not do) or the information you are requested to provide is based on their experience and knowledge of the law.  For that reason, you should listen to your lawyer and cooperate with requests in order for you to secure the best possible outcome after your accident. 

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The Tennessee Department of Commerce and Insurance has released the forms for reporting on medical malpractice claims for the 2009 calendar year.

The reports are due March 1, 2010.

Here are the instructions for filling out forms as a representative of the claimant.  Here is  the link to the reporting form.

Failure to submit all of the required information on or before the March 1, 2010 deadline will subject a reporting attorney to a penalty of $100 per day.

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If you do not regularly read Max Kennerly's Litigation and Trial blog you are not taking advantage of a wonderful opportunity to learn.  I have never met Max, but his blog is well-written, thoughtful, and informative.

Need to be convinced?  Read his post titled "Always Draft Angry Briefs.  Never File Them."

An excerpt:

We've all been there. We've all read briefs and heard oral arguments that were (at least to us) irrelevant, unfounded, or directly contradicted by controlling precedent or the plain meaning of the statute. ...

But a brief is no place to question the intellect or motives of opposing counsel. Get mad, then get over it.

Excellent advice from which all can benefit.  Thanks, again, Max.

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Jay O'Keeffe has written a nice article about appellate brief writing on DeNovo:  A Virginia Appellate Law Blog. 

The article is titled " 10 Ways to Ruin a Perfectly Good Brief."   Here is an excerpt:

1. Take shortcuts. Here's how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don't outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don't brainstorm, then you may miss a key point. If you don't cite-check, you will be embarrassed sooner or later. And if you don't research or revise, then may God have mercy on your soul. 

I have an addition to his list. 

11.  Ignore the Rules of Court:  Courts have rules for appellate briefs.  The rules not only include such matters as font size and page limitations but also requirements for citations to the record and citations to relevant authority.  Ignore these rules at your peril.  Courts are known to have ignored issues raised in a brief and even fined lawyers who fail to follow rules of procedure.

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Here is the best summary I have seen that describes  the recent changes to the FRCP.  The new rules  went into effect on December 1, 2009.  The summary was written by the folks at Mayer Brown.

Thanks to Dan Hull at What About Clients? for alerting me to it. 

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A law professor at Stanford, Lora Freeman Engstrom, has written an article published in Georgetown Journal of Legal Ethics  called "Run-of-the-Mill Justice."   Her  bio reveals that her research  interest is high-volume personal injury law practices that heavily advertise and mass-produce the resolution of claims and  is supported by a grant from the American Bar Association’s Litigation Research Fund.

Here is an abstract of the article:

This Article examines a particular form of heretofore unexamined personal injury law practice that has proliferated across the United States. These law firms, which I call settlement mills, are characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit. Drawing on voluminous documents extracted from federal court and state bar disciplinary files, as well as fifty interviews with current and past law firm employees, the Article demonstrates that settlement mills represent a relatively new, largely distinct, and surprisingly prevalent form of law firm organization. After setting forth the characteristics that distinguish settlement mills from conventional personal injury practices, the Article considers the forces that have contributed to their rise, analyzes how they resolve claims in practice and to what effect, and asks why insurers (not facing a realistic threat of trial) bargain with settlement mills at all. The analysis reveals that settlement mills are not only organized differently than their conventional counterparts; they actually settle claims differently, in a manner that challenges prevailing theories of settlement as well as our basic notions of compensation through tort.

The article is available for purchase here.  I have ordered a copy and will share further information at a later date.

Thanks to Torts Prof Blog for informing me of the existence of this article.

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The good folks at the Winning Trial Advocacy Tips blog have assembled some more great information of  interest to trial lawyers.  This post is titled "Free Software for Trial Lawyers' and features a dozen free or almost free programs of interest to lawyers who try personal injury and wrongful death cases.

An excerpt from the post:

IMAGE EDITING PROGRAMS

GIMP: www.gimp.org
Need to crop photos, modify images, or enhance images for trial? This is a cheap (free) alternative to Adobe Photoshop. It includes a wide variety of image editing tools. It’s not easy to get started, but it’s a powerful resource.

Seashore: www.seashore.sourceforge.net
A simple image editing program that’s easier to use than GIMP.

Inkscape: www.inkscape.org
This is an illustration program (similar to Adobe Illustrator) that lets you create vector drawings and illustrations. It doesn’t have all the bells and whistles of the professional program, but it lets you create amazing artwork.

Hugin: www.hugin.sourceforge.net
If you’re trying to take photos of a large, panoramic area, you usually can’t fit the entire scene into a single photo (at least not without a thousand dollar camera lens). Hugin solves that problem by letting you stitch 2+ photos together into a panoramic view.

 

 

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 Gary Gwilliam from California has written a very interesting article called "Old Warriers" for Plaintiff Magazine.  Read the article here.

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The Star-Tribune from Minneapolis - St. Paul reports that a state court judge in Minnesota imposed a $4 million sanction  against Burlington Northern Santa Fe Corp. for engaging in a "staggering" pattern of misconduct aimed at covering up its role in the deaths of four young people whose car collided with a train largely because a crossing gate wasn't working properly.

The paper reports that the railroad began destroying evidence within minutes of the incident.

The trial judge, Ellen Maas,  found that the railroad company lost or fabricated evidence, interfered with the families' investigation of the accident and "knowingly advanced lies, misleading facts and/or misrepresentations" in order to conceal the truth and "has attempted to explain away each instance of misconduct as either an innocent mistake or a mere coincidence. ... "

Among the misconduct:

• Losing or destroying a computer disk that recorded the train's speed and other factors on the night of the collision. The disk would have revealed whether the victims were given adequate warning time at the crossing. A laptop containing the data was also destroyed.

• The railroad's failure to disclose its awareness of previous signal problems at the crossing.

• The destruction of records relating to work done on eight feet of track at the crossing.

Read the article here.

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A recent post described proposed changes to the Local Rules of Court for the United States District Court for the Middle District of Tennessee.  For the most part, the rule changes addressed changes in the time periods for action required under the rules.

This post from Drug and Device Law that explains the proposed changes to the Federal Rules of Civil Procedure.  Here is an excerpt:

The new theme is "days are days." All days are to be counted. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. Other changes affect how to tell when the last day of a period ends, how to compute hourly time periods, how to calculate a time period when the clerk’s office is inaccessible, and how to compute backward-counted periods that end on a weekend or holiday. The rules also clarify the long held understanding that when e-filing is involved, a due date runs until midnight in the time zone of that court’s clerk’s office.

There are now new time periods in Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72 and 81. Rules that previously called for 1, 3 or 5-day periods become 7-day periods. Deadlines that were previously 10 or 11 days become 14 days, and periods that were once 20 days become 21 days. For example, a response to a motion for summary judgment is now due 21 days later, and reply, where permitted, 14 days after that. Important exceptions are found in Rules 50, 52 and 59. Periods of 10 days in those rules become 28 days under the new rules.

Unremarked upon in the official commentary, and in all the blogging that this author has seen, is the deletion of the rule adding time for service by mail. The changes delete Rule 6(d) which provided for three extra days for response if service was accomplished by various methods listed in Rule 5. The rule, which used to provide extra time if service was by mail, rather than by hand delivery, has become somewhat anachronistic given the prevalence of e-filing and other methods of service. The change also removes an incentive to serve by hand delivery, which in some jurisdictions removed the three extra days for response that would accompany mail service.

