Articles Posted in Tort Law Tidbits

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.] 

 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).

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."

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?

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."

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."

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).

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.]