Best Practices for Defense of Corporate Depositions

The Spring 2012 edition of FDCC Quarterly has an article titled "Best Practice for Defense of Corporate Depositions."  The article is written by a Senior General Attorney for BNSF Railway Company, Mr. Thomas R. Jayne.

Those of us who are usually take depositions of corporate representatives will find the thought process of corporate defense counsel interesting and helpful.

Preparing for Oral Arguments in the Appellate Courts

 Jay O'Keeffe has a written a great post called "10 Things I Wish I'd Known Before My First Oral Argument."  An excerpt:

3. Anticipate hard questions.

As soon as I start working on an appeal, I create a document called "Tough Questions." This document includes every hard question I can think of, regardless of whether I can answer it. I update it constantly through the briefing and oral argument process. The goal is to anticipate every hard question the Court can throw at you, and prepare--and practice--your best answer.

I have had the good fortune to argue a significant number of cases before state and federal appellate courts, and Jay does a great job of sharing ideas that anyone who is facing his or her first - or tenth - oral argument would want to know.  

Oral argument takes much more work than many people recognize.  I once spent over 40 hours preparing for a 15  minute argument in the 11th Circuit - and in hindsight in needed every one of them.  

 

 


Helpful Checklist for Determining Whether A Person is an Independent Contractor or an Employee

I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee."  The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular. 

Well, I looked down the list of issues and it seemed like a pretty good checklist of areas of inquiry in a tort lawsuit to help establish that a so-called independent contractor was in fact an employee and thus the defendant should be vicariously liable for the negligent conduct of that worker.  It appears that Baker Donelson may have got the 20-factor checklist from a government publication or from prior cases on the subject but that is a little unclear. That being said, a hat tip to Baker Donelson for sharing this information.

Here are what Baker Donelson calls the "two threshold questions."

  • Does the hiring company pay its regular employees to perform essentially the same duties as the subject worker who is treated as an independent contractor?
  • Has that worker previously been paid by the company as an employee to perform essentially the same task?      

For a list of "twenty factors to determine whether the company hiring the worker actually has control over the worker" go to the jump.

 

Continue Reading...

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

         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.

Continue Reading...

Practice Tip - Look to the Law First


Here is a tip that will improve the quality of your law practice and your life: look at the law first.

Oh, things a different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes - Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

In fact, I can say that one of two things is almost certainly true when a lawyer is surprised by a motion to dismiss. First, the lawyer did not do his or her homework. If a plaintiff's lawyer is "pushing the envelope" he or she should not be surprised by a motion to dismiss and indeed should welcome it.

Second, a lawyer will be surprised by a motion to dismiss if it frivilous and therefore the lawyer had no reason to anticipate that it would be filed.

(There is one other possibility - the lawyer filing the motion is trying to modify or reverse existing law. That is exremely unlikely at the Rule 12 motion stage.)

It is hard to give advice or to make an intelligent decision about case acceptance without knowing what the law is or, as appropriate, what "holes" there are in the law that will have to be filled by your advocacy.

Furthermore, if you know that you are pleading a theory that is not within your typical practice area or you are "pushing the envelope" having a good handle on the law will let you can draft a complaint that will help you overcome a motion to dismiss. By saying that I am not suggesting that you create facts to overcome the Rule 12.06 motion. Instead, I mean that it is not uncommon for the law to require the use of certain words and phrases when attempting to fit your case within a certain cause of action. Therefore, if you know the elements of your cause of action and you know the words and phrases that have been acceptable to other courts you can do an appropriate fact investigation and, if the facts are present, plead the case accordingly.

Sure, many courts will let you amend your complaint to re-plead your case and that is a great safety valve to have available. But why not try to do it right the first time? Doing so will save you weeks (if not months) of time and also save you anxiety.

In conclusion, let me be clear: there is nothing wrong with "pushing the envelope." My point is that you need to know four-corners of the "envelope" before you can know that you are pushing it. And there is nothing wrong with a lawyer branching out into a new practice area (although one may wish to consider co-counseling the case with a lawyer who is already familiar with the practice area) - just know what you are getting into before you get into it.
 