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The Wisconsin Supreme Court has fined a lawyer $100 for providing an improper citation to a court case.  The fine was imposed in a footnote in 2008 unpublished opinion, Espitia v. Fouche.  Here is the footnote:

Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is "Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)." Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer. Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433. At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate. A $100 penalty is imposed against Espitia's counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).

We have a bigger problem in Tennessee.  I was having lunch with an appellate court judge recently and we were discussing how West (or whatever its name is now)  is taking briefs written by  lawyers and selling them to other lawyers.  The judge remarked that courts were seeing one of the effects of this, with lawyers cutting and pasting from the briefs of other lawyers who had written on the same area of law.  How did the judges know the material had been written by another lawyer?  The "new" brief still contained the names of the parties from the "old" brief.

Thanks to Legal Blog Watch for directing me to this decision.

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Rule 5 of the Tennessee Rules of Civil Procedure addresses the requirements for the filing and service of papers in civil litigation.  Generally speaking, "every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties."   Service may be by mail hand-delivery, mail or fax.

Earlier this year I proposed a  rule change  to expressly permit service of papers electronically to counsel of record. Here is the text of the proposed rule:

(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney's email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender's name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.

(c) A document transmitted electronically shall be treated as a document that was mailed for purposes of computation of time under Rule 6.

(d) For good cause shown. an attorney may obtain a court order prohibiting service of documents on that attorney by electronic mail and requiring that all documents be served under subsection (1) [the traditional method of service].

My reasons for seeking the rule change are set included in this proposed comment to the proposed rule:

The Commission is aware that many attorneys serve documents on one another electronically but, because the current rule does not provide electronic service is sufficient service, also send a paper copy of the document. This rule change is designed to allow attorneys to accomplish service of pleadings and other papers electronically without the need to send a physical copy.

The requirement that the sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule is intended to reduce the possibility that the recipient might overlook the service of a document. Words in the subject line to the effect of "TRCP Rule 5 Service of Document in Smith v. Jones" are sufficient.

Adobe PDF was chosen as the format because it is required for federal court filings and virtually all attorneys have ready access to it. Of course, the parties may stipulate to the use of a different format.

The mailing or hand delivery of a certificate was included out of concern, well-founded or not, that an email transmitting a document could be lost in cyberspace. The certificate requirement puts the receiving attorney on notice that a document has been sent and, if the document was not received, will allow that attorney to initiate a process for promptly obtaining a copy of it.

The rule provides a mechanism for a court to order, for good cause shown, that electronic service of pleadings and papers not be permitted in a particular case.

Send your comments on the proposed rule to Mike Catalano, Clerk, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407.  The deadline for comments is November 30, 2009.

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 It was almost two years ago that I wrote about  Wright v. Wright,  No. M2007-00378-COA-R3-CV  (Tenn. Ct. App. Dec. 12, 2007).  (Post 1)  (Post 2)   Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff's lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor.  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.

The case was remanded so that a reasonable fee could be determined.  After discovery and a hearing, the trial judge awarded the plaintiff's lawyer a fee of $131,000.  (The amount of the settlement of wrongful death case was $425,000.)  The child's guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV  (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court's award of the $131,000 fee.  The opinion details the extensive work done on the case, and reveals how plaintiff's counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000.  Also important to the outcome:  the child was suing her grandmother, and thus a substantial  judgment (or any judgment) was certainly in doubt.

This is what the Court said about the effort of Plaintiff's counsel:

In sum, we agree with the trial court’s finding that Attorney Dunaway spent a total of 128.2 hours working on Kaitlyn’s behalf. Attorney Dunaway testified that this work included filing the complaint, gathering, reviewing, and preparing summaries of Kaitlyn’s extensive medical records, drafting and serving initial discovery requests,

responding to the defendants’ discovery, examining the parties’ insurance coverage for sources of possible recovery, researching property records to determine the extent and location of the estate’s assets, having his associate attend three depositions on his behalf, reviewing and summarizing those depositions, negotiating with the insurer regarding its subrogation interest, and attending mediation. He introduced as exhibits various summaries he had prepared of the medical records, medical expenses, and property records, in anticipation of trial. The trial judge found that Attorney Dunaway acted reasonably and performed all legal services in a proper manner.

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Fred Fresard, author of the Litigation Cost Control blog, has written three great posts on the steps to effective phone and video-conference depositions.  As Fred explains, "the suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony."

Here is a link to his posts:  Step 1, Step 2 and Step 3.

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        Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

       Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants. 

       Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action. 

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If you don't understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.  

This seminar, exclusively for plaintiff's lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice.  Also discussed will be AAJ's response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.

The teleseminar will be held on Thursday the 17th of September at 1:00 CDT.  It will last 90 minutes. Go to the AAJ website to register.

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         One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

          I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

       Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.

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On August 11, 2009 I directed you to an article written by  Steven Robbins on writing better emails.    Here is a great article written by Jim Calloway on managing your in-box.  Jim writes the "Law Practice Tips Blog,"  a great place to learn about law practice management and technology.

An excerpt:

if an e-mail is being retained because it is really a task, save it as a task! Drag it from the inbox to Tasks on the lower left hand corner of display in Outlook 2007. A new Task appears with the subject line and contents of the e-mail. Then do three quick things: edit the subject line to whatever it is you need to do, give it today's date and determine what the due date should be. It there is a hard due date, add it here. It you need to start on it several days in advance, then give that date as the due date and chance the task(subject) line to 'do X by Y date.'

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I love to read Dan Hull's blog, What About Clients?   He gets it.  Or, more precisely, he gets most of it.  He doesn't get contingent fees, which puzzles me. But the rest of it is firmly within his grasp.

Dan's post,  Litigation:  Lawyering, Real Life and a Little Zen is one is wish I would have written.  Here is an excerpt from the post, which I hope will wet your appetite to read the rest of it.

The ability "to think like a lawyer"--what you get in law school and then polish in practice--is at most about 8 percent of what you need to be an effective lawyer. That's right, about 8 percent.*

Legal reasoning. Lots of people finally acquire it. Some are famously better and faster at it than others. A revered M&A lawyer wrote years ago that, at a minimum, it requires the ability to think about something that is "inextricably attached" to something else--but without thinking about that something else to which it's attached.

Legal reasoning is critical--but it's never enough by itself to become an outstanding lawyer. The rest is frame of mind: energy, ambition, organization, logistics-sense, re-thinking everything all the time, a take-charge orientation, genuine people skills, and an urgent passion to solve tough problems.

 

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Those of us who typically work for contingent fees have an extra incentive to work smarter.  Like many of you, I have done a lot of reading in the field of time managment and project management, looking for ways to improve my productivity through better organization.

I found this article on Harvard Business School's "Working Knowledge" site that does a nice job summarizing some of the ideas I have read over the years that help improve productivity.

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LIke you, I get a lot of emails every day.  All too often, I permit emails to control my work schedule - a big mistake.

Here is a nice article that gives suggestions for managing the mass of emails that enter our lives every day.   The writer, Stever Robbins, accurately points out the reason for the problem:

Before e-mail, senders shouldered the burden of mail. Writing, stamping, and mailing a letter was a lot of work. Plus, each new addressee meant more postage, so we thought hard about whom to send things to. (Is it worth spending thirty-two cents for Loren to read this letter? Nah….)

