Jury Selection - Exercising Preemptory Challenges

A couple years ago I wrote this post about how to exercise preemptory challenges.  Last week, I got a call from a lawyer on this issue once again, and thought I should re-run it.

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges.  But recall that Rule 47 of  Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire  text of Rule 47:

47.01. Examination of Jurors.–The court shall permit the parties or their attorneys to conduct the examination. At or near the beginning of jury selection, the court shall permit counsel to introduce themselves and make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case. The court, upon motion of a party or on its own motion, may direct that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected jurors and other prospective jurors. 

47.02. Additional Jurors.–The court may direct prior to the start of jury selection that one or more jurors in addition to the regular jury of twelve persons be called and impaneled. The additional jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. If one or more additional jurors are called, each party is entitled to one peremptory challenge for each such additional juror, up to the maximum provided by law. Such additional peremptory challenges may be used against any regular or additional juror. The trial court in its discretion may use either of the following methods to select and impanel additional jurors: 

(1) During the jury selection or the trial of the case, there shall be no distinction made by the court as to which jurors are additional jurors and which jurors are regular jurors. Before the jury retires to consider its verdict, the court shall select by lot the names of the requisite number of jurors to reduce the jury to a body of twelve or such other number as the law provides. A juror who is not selected to be a member of the final jury shall be discharged when that jury retires to consider its verdict. 

(2) Following the selection of the jury of twelve regular jurors or such other number as the law provides, the additional jurors shall be selected and impaneled as alternate jurors. Alternate jurors in the order in which they are called shall replace regular jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict. 

47.03. Procedures for Exercising Peremptory Challenges.–After prospective jurors have been passed for cause, counsel will submit simultaneously and in writing, to the trial judge, the name of any juror in the group of the first twelve (or more if additional jurors are seated) who has been seated that either counsel elects to challenge peremptorily. Upon each submission, each counsel shall submit either a challenge or a blank sheet of paper. Neither party shall make known the fact that the party has not challenged. Replacement jurors will be seated in the panel of twelve (or more) in the order of their selection. If necessary, additional replacement jurors will then be examined for cause and, after passed, counsel will again submit simultaneously, and in writing, to the trial judge, the name of any juror in the group of twelve (or more) that counsel elects to challenge peremptorily. This procedure will be followed until a full jury has been selected and accepted by counsel. The trial judge will keep a list of those challenged and, if the same juror is challenged by both parties, each will be charged with the challenge. The trial judge shall not disclose to any juror the identity of the party challenging the juror. [As amended by order filed February 1, 1995, effective July 1, 1995; and by order filed January 31, 2003, effective July 1, 2003.] 

Subjective Medical Findings

Did you know that there is  a statute that expressly permits physicians to base their opinions on subjective complaints?

Here it is:

T.C.A.Sec. 24-7-115

"In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts. It is declared to be the intent of this section that medical opinions based on subjective findings are no longer to be excluded from evidence whether the opinion is from the treating expert or an expert called in for purposes of examination and evaluation."

Tort Law Tibit - Negligence Per Se

 What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker's of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

(Originally appeared May 39, 2005).

Use of Demonstrative Aids At Trial-Revisted

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)?  Here is a  statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury...." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes  a "similar device" in the 21st century.  Therefore, if you get an objection like "she can't use that Powerpoint presentation - its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

Tort Law Tidbit

This is an unusual tort law tidbit directed only at lawyers for plaintiffs.  If you are not interested in reading a rant, I suggest you move to a different site now.

If you represent plaintiffs in tort cases you need to be a member of the Tennessee Association for Justice, a contributor to its Circle of Advocates,  and a contributor to  Lawyers Involved For Tennessee, a PAC for lawyers interested in preserving the civil justice system.

TAJ provides access to information which will help you be a better lawyer and dues partially fund the lobbying effort in the General Assembly on behalf of you and your clients.  The organization plays a critical  role on Capitol Hill.

But that is not enough.   A regular contribution  to LIFT supports political candidates who have demonstrated support for the political justice system.  These contributions are essential - candidates need contributions to successfully run for and stay in office.  And a TAJ Circle of Advocates contribution funds the majoirty of the legislative effort.

