Some of you have seen Hot Coffee, the documentary that reveals how corporate interests manipulated the media about the McDonald’s coffee case and the other extra-ordinary steps corporate America is taking to take control of the civil justice system. If you have not seen the movie, I encourage you to…
Day on Torts
Defense Lawyers Call for Changes to the Federal Rules of Civil Procedure
The authors of this article have called for substantial changes in the Federal Rules of Civil Procedure. Included in their proposals is this call for shifting the cost of discovery: In General. A party submitting a request for discovery is required to pay the reasonable costs incurred by the…
The Vanishing Jury Trial
On Saturday, July 9, 2011 I was very fortunate to be asked to speak at the Pound Civil Justice Institute ‘s 2011 Forum for State Appellate Court Judges in New York City. This year’s program concerned the huge reduction in civil jury trials in our state and federal court and the…
No Cause of Action for Spoliation of Evidence in South Carolina
The South Carolina Supreme Court has ruled that there is not cause of action for the negligent spoliation of evidence in that state. In Cole Vision Corp. v. Hobbs, No. 26988 (S.C. 6/20/11) the defendant counterclaimed and sued plaintiff for negligent spoliation of evidence. Defendant maintained that plaintiff lost a…
Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse
The Nevada Supreme Court has affirmed a trial judge order that struck a defendant’s ability to argue liability, limiting it to contesting compensatory damages. In Bahena v. Goodyear, the trial judge struck the defendant’s answer as to liability after it failed to follow prior court orders concerning several discovery…
Ten Ways to Avoid a Legal Malpractice Claim
The Attorney at Work site has a helpful post that reminds us of ten ways to avoid malpractice claims. Here is an excerpt: 4. Document, document, document. It’s not practical to document everything on every matter, but document as much as you can in some contemporaneous manner. Letters are fine, but…
Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury
The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records. In Dudley v. Jefferson Circuit Court, 2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia,…
A Surplus of New Lawyers
It comes of no surprise to lawyers that there are lots of lawyers looking for work. Our office receives resumes from lawyers almost on a daily basis, and many have impressive backgrounds. This article from the June 29, 2011 New York Times describes the state of the employment market for new…
Telephone Triage and Patient Safety
The Doctors Company, a professional liability insurer for physicians, has a "Knowledge Center" on its website that contains lots of useful information. Here is a great example. In "Telephone Safety and Patient Triage," the writer explains that "implementing an effective telephone triage system in the office practice can improve physician-patient…
Assumption of the Risk Cannot Be Used in Defense of an Amusement Park Case
The California Court of Appeals has ruled that an amusement park operator cannot assert primary assumption of risk as a complete defense to a case arsing from an injury at the park. In Nalwar v. Cedar Fair, L.P. H03453 (Cal. Ct. App. 6th Dist. 6/10/11), held "that primary assumption of risk…