E-mail bludgeoned that system in no time. With free sending to an infinite number of people now a reality, every little thought and impulse becomes instant communication. Our most pathetic meanderings become deep thoughts that we happily blast to six dozen colleagues who surely can't wait. On the receiving end, we collect these gems of wisdom from the dozens around us. The result: Inbox overload.

The article also contains lots of helpful information to help you write better emails.

Enjoy.

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On July 20 I warned you about new federal regulations known as the "Red Flag" rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft.  The rules were scheduled to go into effect on August 1.

The FTC, the agency charged with the responsibility to enforce the rules, has delayed enforcement of the rules until November 1, 2009.  The following is from the FTC press release:

Commission staff will create a special link for small and low-risk entities on the Red Flags Rule Web site with materials that provide guidance and direction regarding the Rule. The Commission has already posted FAQs that address how the FTC intends to enforce the Rule and other topics – www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm. The enforcement FAQ states that Commission staff would be unlikely to recommend bringing a law enforcement action if entities know their customers or clients individually, or if they perform services in or around their customers’ homes, or if they operate in sectors where identity theft is rare and they have not themselves been the target of identity theft.

The three-month extension, coupled with this new guidance, should enable businesses to gain a better understanding of the Rule and any obligations that they may have under it. These steps are consistent with the House Appropriations Committee’s recent request that the Commission defer enforcement in conjunction with additional efforts to minimize the burdens of the Rule on health care providers and small businesses with a low risk of identity theft problems.
 

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The agent who sells us our professional liability insurance coverage sent me this last Wednesday:

On August 1, 2009, new federal regulations enforced by the FTC will go into effect; the so-called Red Flag rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft.  While implementation of these rules has now twice been postponed, (and some legal professional organizations are protesting their application to lawyers), it is important for lawyers to review them and plan for compliance.  Although the FTC does not appear to specify final penalty amounts for non-compliance, it is clear that violators can be subject to significant civil penalties - making this information especially important for anyone who handles personal identity information of clients or customers.

Here is a link to the FTC website where the rules are discussed.

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The Acrobat for Legal Professionals blog has a great post called "Add Dynamic Exhibit Stamps in Acrobat using a free stamp set."  The electronic exhibit stamp has  both a static graphic element and a changing numeric or alphabetic element and permits you to electronically stamp documents with exhibit numbers or letters.  The tool is very helpful when filing papers in federal court.

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For lawyers, time is money.  For lawyers who charge hourly rates, inefficiency may result in more fees on the front end but will result in a clients over time.

For contingent fee lawyers, efficient practice increases profitability.  This blog post from Litigation Cost Control reminds us of the efficiencies that come from the use of forms and checklists.

The post is geared toward hourly rate lawyers working on complex litigation matters, but hose of us who work on a contingent fee can benefit from these words.

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Or at least move in that direction?   Here is a great post from a lawyer who has figured out how to do it.

An an excerpt:

In the three years that I've been practicing as a solo lawyer I have been completely paperless. Before that, when I worked in a large firm, I kept the files that I worked on by myself in a completely paperless form. So, when I hear people say that it's impossible to be completely paperless I know that's not true. In addition to my own personal experience, I know several lawyers who have completely paperless law practices.

Our office has kept digital files for over a decade.  We are not truly paperless, but everyone has access to virtually every piece of client-related paper in our office from their computer.  (We do not regularly use digital images of medical records - people are more comfortable with paper.)   We save an unbelievable amount of time with the system we have in place and, in fact, I cannot imagine practicing law if I had to deal with paper files.

Thanks to PDF for Lawyers for sharing this information.

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Maxwell Kennerly has written  an excellent post titled "Contingent Fee Business Lawyers as Venture Capitalists" at his Litigation and Trial blog.

An excerpt:

Day in and day out, the primary thing a contingent fee law firm does is spend lots of money. In addition to all the normal costs of a business (rent, staff, etc.), you have to pay your attorneys salaries which are competitive in the market, even against hourly billing firms, and you have to dump loads of money and time into cases for experts, motions, discovery, trials, appeals and negotiations, none of which earn you a dime until the very end.

So I'd say it's no different from Brad's or Fred's ventures: [plaintiff's lawyers] have as strong an incentive against taking frivolous or vexatious claims as they have against investing in unprofitable businesses. The last thing I want to do is spend years of my life and five, six or seven-figures pursuing a case that returns nothing. Like a venture capital fund, our contingent fee law firm turns down far more cases than it accepts.

Of course, Maxwell's thoughts apply to any type of contingent fee litigation.  Every case is an investment, and every good investor engages in due diligence before investing.  Part of that due diligence requires not only analysis of risk but also an understanding of costs.   In other words, you should analyze what it will cost you in time and money if you decide to make an investment in a potential case, and you should also endeavor to understand the likelihood of winning and the likely recovery range.

Any VC fund that does not undertake that analysis quickly goes broke.  Any lawyer asked to do contingent fee work who does not undertake that analysis will do the same.

Please don't give me that worn out "but that is treating law as a business" line.  Let me let you in on a little secret - your landlord, suppliers, and bank think you are running a business.  They want to be paid.  End of story.

I am not saying that you should not do pro bono work.  I am not saying that you should not take cases that are not profitable simply because you believe in the cause or want to help the particular client.  I am saying that you should take those cases consciously, the same way you would make a donation to your church or other organization.   Why?  Because you are making a donation - you are giving away or selling at reduced value something that costs you money to provide.  Once again, that does not mean you should not do it.  It means you should be aware of what you are doing.

Stated differently, it is fine, indeed it is admirable, to  tell yourself "I know that this case is not a money maker for me but I am going to take it because (fill in the blank)."  If you can articulate a reason that is consistent with your values and can afford to make the necessary commitment, go for it.  If not, taking that case will lead to not only financial loss but resentment.  Resentment impacts your productivity and leads to unhappy clients, bar complaints, and more.

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Ken Shigley from Atlanta offers an interesting post concerning his research into and thoughts about some of the lawyers who advertise in his community.

He starts his post with these words:

As a serious personal injury attorney in Atlanta, Georgia, I am frankly embarrassed by the inundation of billboards and TV ads for personal injury lawyers who have little respect within the profession and seldom if ever set foot in a courtroom.

He mentions this appellate court experience of one lawyer who advertises:

Yet another heavy advertiser, who has billboards and bus placards plastered as thick as they can stick all over the metro area, appears in just three reported court decisions, in 1983, 1986 and 1987. But the first of those doesn’t count because he wasn’t representing a client. He was unsuccessfully defending himself in a landlord’s dispossessory action.

Ouch.

We had some similar fireworks in Memphis recently.

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The Tennessee Bar Association has filed proposed changes to the ethics rules governing the conduct of Tennessee lawyers.  The project represents the first effect to change the rules since tan entire  new code was adopted in 2002.

Read the petition of the TBA here.

Read the a red-line version here.

Read a comparison with the ABA model rule here.

The Tennessee Supreme Court has not yet indicated the length of the comment period on these proposals. 

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I came across www.PowerPointforCourt.com, a website that offers a product to teach lawyers and their support staff how to effectively use Powerpoint.  The price?  $89 for a download.