Don't Make This Argument

I argued a medical malpractice case before the Tennessee Court of Appeals today.  Regular readers know that we prevailed in a med mal case in Maury County last year after a thirteen-day jury trial.  The case has been resolved as to all defendants but one, the ER doctor, and it was that case that was set for oral argument today.  The sole issue on appeal is whether the ER doctor should be absolved from his fault (he did not challenge the jury's finding that his negligence contributed to cause the death of his patient) because of an alleged superseding cause.  The jury rejected the affirmative defense of superseding cause at trial, but the ER doctor is arguing that the conduct of another defendant is a superseding cause as a matter of law.

I heard several other oral arguments as we waited for our case to be reached.  I actually heard one lawyer say words to this effect:  if you do not accept my first argument, my throw-away  argument is blah, blah, blah.

My throw-away argument?  Who would pay attention to a self-described throw-away argument?  There are times you may properly call our opponent's argument a throw-away argument, but if you think your own argument sinks to that level then I suggest you not make it.  And, if you have to make it, then at least call it something else, e,g, a secondary argument, another ground that requires reversal, etc.

By the way, I thought the argument described as a throw-away was a solid one.  I think the party will win the main point his lawyer advanced, but if not he should win on the secondary point. 

 

Practice Tip - Professional Services Sales Tax on Lawyers?

From time to time over the years there has been talk about imposing a sales tax on professional services.   One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government.

Like all sales taxes, a tax on professional services should be paid by the client.  However, to make that absolutely clear to the client, you may wish to include a paragraph similar to the one set out below in your fee agreement.

Possible Tax on Professional Services. In addition to the expenses listed above, in the event that the State of Tennessee imposes a tax on legal services (legal services, expenses of representation, or both), Client agrees to pay any such tax that is assessed against Attorneys. No such tax has been imposed by the State of Tennessee at this time, and Attorneys will inform me if such a tax is passed by the Legislature and signed in to law by the Governor.  If the contingent fee option is chosen, any such taxes will be deducted from the recovery after attorneys’ fees have been calculated and deducted.   If the hourly fee option is chosen, the applicable taxes will added to Client’s monthly bill.

Twombly - What it Means.

Why should you care about the decision of the United States Supreme Court in Bell Atlantic Court v. Twombly , 127 S. Ct. 1955 (2007)?

Because it changed the rules of pleading in federal court and, because Tennessee looks to interpretations of the federal rules to interpret its own similar rules, it will be raising its head in Tennessee state court.

What is the change?  Most of us have assumed that a complaint need only contain "a short plain statement of the claim showing that the pleader is entitled to relief and that, at the motion to dismiss stage, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Conley v. Gibson, 355 U. S. 41 at 45–46 (1957); Smith v. Lincoln Brass Works, 712 S.W.2d 470, 471 (Tenn. 1986). 

No more.  Now a plaintiff must show from the facts alleged that the claim is "plausible."   Conely has been overruled.   It doesn't take much imagination to see what this does to the pleading requirements in complex cases. 

To drive the point home a little harder:  the opinion has been cited by other courts over 2000 times in the last 17 months.

So, what is a plaintiff's lawyer to do?  Read the opinion, understand that it does not only apply to Sherman Act claims, assume that it will not be an issue in the typical intersection wreck case, and assume that it will be an issue in any complex tort case and all business litigation cases excepts a suit to collect on a note.  Then, do an appropriate factual allegation and plead accordingly.

Scary stuff.

 

 

 

 

File. Serve. Now.

Tennessee Rule of Civil Procedure 4.01(3) provides as follows:

 If a plaintiff or counsel for plaintiff (including third-party plaintiffs) intentionally causes delay of prompt issuance of a summons or prompt service of a summons, filing of the complaint (or third-party complaint) is ineffective.

