Here are the first few paragraphs of an article that I wrote for the November 2009 edition of the Tennessee Bar Journal titled "Party Planning for Tort Lawyers." Rest the rest of the article (and the footnotes) here.
Litigation in a world of comparative fault and several liability involves party planning. Planning a party is hard work. One essential component of the party planning process is determining who to invite, and party planning by committee presents a whole new set of challenges. Everyone agrees that some people must be at the party. Everyone agrees that certain people should not be there. And, while everyone agrees that the party should occur on the selected date, there is often a disagreement about whether certain people should be extended a party invitation.In tort litigation, the original host of the party is the plaintiff, and the plaintiff frequently has a good idea of who should be invited to the party. Competent plaintiff’s lawyers also want the party to occur as soon as reasonably possible.The guests at the party are known as defendants, and they have the right to open the door to (but not admit) other invitees. How? By alleging in an answer or amended answer the fault of a person who has not yet received an invitation to the party. A new decision authored by Judge Holly Kirby of the Western Section of our Court of Appeals makes it clear that Rule 8.03 of the Tennessee Rules of Civil Procedure means what it says and that such allegations must set forth with particularity the facts supporting the allegation of fault of the non-party. A defendant who does not make an allegation with the specificity required by Rule 8.03 faces a motion to strike the defense or a potential loss of the defense.A plaintiff who reads the answer or amended answer and sees a defendant’s suggestion that a party invitation be extended to a non-party does not have to extend the invitation. Plaintiff may determine that he does not want the non-party at the party. If no invitation is extended by the filing of a new complaint and summons, plaintiff knows that the other guests will say all sorts of nasty things about the absent guest, and assumes the risk that a jury will find the uninvited guest at fault. If several liability is applicable, that plaintiff’s damages will be reduced by the uninvited guest’s percentage of fault.