Here are the chapter headings:

• Introduction to Courtroom Technology
• Utilizing Synchronized Deposition Videos
• Formatting the Master Slide
• Header and Footer
• Custom Slide Backgrounds - Inserting Your Logo
• Inserting Video
• Re-Sizing Video
• Linking Within a Presentation
• Opening a PDF in PowerPoint
• Opening a Web Page In PowerPoint
• SmartArt Graphics
• Text Links
• Grouping
• Ordering or Layers
• The Impeachment Machine (Strategies for Using Video)
• Creating Timelines
• Cast of Character Exhibits
• Bullet Point Summation
• Day in the Life Presentations
• Presentation Tips
• Image Preparation
• Working with Audio
• Creating an Inhouse Graphic Design Department
• Flashing Flash (Inserting in Presentation)
• Choosing the Right Equipment
• The Importance of an Index Page
• Handouts are Essential (General Presentation)
• How to Capture and Use Anything (digital)
• Creating Legal Illustrations for use in Court
• Crime Scene Layouts
• Links to Valuable Resources

I have not purchased this product, but am curious to learn if any readers have.  Well, have you?  Any thoughts about the product you can share with your fellow readers?

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"I've got a $1,000,000 lawsuit."

No - you have a lawsuit with a $1,000,000 ad damnum.   There is a huge difference between the two.

Tennessee law requires an ad damnum in all cases except medical malpractice cases.  An ad damnum must  be stated in the initial complaint only in products liability cases;  different judges impose different deadlines on when a specific ad damnum must be stated in other types of cases.

Whenever an ad damnum is stated, there is a risk that the client will assume the stated amount is value of the case.  It might be, but it almost always isn't, and in fact in Tennessee is should be higher than the amount that you reasonably expect the case to be worth because (a) you cannot collect a judgment in excess of the ad damnum and (b) I don't know of a lawyer who is talented enough to predict with 100% certainty 100% of the time who will win the case much less the exact amount of money that will be awarded.  Since there is a penalty for understanding the amount, the natural tendency to state a higher amount.

The problem with that is that you risk that defendant mentioning the amount and calling your client, you, or both greedy pigs.  Judges should grant motions in limine prohibiting the ad damnum from coming into evidence, especially if they require one be stated early in the case, before the plaintiff has finished treatment and discovery is complete. 

The above demonstrates that stating the ad damnum is fraught with danger.

Our ad damnums read something like this:  "a fair and reasonable amount to be determined by the jury in an amount not to exceed $SSS."  That helps us before the jury when the defense lawyer who wants to use the figure against us and gives us flexibility.

But what about the client who seizes on the number - any number - and refuses to let it go?  We have a discussion with the client about the issues raised above (and of course  about setting the actual amount), and then we follow-up the discussion with a letter.  Brandon Bass in our firm has developed a form letter for this purpose and I am happy to share it with you: 

I am writing in follow up to our phone conversation on _______,  2009, in which we discussed the amount of money to ask for if your case goes to trial and the amount to communicate to our opponents at this time.

Under Tennessee law, you must state, in your Complaint filed with the court, a specific maximum dollar amount that you want the jury to award you. Importantly, under Tennessee law, you may not recover any more money than the amount you ask for in your Complaint. Put another way, if a jury decides you should receive more than you asked for in your Complaint, the judge will not let you receive any more than you asked for. For example, if you ask for $100.00 in your Complaint, and the jury decides you should receive $150.00, the most the judge will allow you to recover is $100.00. The extra $50.00 is simply not recoverable.

Because you cannot recover more than you ask for, we typically lean on the side of stating an amount that is greater than the amount that we would expect any jury to award under even the best of circumstances. On the other hand, the jury may be offended if you ask for an unreasonably high amount of money, and that could negatively affect your case.
 

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On September 28, 2008 FRE 502 become applicable in federal court.  The rule provides that under certain circumstances the disclosure of attorney-client material and work product material does not constitute a waiver.  Read the full rule here.

Federal Evidence Review is a great resource for infromation about this rule.  Click here for all you need to know abou this rule.

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Every month I let you know that a new edition of our newsletter - Trial Law Report - Tennessee Tort Law Edition - is in the mail to our subscribers.  This month, we are making a free copy available  for downloading by each of you, the loyal readers of this blog.  (The newsletter is ordinarily printed and mailed on the 1st of each month.)

Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the Tennessee appellate courts every month.  We also provide you will a complete listing of all cases pending before the Tennessee Supreme Court and the United States Supreme Court on these subjects.  Finally, I write a monthly column on some aspect of the law of trial each month.

The newsletter isn't cheap - it is $349 plus tax for twelve monthly issues.  However, our goal was to create one resource where tort lawyers could read what they need to read about the cases they need to be aware of in the area of torts, civil procedure, evidence and trial.  We believe that by delivering a accurate, readable summary of those cases to your desk once a month will save you hundreds of dollars worth of time each month,even if you attempt to keep up with all of them on your own.  And if you don't attempt to keep up with them on your own, we will bring decisions to our attention you would have otherwise missed, making (and saving) you money every month.

Download the May 2009 edition here.  And, if you believe that it will help you serve your clients, order here.

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Westlaw charges you for looking at the language of a public act after it has been codified.

The Tennessee Secretary of State has the language of the public act for free at this site.  The site includes public acts back to 1997.

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The lawyer in this case was not permitted to collect expert witness expenses from his client after an unsuccessful med mal case because the fee agreement with the client said only that the client "may" be responsible for such expenses.

What does your fee agreement provide?

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Structured settlements were up 25% in the 4th quarter of 2008 (compared with the previous quarter), and totaled nearly $1.8 billion, according to this article in the National Law Journal.  The article relates the increase to the economic turmoil we have been experiencing.

Perhaps.  But what were they in the 4th quarter of 2007?  I would expect that structures are usually up some percentage in every 4th quarter because there tends to be more settlements in the 4th quarter than during other times during the year.   Thus, a comparison with the 4th quarter of 2007 would have been much more relevant on the issue.

That being said, I would not be surprised to see plaintiffs tend to gravitate to structured settlements during these times.   Most plaintiffs do not have the ability or time to manage investments, and the events of the last 6 months prove  that professional money managers are not immune from losses in the market.

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Here is an interesting article from the ABA Section of Litigation on the issue of handling the difficult adversary lawyer.   We have all been there. 

Here is a description of a type of lawyer each of us has seen:

The Bully. Nearly all difficult adversaries exhibit bullying behavior. This lawyer is rude, ruthless, and unhappy unless he controls everything. From day one, the Bully has told you what was going to happen and threatened you and your client with motions, sanctions, and more. Depositions with the Bully are torture. You cannot get a question in without a speaking objection. If he is questioning your witness, the Bully ruffles at every objection and asks every question of your witness with an heir of arrogance, indignation, and contempt.

Enjoy.

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Plaintiff talked to lawyer (later the defendant) about a potential car wreck case.  The lawyer allegedly gave the plaintiff wrong information about the statute of limitations applicable to the claim.  Plaintiff's car wreck case was dismissed as time-barred.

Plaintiff sued the lawyer for negligent misrepresentation.  Lawyer said that he never represented client and, indeed, client never alleged an attorney-client relationship. 