I don't know what "prompt" means.  Is turning process over to a process server in one day "prompt'?  I would think so.  What about five days?   What if it is "promptly" given to a process server who then holds it for twenty days?

I do know what is not prompt.  And so does the Tennessee Court of Appeals.   Butler v. Lamplighter Apartments tells us that waiting eleven months to serve a summons and complaint is not prompt.  Case dismissed.

Why was service delayed?  "Plaintiffs’ counsel admitted that she made a conscious, voluntary decision to prevent service of process. Counsel explained that she withheld the summons because she hoped to settle the case."     Well, it was good of counsel to admit this, but I must say that I cannot think of why one would delay service of process for this reason.  It is not uncommon to file a complaint, have it served, and then reach agreement with the defendant that he, she or it need not answer pending settlement negotiations.  But not serve the summons and complaint for a almost a year?  I am not sure what good that would accomplish. 

This decision sends the message loud and clear:  File.  Serve.  Now.

Read the opinion No. M2007-02508-COA-R3-CV - Filed August 20, 2008) here.

Changes to Rules

A friend emailed me today to ask if the deadline for filing a transcipt on appeal had changed.  It has.

Effective July 1, TRAP 24 and 25 now require that a transcipt be filed within 60 days.  The old rule gave court reporters 90 days to prepare the transcript.  That time period became ridiculous with changes in technology.

Other changes to the rules effective July 1:

TRCP 15 now permits a plaintiff to add a party defendant pursuant to T.C.A. Sec. 20-1-119 without asking leave of court.

TRCP 56 requires the trial judge to say why a motion for summary judgment is being granted or denied.

See all of the other rule changes here.

A Practice Tip for Federal Court

Did you know that you can avoid the use of affidavits in federal court and use declarations instead?

I confess that I did not  until I read this post in  What About Clients?, one of my favorite blogs. 28 U.S.C. Sec. 1746 "allows a federal court affiant or witness to prepare and execute a "declaration" rather than an affidavit--and do that without appearing before a notary. Under section 1746, a "declaration" has the same force and effect of a "regular" notarized affidavit."

Holden Oliver, the author of the post, points out that "an un-notarized declaration with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion."

Thanks, Holden.

Getting Good Results

Here is an interesting post from the Virginia Injury Laywer Blog offering an opinion on how to get good settlements in personal injury cases.  Permit me to comment on a couple:

"1. Don't just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling."

Personal injury trial work is a legal speciality, just like surgery is a medical speciality.  If you take a personal injury case "now and then" when the opportunity presents itself you will almost certainly not get a reasonable value for it.  Stick to what you know.

9. Never, ever "beg," "keep after"or try to cajole an insurance company to settle. The appearance of weakness is weakness. Relax. It's their money they're about to lose.

Fear has a smell, and your opponents can sense it.

"13. You cannot worry -- at all -- about your own financial state or about turning down substantial sums of money. You and your client never had it to lose. It's not your money. Money-hungry lawyers are scared lawyers, not great trial lawyers willing to risk."

If you can't afford to lose, you should not take the case.  Period.  Either turn it down or associate someone competent who can afford to lose.

Thanks to Evan for directing me to this post.

 

 

Race and Gender Challenges in Jury Selection

We all know that Batson v. Kentucky applies in civil cases.  But a new decision released yesterday from the Tennessee Supreme Court - Zakour v. UT Medical Group - actually discusses how judges and lawyers should apply Batson in real life. 

This is the meat of the opinion:

In this case, the trial judge did not explicitly find that the Plaintiff had established a prima facie case of purposeful discrimination. However, we conclude that the trial court did implicitly  make that determination, given the fact that the trial court asked the Defendants to respond to the Plaintiff’s Batson objection. See Woodson, 916 S.W.2d at 905 (“While the procedure used by the  trial judge created difficulties, we must conclude that the trial judge determined that a prima facie case of purposeful discrimination had been established. Otherwise, the court would not have required defendants to explain the challenge.”). The trial court also failed to make a finding of  whether the Plaintiff carried her burden of proving a discriminatory motive by the Defendants. Because the trial court empaneled the jury and allowed the trial to proceed after the Plaintiff’s  objection, we conclude that the trial court found the Defendants had provided a gender-neutral  reason for their challenges. However, we stress again the importance of the trial court making  detailed findings for the record; doing so would have clarified the basis for the trial court’s implicit rulings in this case and simplified the review process on appeal.


