Articles Posted in Practice Tip

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.

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.

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). 

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?

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:

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."