The Colorado Court of Appeals allowed the case against the lawyer to proceed under the negligent misrepresentation theory as set forth Section 552 of the Restatement (Second) of Torts (1977), saying that "in Colorado a claim based on negligent misrepresentation is independent of any principle of contract law and that privity is not required."

The Colorado court also cited Comment e to the Restatement (Third) of the Law Governing Lawyers Section 15 with approval.  That comment states as follows:

When a prospective client and a lawyer discuss the possibility of representation, the lawyer might comment on such matters as whether the person has a promising claim or defense, whether the lawyer is appropriate for the matter in question, whether conflicts of interest exist and if so how they might be dealt with, the time within which action must be taken and, if the representation does not proceed, what other lawyer might represent the prospective client. Prospective clients might rely on such advice, and lawyers therefore must use reasonable care in rendering it.
 

The case was permitted to proceed because

plaintiffs alleged in their complaint that (1) "at all pertinent times, Defendant Allen was acting within the course and scope of her employment with Defendant Katherine Allen, P.C."; (2) "[a] reasonably careful attorney, having and using that degree of knowledge and skill of attorneys practicing law in November 2003," would have told them that the statute of limitations on their negligence and negligence per se claims against the other driver was three years, not five years; and (3) such an attorney would have told them that they could have commenced an action against the other driver before they settled any available workers’ compensation claim.

Our Tennessee readers will recall that Tennessee has adopted  Section 552 of the Restatement (Second) of Torts (1977).

The case is Steele v. Allen, No. 07CA2163 (Colo. Ct. App. Feb. 19, 2009).  Read the opinion here.

Lesson:  Don't speculate on statutes of limitations when discussing cases with potential clients.  If you don't know, look it up.  If you still don't know, tell the client that you don't know.  If the deadline is uncertain, e.g. the discovery rule applies, etc., advise the client of that and give the most conservative date the statute expires, confirming your thoughts in writing.  Tell the client that they should seek the advice of a lawyer as soon as possible so that an appropriate factual investigation can be undertaken and the discovery date ascertained with greater certainty.

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Keeping contemporaneous time records in cases where fee-shifting is allowed just makes sense.  Not keeping such records does not make sense.  And, if the allegations against one attorney are correct, a lack of candor about whether such records were kept can cause  a big, expensive mess.

Result?  A forfeiture of a fee claim of $2,000,000 and a sanction of $25,000. 

Plaintiff's lawyers don't like to keep up with time.  Admittedly, it is a pain in rear to do so.  But the fact of the matter is that the amount of time spent in a case is a relevant - not determinative - but relevant factor in determining the the reasonableness of a fee in a fee-shifting case and  the lack of contemporaneous time records in such cases is always going to cost you money.

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Are you familiar with JD Supra?  It is a website that contains thousands of legal documents prepared by lawyers around the country.  You can search by key word, locate a document relevant to your issue, and use to short-cut your research time.

For example, here is a brief written on behalf of a plaintiff who was opposing a motion by a defendant in a civil case to stay discovery while criminal charges were pending against him for the acts that also gave rise to the civil suit.

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Evan Shaeffer linked me to a great post in the (new) legal writing blog and I quickly determined that I needed to pass it on to you.

Raymond Ward from the Big Easy writes about writing.  His post, "Owning your downloaded legal authorities," has some great ideas, including the recommendation that cases from electronic research sites be downloaded in a word-processing format.  After you have done so, Raymond has several helpful tips, including "[i]nstead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy."

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I admit it:  I am a fan of the Wall Street Journal.  I have read it almost every week day since I was 19, and actually got chill bumps when they started a Saturday edition a couple of years ago.  The editorial page makes me mad as hell every morning, but quite frankly I think it is important to get mad as hell about something every single day. 

Yesterday the WSJ had a great article titled "So, You Want to Be an Entrepreneur."   The intended audience is those who want to start a business, but many of the points made apply to those who intend to start their own law practice.  Here are the ten questions that the article encourages you to ask to see whether you are "up for the challenge of entrepreneurship:"

1.  Are you willing and able to bear financial risk?

2.  Are you willing to sacrific your lifestyle for potentially many years?

3.  Is your significant other on board?

4. Do you like all aspects of running a business?

5. Are you comfortable making decisions on the fly with no playbook?

6. What's your track record of executing your ideas?

7. How persuasive and well-spoken are you?

8. Do you have a concept you're passionate about?

9. Are you a self-starter?

10. Do you have a business partner?

Read the entire article here.

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The goal of lawyers who represent plaintiffs in personal injury and wrongful death lawsuits is to help the client.  But sometimes the receipt of proceeds from a lawsuit can actually cost your client money. 

How can that be?  If your client is receiving Supplemental Security Income (SSI) and the settlement results in your client having more than $2000 in the bank your client loses his or her SSI payments.  More importantly, people who receive SSI usually receive Medicare benefits - and the loss of SSI for people under 65 will result in a loss of Medicare benefits.  So, you may "win" the case for your 45 year old previously disabled client and put $50,000 in her pocket, but without appropriate planning  she will lose her SSI benefit and her health insurance.  If she has a significant health issue while she is without insurance, she may end losing not only the balance of her personal injury settlement but also whatever she had before the litigation started.

What is a lawyer to do?  First, learn whether or not your client receives SSI and Medicare.  Second, understand how receipt of settlement proceeds will impact those benefits.  Third, determine if there is an appropriate way to structure the receipt of money to preserve the benefits.   Fourth, if there is not a way to do so, make sure your client understands that the settlement will result in a loss of government benefits before your client agrees to accept a settlement proposal. 

Please do not read this post to suggest that it is always inappropriate to settle a case in such a way that government benefits are lost.  As with most things in life, the proper way to handle this issue is not carved in stone.   Rather, one must gather the relevant information so that the client can make an informed judgment about how to handle to issue of future government benefits.

The SSI eligibility rules are complicated.  Our office uses Forge Consulting to assist us in advising clients about the options potentially available under these circumstances.  Charlie Schell is our usual contact with the company, but we have a good relationship with John Bair and Spooner Phillips as well.  These gentlemen understand the issues and would be happy to work with you and your clients.  They work with lawyers across the country on these and other financial issues of interest to plaintiff's lawyers and their clients.

Thanks to my friend Ricky Boren at Hill Boren for recommending this post.

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I know that I have had several posts in the past few months that referenced the work of Paul Luvera, a highly-regarded plaintiff's lawyer from Seattle.   Here is another one - this time on the subject of settlement forms.

Why do I cite his work?  Quite frankly, I will cite any good lawyer's work if I think it will be of interest to the readers of this blog.  The whole idea behind is blog is to share information, and not just information from my own head.  I am thrilled that great lawyers like Paul are willing to share what know, and am happy to pass his knowledge on to you.

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Are you a subscriber to Tennessee Trial Law Report - Tort Law Edition?    The January 2009 issue is now available.

The January edition contains Part One of a three-part article on motions in limine as well as a listing of 29 cases currently pending before the Tennessee Supreme Court  or the United States Supreme Court that are of interest to tort lawyers.

The January edition also contains a summary of  the 20 Tennessee appellate court decisions issued between November 16 and December 15, 2008 that addressed some aspect of  the law of torts, civil procedure, evidence, and trial.  The significance of each opinion is ranked to save you reading time.

Order a sample copy here.   To subscribe click here - we will send you the January edition free and start your 12 month subscription in February.