Some people join TAJ and not the Circle of Advocates or LIFT, claiming they don't like politics.  In my experience, those people don't join LIFT or give to the Circle because they don't get a direct benefit for their contribution.  In other words, they will give money to an organization like TAJ because they get something of more value in return, but they won't give to LIFT or the Circle because they don't see an immediate return.

In short, these people are "takers," not "givers."   In other words, they are selfish. 

I am not saying that people need to take food off their table to support these organizations.  And to be sure there are some plaintiff's lawyers with health or other issues who cannot give. But almost every lawyer can afford to make some level of contribution, and those of us who have enjoyed the benefits of the jury system need to do more than others.  LIFT accepts contibutions of as little as $30 per month, less than a bottle of wine in a decent restuarant.

I have no respect for "takers."  I am fed up with plaintiff's lawyers driving around in fancy cars and bragging about their second homes who can't manage to make a contribution to LIFT.  I am fed up with lawyers who advertise for personal injury cases but who refuse to contribute to support the legal rights of their clients. 

You either believe in what we do or you don't.  If you do, put your money and time where your mouth is.  And if you don't do something else.  Don't take from those who are willing to give.  Those of you who do should be ashamed.

No doubt some of the takers who read this will be offended.  As you might have guessed  I could not  care less.  In fact, if I could find a way to prevent takers  from reading this blog I would.  The idea that a taker might get something of value here - yet another taking - disturbs me.

I do not intend to change the mind of takers by these comments.  (I do hope that those of you who have let your contributions lapse inadvertantly or have not realized the importance of your contributions will step up to the plate and give.)  True takers are not negligent - their conduct is intentional and they will not change it because anyone points it out. 

Rather, I want those of us who make a contribution to these organizations to look over the list of contributors published in The Tennessee Trial Lawyer magazine.   See who is missing.  And the next time a taker asks for advice, wants you to share the name of an expert, etc., just tell them "no. " They have taken enough.   Don't refer these people cases.  If they believe they live on an island let them live there - alone. 

By the same token, share with those who are givers.  Those who give need to support other givers.  They deserve it.  A rising tide lifts all boats.

I am sure some taker will write a comment about what a jerk I am.  Please do.  I will publish it.  But  when you write it please have the courage to use your real name.  And then tell us how much money you made representing plaintiffs in personal injury cases in the last five years and why you can't afford to give.

Oh yeah, and tell us what kind of car you drive.

Evidence of Settlement

T.C.A. Sec. 29-11-105 (b) says as follows:  "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater."

Does this prohibit a defendant from introducing evidence of a settlement with another defendant but permit a plaintiff to do so (at plaintiff's option)?  If so, can the plaintiff introduce the fact of settlement, the amount of the settlement, or both?

Savings Statute for Dismissed Federal Court Actions

T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.

Here is the exact text of the statute:  "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court."

LImit on Number of New Trials

Did you know a litigant is limited to no more than two "new trials" in any action?

The relevant statute is T.C.A. Sec. 27-2-101.  Here it is:

"Not more than two (2) new trials shall be granted to the same party in an action at law, or upon the trial by jury of an issue of fact in equity."



Subjective Medical Findings

Did you know that there is  a statute that expressly permits physicians to base their opinions on subjective complaints?

Here it is:

T.C.A.Sec. 24-7-115

"In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings; provided such opinions are those of persons otherwise qualified as medical experts. It is declared to be the intent of this section that medical opinions based on subjective findings are no longer to be excluded from evidence whether the opinion is from the treating expert or an expert called in for purposes of examination and evaluation."

Tort Law Tidbit

Did you know that there is a cause of action for malicious harrassment in Tennessee? 

The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney's fees and costs, and punitive damages."  Tenn. Code Ann. § 4-21-701 (1998).

The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:

"[A] claim of malicious harassment requires not only that a person acted maliciously, i.e., ill-will, hatred or spite, but also that a person unlawfully intimidated another from the free exercise or enjoyment of a constitutional right by injuring or threatening to injure or coercing another person or by damaging, destroying or defacing any real or personal property of another person."

Washington v. Robertson County, 29 S.W.3d 466, 473 (Tenn. 2000).” Id.

To be actionable under section 4-21-701, the harassment must be based on the victim's "race, color, ancestry, religion or national origin."  Surber v. Cannon, No. M1998-00928-COA-R3-CV, 2001 WL 120735 (Tenn. Ct. App. Feb. 14, 2001).