When asked to respond to the Plaintiff’s Batson challenge, the Defendants denied an discriminatory motive in exercising their peremptory challenges, then stated that the challenges were “all based on experience and body mechanics.” As we discussed in the previous section, a prima facie case of purposeful discrimination may not be rebutted by a mere assertion of good faith or denial of a discriminatory purpose. See Batson, 476 U.S. at 98. Thus, we are left to decide whether the trial court erred by concluding that “experience and body mechanics” were sufficient reasons under Batson to exercise peremptory challenges of six women on the venire.


As an initial matter, we note that in order to meet the requirements of Batson, a race- or gender- neutral reason for exercising a peremptory challenge must be clear, reasonably specific, legitimate, and related to the particular case being tried. See id. Here, the record does not indicate whether the Defendants were referring to the experiences of particular jurors or the trial experiences of counsel when they gave “experience” as one of the justifications for challenging the six women who were the basis for the Plaintiff’s second Batson objection. Even if we knew which of these two possible meanings the Defendants intended, this reason would still be too vague to justify the exercise of a peremptory challenge. See, e.g., People v. Reynoso, 74 P.3d 852, 858 (Cal. 2003) (stating that a trial court should not relieve the opposing party of its burden to offer a neutral reason for exercising a peremptory challenge “by readily accepting vague explanations”). This leaves us to determine whether “body mechanics” is a sufficient reason under Batson to justify the Defendants’ peremptory challenges of six women on the venire.

We are aware that lawyers routinely take note of a venireperson’s body language during voir dire and use that as a factor in exercising a peremptory challenge. See, e.g., Barfield v. Orange  County, 911 F.2d 644, 646 (11th Cir. 1990); United States v. Ruiz, 894 F.2d 501, 506 (2d Cir.  1990); State v. Seals, 684 So.2d 368, 375 (La. 1996); State v. Carroll, 34 S.W.3d 317, 319 (Tenn. Crim. App. 2000); State v. Butler, 795 S.W.2d 680, 687 n.4 (Tenn. Crim. App. 1990) (citing State v. Hood, 780 P.2d 160, 166 (Kan. 1989)). However, in order to avoid a Batson violation, it is important that counsel specifically state the particular body language that forms the basis for a peremptory challenge ....

However, the Defendants’ reliance on “body mechanics” as a reason for striking six of the ten women in the venire differs markedly from the explanations that have been found acceptable under Batson. The Defendants failed to describe particular displays of body language – such as scowling at the attorneys, failing to make eye contact, falling asleep during voir dire, and so forth – that provided the basis for excusing the female jurors. As we have already noted, in order tosatisfy the requirements of Batson, an attorney’s justification for exercising a peremptory challenge must be clear, reasonably specific, legitimate, and related to the particular case being tried. See Batson, 476 U.S. at 98. The Defendants’ explanation in this case does not meet that standard. Therefore, we find that the trial court erred in overruling the Plaintiff’s second gender based Batson objection.

Read the decision here.  The current citation for the case is No. W2003-01193-SC-R11-CV  (Tenn. January 22, 2007).  The opinion was authored by Judge Sharon Lee from Madisonville, who ordinarily sits on the Eastern Section of the Court of Appeals but served as Special Justice on this case. 

Release Did Not Cover Loss of Consortium Claim

The Nebraska Supreme Court has held that a husband of a personal injury claimant who did not sign a release of his claim could maintain an action for loss of consortium arising from the injury even though his wife released her claim.