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A couple weeks ago I wrote a post about use of PDF Portfolios to organize documents.  The source for that post has recently given us access to an eseminar that he did on creating electronic closing binders using PDF technology - either PDF Binder or PDF Portfolio.  The differences between the two programs are explained in great detail.

The author  has also given us access to a 36-page guide called Creating Electronic Closing Binders using Acrobat 9.

These programs  can be used to create electronic briefs, demand letters, etc.

Learn more here.   Thanks for sharing, Rick.

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I have been doing some reading about Adobe Acrobat recently and came across this post about organizing documents using PDF Portfolios.  I have not tried this method of document organization and, I confess, will probably ask one of our paralegals to look into it for our firm rather than attempting to do so myself.

However, I thought I would share the post to (a) see what experience any of you have had with this method of document organization or (b) give you the opportunity to experiment with it.

This original post is a two-part post.  I will post the second segment when it appears.

Thanks to Acrobat for Legal Professionals. 

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The folks at Robert Half Legal did a survey of 300 attorneys among the largest law firms and corporations in the United States and Canada. All respondents had at least three years of experience in the legal field.

Apparently, lawyers were asked, “If you could change one aspect of your job as a lawyer, which one of the following would it be?”  This article says the responses were as follows:

Decreased job stress		31%
Less hours at work or more personal time		30%
Accelerated career growth		14%
Greater professional autonomy		5%
Increased on-the-job training		3%
Higher salaries/compensation		2%
Other		5%
Nothing		8%
Don't know		2%
		100%

One of Robert Half Legal's conclusions after reviewing the survey:  "When it comes to retaining top legal talent, less stress and fewer hours on the job may matter more than compensation."

OK - that is probably true.  What would be much more helpful is to know what amount of pay decrease lawyers willing to accept to get less stress and more free time.    For example, 30% less pay for 30% less work?  No employer in its right mind would accept that deal under ordinary circumstances.

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The United States Supreme Court has ruled that a successful plaintiff may recover paralegal fees in a case against the government covered by the Equal Access to Justice Act.

Although not binding on Tennessee courts in those limited cases where attorneys' fees are recoverable,  the result can be used as support for the general notion that paralegals perform valuable services in litigation and therefore should be given fair consideration in fee awards.

Read Richin Security Service Co. v. Chertoff,  No. 06–1717 (USSC June 2, 2008) here.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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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

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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.

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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:

`(q) Attorney-Advanced Expenses and Court Costs in Contingency Fee Cases- There shall be allowed as a deduction under this section any expenses and court costs paid or incurred by an attorney the repayment of which is contingent on a recovery by judgment or settlement in the action to which such expenses and costs relate. Such deduction shall be allowed in the taxable year in which such expenses and costs are paid or incurred by the taxpayer.'.

(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.

The Ninth Circuit has held that the Internal Revenue Service is wrong. As a result, attorneys in States within the Ninth Circuit can deduct as ordinary and necessary expenses advances on litigation. This legislation would make it explicit under the Internal Revenue Code that these advanced costs could be deducted by attorneys across the country.

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

In addition, I note that tax treatment of these payments is not consistent across all jurisdictions. In Boccardo v. Commissioner, 56 F.3d 1016 (9th Cir. 1995) the Ninth Circuit disagreed with the IRS and held that advances on behalf of clients were "ordinary and necessary expenses" in contingency cases with "gross fee" contracts. So the rule is different in States in the Ninth Circuit; the IRS continues to take the position that expense advances are not deductible as ordinary and necessary business expenses in other jurisdictions. This different treatment is neither logical nor equitable.

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.

(a) In General- Paragraph (20) of section 62(a) of the Internal Revenue Code of 1986 is amended to read as follows:

`(20) COSTS INVOLVING CIVIL CASES- Any deduction allowable under this chapter for attorney fees and court costs paid by, or on behalf of, the taxpayer in connection with any action involving a civil claim. The preceding sentence shall not apply to any deduction in excess of the amount includible in the taxpayer's gross income for the taxable year on account of a judgment or settlement (whether by suit or agreement and whether as lump sum or periodic payments) resulting from such claim.'.

(b) Conforming Amendment- Section 62 of the Internal Revenue Code of 1986 is amended by striking subsection (e).

(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 change does not affect the requirement that attorneys pay federal income tax on legal fees they receive. What it does eliminate is the inequity of the client also paying tax on those same fees, when the client not entitled to, and did not receive that money under the terms of a contingency fee contract.

The tax treatment of these contingency fees is determined through a patchwork of rules that are confusing and inequitable. The legislation would ensure more uniform treatment of contingency fees in all types of litigation and across jurisdictions. In particular, it will eliminate situations in which a plaintiff's recovery may be diminished, primarily as a result of the Alternative Minimum Tax (AMT), by taxation at a rate of approximately 60 percent on the taxpayer's net recovery, after contingency fee.

This change is common sense and will ensure consistent and fair treatment of taxpayers. Congress never intended that the attorneys' portion of recoveries should be included in taxable income--whether for regular income or alternative minimum tax purposes.

Section 61(a) of the Code requires taxpayers to include in their gross income "all income from whatever source derived," absent a contrary provision in the Code. Awards for physical personal injury, other than punitive damages, are not taxable (26 U.S.C. 104(a)(2)). Awards of fees in cases primarily related to employment may be deducted "above the line" as a result of the American Jobs Creation Act.

With these exceptions noted above, the Code treats taxpayers as having received the entire amount of any award or settlement (including any contingency fee portion). This means that for awards based on certain claims or for punitive damages, the taxpayer must include in adjusted gross income the entire award, even though the true benefit or income to the taxpayer after contingency fees and costs may be only 50 percent or 60 percent of the award. This

Accordingly, the current tax structure, when coupled with the compensation arrangement found in contingency fee contracts, generally (1) creates an enormous tax burden, especially for lower income individuals who often have contingency fees as their only avenue of obtaining legal counsel; and (2) may drive up settlement costs as a result of the serious diminution of the plaintiffs actual award after taxes.

An illustration of the tax inequities and inconsistencies follows: an individual/client who obtains $500,000 in a legal settlement on a fraud claim, who incurs $200,000 in legal fees and costs, and nets only $300,000, still may owe AMT on $500,000, and would have to pay approximately $160,000, or about 60 percent of the damage award, in federal and state taxes. This leaves the client with only $140,000 of an award intended to compensate the client in the amount of $500,000.

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.

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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."

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.)

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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.

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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, ㋔㋔ 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.

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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.

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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.

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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.

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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.

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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?

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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.

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

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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.

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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.

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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, ㋔ 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 ㋔ 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.

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"An appeal is frivolous when it "has no reasonable chance of success," Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977), or is "so utterly devoid of merit as to justify imposition of a penalty," Combustion Eng'g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)." I see one or two tort decisions a year in Tennessee where damages are imposed under the "frivilous appeal" statute.

Here is one.

Plaintiff sought compensatory and punitive damages against a pharmacy for mis-filing a prescription. A discovery fight ensued. One letter from Plaintiff's counsel included the following language:

"Certainly, you are at liberty to take whatever next step "in
obtaining the discovery" you believe your zealous representation of Walgreen to require. At least, you know where our differences lie. If you file a motion, you should be prepared for a 10 - 20 page response in opposition; if you win and we eventually become appellants, the order granting your motion will be an error we will assert to be reversible. In short, I hope your client believes enough in the rightness of what you are advocating to spend $5,000 to $10,000 attempting to secure a ruling consistent with what you claim.