Tort Law Tidbit

Do you ever finding yourself confident that something is true but not knowing where to find support for your belief?

For example, we all know that parents have a right to seek medical expenses and loss of services in the event their child is injured.  And we know that a custodial parent controls litigation in the event of injuries to a child.  But what is the basis for that belief?

Here is the statute on point:


T.C.A.. Sec. 20-1-105.   Expenses and loss of service incident to injury to child

(a) The father and mother of a minor child have equal rights to maintain an action for the expenses and the actual loss of service resulting from an injury to a minor child in the parents' service or living in the family except that where one (1) parent is dead or has deserted the family, the other parent shall have the sole right to maintain such action.

(b) In case the father and mother of such minor child are living apart and one (1) parent has exclusive legal custody of such child, the parent with legal custody shall have the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to such minor child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to such minor child to the extent the noncustodial parent has paid such expenses.

Jury Selection - Exercising Peremptory Challenges

I got a call today from a lawyer who asked about the method by which peremptory challenges are exercised in state court. 

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges.  But recall that Rule 47 of  Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire  text of Rule 47:

47.01. Examination of Jurors.–The court shall permit the parties or their attorneys to conduct the examination. At or near the beginning of jury selection, the court shall permit counsel to introduce themselves and make brief, non-argumentative remarks that inform the potential jurors of the general nature of the case. The court, upon motion of a party or on its own motion, may direct that any portion of the questioning of a prospective juror be conducted out of the presence of the tentatively selected jurors and other prospective jurors.

47.02. Additional Jurors.–The court may direct prior to the start of jury selection that one or more jurors in addition to the regular jury of twelve persons be called and impaneled. The additional jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. If one or more additional jurors are called, each party is entitled to one peremptory challenge for each such additional juror, up to the maximum provided by law. Such additional peremptory challenges may be used against any regular or additional juror. The trial court in its discretion may use either of the following methods to select and impanel additional jurors:

(1) During the jury selection or the trial of the case, there shall be no distinction made by the court as to which jurors are additional jurors and which jurors are regular jurors. Before the jury retires to consider its verdict, the court shall select by lot the names of the requisite number of jurors to reduce the jury to a body of twelve or such other number as the law provides. A juror who is not selected to be a member of the final jury shall be discharged when that jury retires to consider its verdict.

(2) Following the selection of the jury of twelve regular jurors or such other number as the law provides, the additional jurors shall be selected and impaneled as alternate jurors. Alternate jurors in the order in which they are called shall replace regular jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict.

47.03. Procedures for Exercising Peremptory Challenges.–After prospective jurors have been passed for cause, counsel will submit simultaneously and in writing, to the trial judge, the name of any juror in the group of the first twelve (or more if additional jurors are seated) who has been seated that either counsel elects to challenge peremptorily. Upon each submission, each counsel shall submit either a challenge or a blank sheet of paper. Neither party shall make known the fact that the party has not challenged. Replacement jurors will be seated in the panel of twelve (or more) in the order of their selection. If necessary, additional replacement jurors will then be examined for cause and, after passed, counsel will again submit simultaneously, and in writing, to the trial judge, the name of any juror in the group of twelve (or more) that counsel elects to challenge peremptorily. This procedure will be followed until a full jury has been selected and accepted by counsel. The trial judge will keep a list of those challenged and, if the same juror is challenged by both parties, each will be charged with the challenge. The trial judge shall not disclose to any juror the identity of the party challenging the juror. [As amended by order filed February 1, 1995, effective July 1, 1995; and by order filed January 31, 2003, effective July 1, 2003.]

Tort Law Tidbit - Volunteer Liability

Did you know that there is a federal statute that provides certain limitations on the liability of "volunteers?"

Tort Law Tidbit - Loss of Consortium Under the GTLA

Under the definitions in most insurance policies a loss of consortium claim is included as part of a personal injury claim and therefore the two claims count as one claim for purposes of liability coverage.

Did you know that under the Governmental Tort Liability Act loss of consortium is a seperate claim and therefore a spouse for an injured plaintiff can seek recovery under a "seperate" cap? The case reaching this conclusion is Swafford v. City of Chattanooga, 743 S.W.2d 174, 178-79 (Tenn. App. 1987).