The Court said that the claim for loss of consortium was an independent claim and that there was no evidence that the release executed by the claimant released his claim for loss of consortium or gave his wife authority to release his claim.

The case is Simms v. Vicorp Restaurants, 272 Neb. 744 (2006).  The link to the opinion itself does not work this morning (the Court's website must be down) but here is a link to a summary of the opinion which has a link to full opinion.

Adobe 8 To Be Released Soon

Here is an interesting article on the new Adobe 8

Reading Scientific Papers

Scientific papers are often difficult to understand.  The fact that they are often poorly written doesn't help matters, but many of us lack the scientific background to quickly grasp and analyze scientific literature.

Here is an excerpt from an article published in the British Medical Journal that provides some help reading research papers.  Titled "How to read a paper: Assessing the methodological quality of published papers," the article by Trisha Greenhalgh walks the reader through a proper method of determining whether the reader should change his or her practices based on reading a paper.

The key questions: 

"First, was the study original?

Second, whom is the study about?

Thirdly, was the design of the study sensible?

Fourthly, was systematic bias avoided or minimised?

Finally, was the study large enough, and continued for long enough, to make the results credible? "

As you might imagine, the article can be used as a tool for developing a cross-examination of an expert who has relied on a questionable study.


Depositions and the "Usual Stipulations"

Here is a great post - collecting other great posts - about the meaning of the "usual stipulations" in a deposition.

Thanks Evan.

Do You Ask About Personal Notes?

Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue.

In Cangelosi v. Capasso, No. 03--L--392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation.  She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition,  the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff's care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. "

The court ordered production of the notes, saying that they were not protected by the attorney - client privilege because they were not a communication to an attorney for purposes of securing legal advice.  Nor were they protected by the work product doctrine, because " they do not 'contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.'"

I have been in cases where a nurse or other fact witness went home after the event and made personal notes about what occurred.  The information contained in those notes is often very helpful to the case.

Read the decision here.

Introducing "Bad" Documents

The "smoking gun" document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).

Here is an article by Leslie O'Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.

The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.

Practice Tip - Look at the Law First

Here is a tip that will improve the quality of your law practice and your life - look at the law first.

Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes - Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

In fact, I can say that one of two things is almost certainly true when a lawyer is surprised by a motion to dismiss. First, the lawyer did not do his or her homework. If a plaintiff's lawyer is "pushing the envelope" he or she should not be surprised by a motion to dismiss and indeed should welcome it.

Second, a lawyer will be surprised by a motion to dismiss if it frivilous and therefore the lawyer had no reason to anticipate that it would be filed.

(There is one other possibility - the lawyer filing the motion is trying to modify or reverse existing law. That is exremely unlikely at the Rule 12 motion stage.)

It is hard to give advice or to make an intelligent decision about case acceptance without knowing what the law is or, as appropriate, what "holes" there are in the law that will have to be filled by your advocacy.

Furthermore, if you know that you are pleading a theory that is not within your typical practice area or you are "pushing the envelope" having a good handle on the law will let you can draft a complaint that will help you overcome a motion to dismiss. By saying that I am not suggesting that you create facts to overcome the Rule 12.06 motion. Instead, I mean that it is not uncommon for the law to require the use of certain words and phrases when attempting to fit your case within a certain cause of action. Therefore, if you know the elements of your cause of action and you know the words and phrases that have been acceptable to other courts you can do an appropriate fact investigation and, if the facts are present, plead the case accordingly.

Sure, many courts will let you amend your complaint to re-plead your case and that is a great safety valve to have available. But why not try to do it right the first time? Doing so will save you weeks (if not months) of time and will save you anxiety.

In conclusion, let me be clear: there is nothing wrong with "pushing the envelope." My point is that you need to know four-corners of the "envelope" before you can know that you are pushing it. And there is nothing wrong with a lawyer branching out into a new practice area (although one may wish to consider co-counseling the case with a lawyer who is already familiar with the practice area) - just know what you are getting into before you get into it.