I tell you this so your adjuster does not have to look back in
a year or two and say, "Why didn't somebody tell me this before I spent more defending the case than I could have settled for a year or two ago?" [Emphasis added.]

Defendant then filed discovery motions and motions for partial summary judgment on the punitive damage issue and negligence issue. At the hearing on these motions (after hearing the way the judge was going to rule on the motions) Plaintiff announced an intention to take a Rule 41 dismissal as to all claims except the punitive damage claim. An appropriate order was entered later, as was an order granting partial summary judgment on the punitive damage claim.

Plaintiff went to the Court of Appeals. After a nice discussion of the law of Rule 41 dimissals and ruling that "the effective date of the Beals' nonsuit of their remaining claims was November 18, 2004, the date the trial court, in its discretion, permitted the Beals to take a voluntary nonsuit of their remaining claims by entering the Beals' proposed order," the Court then turned to the partial summary judgment issue. Here is the holding:

"After suffering a defeat on their punitive damages claim, the Beals voluntarily nonsuited their remaining claims. Thus, all causes of action which supported an award for compensatory damages have been voluntarily extinguished by the Beals. Even if we were permitted to take jurisdiction of the issue related to punitive damages and ultimately found in favor of the Beals, we certainly could not remand this case to the trial court for a trial on punitive damages alone. Stated differently, there would be no practical benefit to ruling on a stand-alone issue, which the trial court could not adjudicate once we returned the case to the lower court. Such would be in the nature of an advisory opinion, which the Beals could then rely on in the event they sought to re-institute their nonsuited claims. This we decline to do. Accordingly, the present appeal is deemed moot, therefore, it is dismissed."

It then imposed damages for frivilous appeal.

Is this decision correct? Yes. When the judge announced his intention to dismiss the punitive damages portion of the case, there were only three realistic alternatives available to the plaintiff. First, Plaintiff could ask that the judgment not be made a final judgment, thereby reversing the right to appeal on the issue until after the case was tried. (That motion should have been granted.) Second, Plaintiff could ask that the judgment be a final judgment, ask for an interlocutory appeal on it, and ask that the litigation be stayed in the meantime. Third, Plaintiff could let a final judgment on the issue go down and lose an appeal right. Those were the only alternatives. This appeal was not an option once Plaintiffs asked for and received a nonsuit of the remaining claims. A claim for puntive damages is a dependent claim - it depends (in this type of case) on proof of underlying misconduct of an intentional or reckless nature. If the underlying case is dismissed the claim for punitive damages goes away.

But all of that isn't why I write this long post this early in the morning. I write it - as suggested by the opening paragraph and the placement of the post in the "Managing Your Practice" category - about the need to use caution when drafting letters and making statements to opposing counsel. There is little doubt in mind that counsel's letter played a large role in the imposition of frivilous appeal damages here. Indeed, the section of the Court's opinion that addresses the issue of frivilous appeal addresses Defendant's support on "among other things, the threat of appeal contained in the letter" from Plaintiff's counsel.

Litigation is stressful. All of us, from time to time, grab the dictaphone or the keybound and make some statements that could come back to haunt us if we did not put the brakes on before we signed the letter or pressed "Send." It is easy to - indeed, it is hard not to - "fight back," and raise the level of controversy with each volley. And it is easy to engage in chest-pounding and not-so-subtle threats.

Such conduct can - and often does - come back to haunt you. Maybe not in that case. Maybe not for 10 years. But it comes back. In spades. And, sometimes, in damages.

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You should. Or should do something like it.

When you produce documents to an opponent it is nice to be able to demonstrate which documents you turned over. "In response to RFP #4 Plaintiff produces documents 0023 - 0045."

By marking each document (or photograph) with a unique number you will be able to demonstrate what you have produced. Numbering documents also helps you remember months later what you previously produced so that you do not have to worry whether you inadvertently failed to produce something you were supposed to produce.

Use of a numbering system also helps you better identify documents which you are withholding on the basis of privilege or work product.

You can also use this system to keep up with what documents you have given to your consultant or expert.

Finally, numbering documents also gives you a handy way of referring to them on the record at depositions.

Numbers can be applied manually through the use of a mechanical or electronic stamp, on labels produced by a printer, or electronically.
See samples of stampind devices here. For an example of software that will stamp identifying information onto a PDF document look here.

I am reminded of the value of Bates-stamping given my experience over the past week. I have gotten involved in two cases previously handled by other lawyers. I am having difficulty determining what was produced by my new clients and what was not and what was received in response to Rule 34 requests by my clients from what source.

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I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).

What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.

I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.

More importantly, however, it is very difficult to determine the value of many cases early in litigation. Experienced lawyers know that the value of cases increases and decreases frequently during the discovery phase. Requiring a lawyer to state an ad damnum early will almost certainly result in an inflated ad damnum, which will then be used against the plaintiff later in the case. (If the original ad damnum is too low that will also have to be explained.)

Also, lawyers seem to forget that if they get sued for malpractice arising the ad damnum used in the original complaint will be Exhibit A at the trial of the negligence action. Obviously, that does not mean that you should understate damages out of fear of a professional negligence case. Instead, I believe that if you state an ad damnum it should be one that reflects the upper limits of the range of reasonableness for your case.

Do you need an ad damnum at all? That is the subject of a future post.

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Did you know that court costs are changing in Tennessee effective 1/1/2006?

Historically, plaintiffs paid a relatively small filing fee at the beginning of a case and then additional charges accumulated based on the number of pages that were filed.

Beginning the first of the year, charges will be made similar to method used in federal court: there will be a flat fee of $267.50 charged in "Category One" cases and $192.50 in "Category Two" cases. Lesser fees will be charged in domestic - related cases.

"Category One" cases include all tort cases filed in circuit courts. "Category Two" cases include worker's compensation cases and General Session Court appeals.

Read more about the fees in Davidson County here.

So, the bad news is that your front-end investment in costs will be considerably higher than it has been historically. The good news is that in cases where a lot of documents have been filed the costs will be reduced considerably.

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It is a good idea to write a reject letter to a potential client when you turn down a case. A good number of lawyers tell the receipent of the letter something about the statute of limitations on the particular claim in such a letter. This decision reminds us why we need to be careful when we do so.

A Chicago law firm rejected a wrongful death claim and advised the potential client that the statute of limitations was two years. In fact, it was one. The letter concluded as follows: "Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate's legal rights may be fully protected. Do not delay."

The receipent sought the advice of another attorney within the applicable one-year period; that attorney had one meeting with the client and then rejected the case. His reject letter said this: "Please be advised that all lawsuits are limited by a period prescribed by statute. You need to have your daughter's case filed within the applicable limitations period. If you do not do so, you may lose whatever rights you have to recovery."

Several months in the one-year statute remained at that point. After the one-year statute had expired but well before the two-year period began to run a third attorney was asked to look at the case; this attorney advised that the statute of limitations had expired.

The first law firm was sued and argued that their duty to the client ended when their representation came to an end within the statute of limitations and also that the acts of the second attorney broke the causative chain as a matter of law. They also argued that the plaintiff did not reasonably rely on their advice.