The relevant language: "Although a husband's or wife's claim for loss of consortium will always be "derivative" in the sense that the injuries to his or her spouse are an element and must be proved, the right to recover for loss of consortium is a right independent of the spouse's right to recover for the injuries themselves. The Tennessee Governmental Tort Liability Act reads in pertinent part as follows: " 'injury' means death, injury to a person, damage to or loss of property or any other injury that a person may suffer to his person, or estate, that would be actionable if inflicted by a private person or his agent." T.C.A. ㋔ 29-20-102(4) (1980 and Supp.1986). Although ㋔ 29-20- 403 refers only to "bodily injury or death" in setting the minimum limits of liability coverage under the Act, we think that the specific removal of immunity upon which recovery here rests--that of removal of immunity for injury from unsafe streets and highways of ㋔ 29-20-203--controls. It reads that "immunity from suit of a governmental entity is removed for any injury caused by defective, unsafe, or dangerous condition...." (emphasis added). To hold that the language "bodily injury or death" of ㋔ 29-20-403 controlled would create an exception to the clear removals of immunity created by ㋔㋔ 29-20-201, -202, -203, -204, and -205. We therefore remand this case to the trial court to award judgment to Ms. Swafford for her damages due to loss of consortium."

Tort Law Tidbit - Weather

Need to know the weather at a given date, time and place? Go to Weather Underground, type in the zip code or name of the location you want, and then scroll down to "History and Almanac." Enter the date and find more data than you can imagine.

Getting a Jump Start

A friend of mine who is a defense lawyer told me that in 50 % of the cases he defends he is not served written discovery.

I can imagine that there might be a tactical reason not to serve written discovery in a particular case. I can also say that that situation has not arise in my 24 years of practice.

I have found it best to almost always serve written discovery with the complaint. In many cases, we also serve a notice to depose the individual defendant or a corporate representative at a date we estimate to be 60 days after service of the complaint, when we will have an answer and the discovery in hand. We will almost always modify the date to accomodate the defendant and the defendant's lawyer, but we like to get the case moving right off the bat.

Clients want cases over. Serving written discovery early helps accomplish that goal.

Online MUTCD

The Manual on Uniform Traffic Control Devices is available, free of charge, online at the Federal Highway Administration website. The site not only has the latest 2003 edition, but goes back as far as the 1993 revisions. You should be able to find the right edition to address any pending or potential claim for a roadway that is dangerously unmarked. Compliance with the MUTCD is necessary, but not always sufficient. The MUTCD and the law still require reasonableness by a contractor or highway planner.

The MUTCD is incorporated by reference into the regulations of the Tennessee Department of Transportation. Therefore, violation of the MUTCD is negligence per se.

Tort Law Tidbit - One Thing We Have Missed

As a lawyer who has done medical malpractice work for 24 years I am embarrassed to say this, but I came across this little tidbit a couple weeks ago while preparing for an argument in the Tennessee Supreme Court.

Do we have the discovery rule for med mal cases? "Yes." What is the test? "Plaintiff must file suit within one year of the date that plaintiff knew or reasonably should have known about the injury." Right? Wrong. (Well, it might be wrong.)

The statute (T.C.A. Sec. 29-26-116(a)(2)) says "In the event that the injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery." The test appears to be subjective, not objective.

The Legislature did use the objective-test language when talking about the discovery of the presence of a foreign object. That fact gives rise to the argument that the Legislature must have intended to have a different test for the discovery rule in non-foreign object cases.

Of course, I wouldn't rely on this theory quite yet. The case law all talks about the objective test; the case law relies on Teeters, which pre-dates the 1975 Doctor and Hospital Relief Act.

But if you have a good case you have to take and you have a little statute of limitations problem I think you have a heckuva argument here.

Tort Law Tidbit - Negligence Per Se

What is the name of the case that tells us that violation of a statute is negligence per se? Cook By and Through Uithoven v. Spinnaker's of Rivergate, 878 S.W.2d 934, 937 (Tenn. 1994). What about the violation of a regulation? Long by Cotton v. Brookside Manor, 885 S.W.2d 70, 73-74 (Tenn. App. 1994). An ordinance? Kim v. Boucher, 55 S.W.2d 551 (Tenn. App. 2001).

What is a tort law tidbit?

Tort Law Tidbit - Tape Recordings

Can I tape record a hearing or trial?

