Day on Torts

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.

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.

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.

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. 

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.

Here is an interesting article on the new Adobe 8

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.

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

Thanks Evan.

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.

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.

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.