The Illinois Court of Appeals reversed summary judgment in favor of the first firm. The court held that case law "do[es] not suggest that an attorney who declines to accept a case after a preliminary exploratory meeting with a prospective client assumes responsibility and corresponding liability for the preceding attorney's mistakes."
The defendants argued that the second attorney had the duty to tell the plaintiff the amount of time that was left before the statute expired. The court disagreed, saying "[w]e do not find any Illinois authority which would impose that burden upon an attorney on the strength of an exploratory meeting which did not result in an acceptance of the case. Nor can such cursory involvement suffice to be characterized as a superceding cause so as to relieve the original attorney of liability for his mistakes and shift it to the shoulders of the second attorney."

With regard to the argument that the plaintiff did not reasonably rely on the defendants' advice, the court held that the reliance was not unreasonable as a matter of law. The case was remanded for trial.

So, do we continue to write reject letters or not? And it we do, how much information do we give on the statute of limitations? The second lawyer did not give a specific date and it appears he is off the hook. The first lawyers (now the defendants) gave a deadline but the wrong deadline and now will face a jury.

It seems to me that we should still write reject letters and, if we choose to give statute of limitation advice, we should use the most conservative view of the statute, and say that that is what we are doing.

I read this opinion the day after I learned that our malpractice rates were going up about 200% in one year - with no claims history.
I knew there was some reason I woke up at 2:54 A.M. and could not get back to sleep.

It is now 3:36.

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The high court of Massachusetts upheld a lower court decision that found and enforced an oral fee-splitting arrangement between two lawyers. The lawyer who refused to share the fee claimed that the agreement was not only not it writing but was not agreed to by the client (which is also required in Tennessee).

The Court held that the requirement of client approval was to protect the client, not a breaching lawyer. The agreement was upheld.

The Court also announced this rule for future cases: "the referring lawyer, who usually is in the best position to secure compliance with rule 1.5 (e), is required to disclose the fee-sharing agreement to the client before the referral is made and secures the client's consent in writing. The rule will be construed to require this in fee-sharing agreements that are formed after the issuance of the rescript in this decision. Although the primary responsibility for compliance will fall on referring lawyers, lawyers to whom referrals are made are not absolved of all responsibility, and should confirm, before undertaking such representations, that there has been compliance with rule 1.5 (e). We emphasize that although failure to comply with the rule may not necessarily render a contract unenforceable between lawyers, it may subject both lawyers to disciplinary action upon division of a fee."

Read the entire opinion here.

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Here is a e-book written by Judge Mark Painter in Ohio. The book is called "Legal Writing 201" and it contains 30 rules that will help you write for, not like, a judge. (That is what the sub-title says, I promise.)

Thanks for the lead from Appellate Law and Practice.

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Read this opinion starting at Page 17 to get a court's insight on how not to present an appeal.

An example: "Further, most of plaintiffs' claims are patently disingenuous. Arguments regarding use of the Streamlined Rules, failure to find the arbitration was binding, the selection of the arbitrator and his subsequent disclosures or lack thereof, and the order compelling arbitration distort the law, the facts, and logic."

Ouch.

Thanks to Shaun Martin at California Appellate Report for bringing this case to my attention.

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Plaintiff's lawyers don't really do legal research, do they?

Only the plaintiff's lawyers who want to win.

If you don't know the law it is difficult to make intelligent case selection decisions. There is nothing wrong with pushing the envelope, but you need to know you are pushing the envelope when you accept the case so that you can make an informed decision that you are taking a case that has appropriate facts that increase the likelihood that you will push the envelope and live to tell about it.

In addition, it is difficult to marshall your evidence without knowing what it is you have to prove to prevail.

Here is an interesting article about computerized legal research. I intend to try it on my next project. Whyu don't you give it a try and let me know how it works for you?

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Well, its 9:30 a.m. and I still haven't posted on the blog today. Sorry. I gave a speech in Memphis last night to a group of nurse practitioners (more in a later post) and drove back to Music City (180 miles) early this morning.

My post this morning is a Guest Post that I wrote for Evan Schaeffer's Legal Underground blog. Evan is a plaintiff's lawyer from Madison County, IL and has a great blog that I would encourage you to put on your RSS feed. He was kind enough to let me put a post on his site. He titled it "A Plaintiff's Lawyer Explains the Economics of Turning Down Cases."

Some of you have heard me speak on this topic; it is part of the seminar our firm offers every year to young lawyers who practice civil litigation. This year the seminar will be held on December 14 and 15 in Nashville. A mailer on the seminar will be coming out any day and you will be able to register via the Web. More on that later.

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An appellate lawyer in a big firm got his hand slapped by a 9th Circuit judge for his firm's choice of words in a brief.

Some examples:

"The district court's refusal to apply Daubert was erroneous and stands as yet another example of the court's twisting the substantive law in furtherance of the procedural class action device."

"The district court's failure to apply this elementary principle is grounds for reversal."

"The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Unmanageable" Id. at 35. (This text was in a section heading, in bold text and up-style capitalization.)"

"The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs' theory of the case."

See more at Minor Wisdom, whose author collected the above examples. The post has a link to the entire brief.

Bottom Line: Judges are human. Every judge has some level of respect for other judges. Every appeal is by definition a public statement that you disagree with one or more decisions of a lower court and the judge or judges on that court, but one can disagree with a decision without attacking a judge. A ruling is "inconsistent with established precedent." A decision is "an unwise extention of current law." A holding "lacks support in current case law." The judge's interpretation of a statute is "strained." This phrases offend no one - expect perhaps the judge (or judges) you are challenging, but even that is rare in my experience. Most judges know that their papers may be graded upstairs and that it is the job of the appellant to persuade the appellate court to reverse.

All of us can learn from this experience.

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Lawyers have a lot to worry about. It's an occupational hazard. Want one more stressor on your plate? If you're filing electronically, and the court's website runs so slowly that you start before the filing deadline but finish an hour after the deadline, your filing may not count. Read about it over at our Tennessee Business Litigation blog.

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Eighty percent of our fees are earned from contingent fees representing plaintiffs in personal injury and wrongful death cases arising from medical negligence, careless truck or automobile drivers, etc. The rest of our fees come from hourly work arising from commercial litigation or, occasionally, plaintiffs in personal injury cases who prefer to pay by the hour.

I say that to say this: client selection is a key to profitability and sanity in a trial practice. In a personal injury case, poor client selection can result in the loss of an otherwise good case. In a commercial case, a bad client can cause untold grief.

Here is a link to a post by Matthew Holmann under the title "Fire These Clients Now," who in turn links to post from a software shop.

Here is a sample of problem clients from Matthew's post:

THE DISILLUSIONED consistently expresses disappointment with your work even though it is of good quality and conforms to spec.

THE SUSPICIOUS consistently expresses a lack of trust, disdain for your work, or questions your integrity.

THE CHISELER consistently complains about your bill, even though it conforms to the estimate they agreed to.

THE BULLY consistently is verbally abusive or threatening to you.

THE SOMETHING-FOR-NOTHING consistently increases the scope of the project but refuses to pay for the additional work.

As I said above, go to Matthew's post for more types of problem clients.

Sometimes, you make more money turning down work than you do accepting it. More importantly, you can (help) preserve your sanity by making good case acceptance decisions.

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