Articles Posted in Practice Tip

Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

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The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial.  Rule 3.04.

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.

 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.  

 

 


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.

 

 

1.     Instructions. A worker who is required to comply with another person’s instructions regarding when, where and how to perform the work is ordinarily an employee.

2.     Training. Training a worker indicates that the company wants the services performed in a particular method or manner, which also indicates control.

3.     Integration. Integration of the worker’s services into the company’s core business operations generally shows that the worker is subject to direction and control.

4.     Services Rendered Personally. If the worker must personally perform services for the company, this will indicate control by the company. Alternatively, if the worker is free to engage others to perform the service for the company (i.e., subcontractors), a lack of control by the company is indicated.

5.     Hiring, Supervising and Paying Assistants. Similar to #4 above, if the worker is unable to hire, supervise and pay assistants to perform services for the company, control by the company is indicated. However, a lack of control is indicated when the worker is able to hire his or her own assistants and pay them from the worker’s own funds.

6.     Continuing Relationship. A lengthy and continuing relationship between the worker and the company indicates that an employment relationship exists.

7.     Set Hours of Work. If the worker works certain hours set by the company, employment status is indicated. If the company does not control the hours of the worker, independent contractor status is indicated.

8.     Full Time Required. If the worker must devote substantially full time to the company’s business, control is indicated.

9.     Work Performed on Employer’s Premises. If the work is performed on the company’s premises, the company is considered to have control over the worker, especially if the work could be done elsewhere. Control is also indicated when the company has the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.

10.   Order or Sequence Set. If a worker must perform services in the order or sequence as determined by the company, the worker is generally subject to an employer’s control. However, if the worker chooses his or her own method for completing a job, a lack of control exists.

11.   Oral or Written Reports. A requirement that a worker submit regular or written reports is an indicator of control.

12.   Payment by Hour, Week, Month. Hourly, weekly or monthly payments generally point to an employment relationship. On the other hand, payments based on a contract or for completing a particular job or task will generally indicate an independent contractor relationship.

13.   Payment of Business and/or Traveling Expenses. If the company ordinarily pays the worker’s business and traveling expenses, the worker is ordinarily an employee.

14.   Furnishing of Tools and Materials. If the company furnishes significant tools, materials and other equipment, an employment relationship is indicated.

15.   Significant Investment. If the worker does not invest in his or her own facilities, control is indicated because the worker depends on the company for such facilities.

16.   Realization of Profit or Loss. A worker who cannot realize a profit beyond an ordinary salary or suffer a loss is generally considered to be an employee.

17.   Working for More Than One Firm at a Time. If the worker cannot perform services for more than one company at a time, the company generally controls the worker. However, a lack of control is indicated when the worker is able to perform services for multiple companies at the same time.

18.   Making Service Available to General Public. If a worker is not free to advertise his or her services to the general public on a regular basis, control is indicated. Workers who advertise their services are generally considered independent contractors.

19.   Right to Discharge. The right of the company to discharge a worker without breaching a contract indicates an employment relationship as control is exercised through the threat of dismissal.

20.   Right to Terminate. If, at any time without incurring liability, the worker has the right to end his or her relationship with the company, an employment relationship is indicated.

         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.

        Then, sometime later (I would suggest 30 days) the party without the burden of proof on an issue must respond to the expert proof offered by the opponent by disclosing any expert he, she or it wishes to disclose on the issue. This disclosure may well include a supplemental disclosure of an expert disclosed in the initial round of disclosures.

        So what happens in a car wreck case when the defendant pleads the comparative fault of the plaintiff? To the extent that they both have accident deconstructionists, both would have to disclose at the same time.   Why is that fair?   Because both have the burden of proof – the plaintiff on her claim and the defendant on her affirmative defense. Plaintiff may well determine that no expert is necessary, and thus the defendant should be required to disclose her expert first.   If plaintiff decided to get an expert after seeing defendant’s disclosure the second deadline would have to be met by plaintiff.  To the extent they each disclose an expert and the one party’s disclosure gives rise to a new issue not addressed in the opponent’s disclosure, the disclosure should be supplemented no later than the date for “rebuttal experts” stated in the scheduling order.

       As indicated above, I think this is an eminently fair way to handle expert witness disclosures. It permits each party without the burden of proof on an issue to see the expert witness disclosures of the opponent before preparing his, her or its own disclosures.   It does not force a party without the burden of proof to disclose experts without a clear understanding of the opponent’s expert proof. To the extent there are simultaneous disclosures of experts on the same issue, the responses can be supplemented to prevent surprise.

       I encourage all lawyers to use this language (or something substantially similar) in all scheduling orders and to send me a signed copy of the order. I will collect these orders and make them available to anyone who asks for a copy so that these can be used to persuade judges who have not faced the issue before to incorporate this language into scheduling orders.   With a concerted effort, this language will become routine in scheduling orders within five years.

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.
 

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. 

 

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.

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.