Yes. T.C.A. Sec. 20-9-104 gives a lawyer the right to use a tape recorder as an aid in making notes of any public proceedings.

Tort Law Tidbit - Uninsured Motorist Claims

Many clients do not understand why their insurance company should have to pay out money because the driver that caused the wreck did not have insurance or did not have sufficient insurance to cover the loss. Those people are reluctant to "sue" their own company, in part because they are afraid that doing so will increase their insurance rates.

T.C.A. Sec. 56-7-1201 (f) gives you information that can help your client feel more comfortable about the decision to seek UM benefits. It provides that an insurer cannot raise insurance rates solely to the payment of a UM claim.

A significant percentage of drivers do not have insurance and a large number of those that do have it have only the mimimum amount prescribed by state law. Consider counseling your clients to increase their liability and UM limits. Many will be surprised how much more protection they can get for a relatively low cost.

What is a tort law tidbit?

Tort Law Tidbit - Criminal Injuries Compensation Subrogation

Did you know that the Criminal Injuries Compensation Act has a subrogation provision?

T.C.A. Sec. 29-013-113 requires that a crime victim who receives payments under the Act and later receives damages in a civil action re-pay the State for monies received under the Act. If a civil action is filed the local DA and others must be sent a copy of the complaint and all subsequent pleadings.

Evidence Rules on Line

Did you know that you can view the Tennessee Rules of Evidence on line at no charge? Go to this site.

Tort Law Tidbit - Injuries to Felons

This is another tort law tidbit.

I do not know why anyone would ever take one of these cases, but Tennessee law gives immunity to those property owners or occupiers who intentionally or accidently cause injury or death to a person who a perpetrating one or more of several enumerated felonies. Immunity is only given to persons who harm the perpetrator while he or she is in the act or while the person is trying to apprehend the perpetrator.

This is the "Don't Mess with Me or Mine or I'll Blow Your *ss Away and Be Immune from Suit" Bill.

However, there is no immunity if the landowner or occupier harms a bystander. In Tennessee, we penalize people who are bad shots.

The statute is T.C.A. Sec. 29-34-201.

Tort Law Tidbit - Privity

Is proof of privity required to file a products liability or other personal injury suit?

No - proof of privity was abolished by statute in T.C.A. Sec. 29-34- 104. It is no longer required in any negligence, strict liability, breach of warranty or UCC action.

Tort Law Tidbit - Sex Abuse Claims Against Therapist

Did you know that Tennessee has a specific statute addressing sex abuse claims against therapists?

The "Therapist Sexual Misconduct Victims Compensation Act" is set forth in T.C.A. Sec. 29-26-201 et seq. A "therapist" is defined as "any person who performs therapy regardless of whether the person is licensed by the state." "Therapy" is also a defined term, and includes marital counseling, substance abuse treatment, family counseling, and other treatment.

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Tort Law Tidbit - Use of Demonstrative Aids in Closing

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury...." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

In this era, I think this statute gives counsel the right to use Powerpoint or a similar program during closing argument.

Tort Law Tidbit - Arguing Pain and Suffering

Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?

No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.

The only possible exception to this rule is medical negligence cases.

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Tort Law Tidbit - When Must The Judge Rule?

I know the judge has to render a decision in my case in some time period. What is it?

T.C.A. Sec. 20-9-506 requires a judge who tries a non-jury case to render a decision and have the judgment entered within 60 days after completion of the trial.

Now, how do you enforce that statute? Well, the is a little more delicate. First, know your judge. Some judges will appreciate a "Motion to Determine Status." Some judges let it be known that they want such a motion in the event something slips through the cracks.

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Tidbit #1 - Release of Agent

Everybody knows that if you release the employee you release the employer, right? Try to find a case that says so.

Well, here it is: Craven v. Lawson, 534 S.W.2d 653, 654, 657 (Tenn.1976). This case holds that release of an employee discharges employer's liability predicated on master-servant or principal-agent relationship.

What is a "Tort Law Tidbit?"

Have you ever been presented with a legal question, thought you knew the answer, but could not put your finger on the case or statute that confirmed your recollection? I have, and it drives me crazy. I think I am right. I know the answer is out there. But I can't confirm it.

My wife, also a trial lawyer, puts it this way: There are things that everybody just "knows" and finding support for those things is hard to do. That is fine, of course, unless what you know ain't so.

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