Articles Posted in General Legal News

The Tennessee Supreme Court has adopted several changes to the rules of civil procedure, evidence and appellate procedure.  By orders dated earlier this month, the Court adopted the recommendations of the Rules Commission about the changes that were necessary.

The changes now go to the General Assembly for its review, where they can be passed or defeated but not amended.  Of course, the Court can always withdraw one or more rules if passage of the entire package is threatened by a rule change the Legislature does not like.

Here are the relevant orders.

I am at a meeting of the Members Consultative Group of the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm sponsored by the American Law Institute.  The meeting is being held in Austin, Texas at the University of Texas Law School.  We are discussing "Duty of Land Possessors."

Last night we had dinner at the Mansion at Judge’s Hill and I had the pleasure of sitting with Victor Schwartz, an editor of the torts case book that most of us used in law school and an active tort reformer.  (Indeed, he is General Counsel to the American Tort Reform Association.)  We had a wonderful conversation, agreeing on more things than both of us expected and politely disagreeing on other points.  Victor has a great sense of humor and  a real gift of imitating the voices of many political figures. 

This morning we are debating the duty, if any, of landowner’s and possessors to trespassers and the exceptions to the historic general rule of no liability.  I am enjoying the debate immensely – a lot of thought has been given to the issue by the drafters and the members who are present are raising some excellent points. 

An Arkansas class action case against a nursing home company is getting ugly even in discovery. The trial judge threatened to imprison the defendant company’s officers for refusing to comply with court ordered discovery. Then, the trial judge required them to post a $20 million bond for their failure to comply with the discovery orders. The Arkansas Supreme Court recently affirmed the trial judge’s bond requirement. Read about it over at our Tennessee Business Litigation blog.

The Florida voters passed a constitutional amendment to limit attorneys’ fees in med mal cases to 30% of the first $250K in damages and 10% in any recovery about $250K.

So, a $1M verdict would entitle the patient’s attorney to a total fee of $130K. A $2M verdict would result in a fee of $260K. The result: in other than a slam dunk case where no liability or causation discovery was necessary, a plaintiff’s attorney would be working for $100 per hour or less, an amount less than the paralegal rate in major cities.

Florida plaintiffs’ attorneys then starting giving their potential clients the option of waiving their “constitutional right” to a fee cap.

Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.

The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs’ lawyer the other day, there are only two types of lawyers who make common law – those that are stupid and those who take calculated risks.

Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don’t know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.

Paul Minor, a friend and plaintiff’s lawyer from Mississippi, was indicted on a bunch of charges, including bribery. Oliver Diaz, Jr., a member of the Mississippi Supreme Court whom I got to know during some trips to Mississippi, was also indicted.

The trial has been going on for weeks. Last week, Justice Diaz was found “not guilty” on all counts and Paul was found “not guilty” on several counts and the jury was hung on some others.

Some folks say that Paul and the Justice’s most damning sin was that they were Democrats.

Over at our Tennessee Business Litigation blog, read about an Arkansas state judge’s decision to order sanctions against a nursing home chain in a class action suit. The sanctions arise from failure to produce emails and other electronic documents, and include $25,000 in attorney’s fees and possible jail time.

The tort reform movement, lacking in facts but fueled by greed and ignorance, will not die. It cannot, because there are too many lobbyists and tort reform special interest groups that need for it to be kept alive. The so-called reformers receive hundreds of millions of dollars per year to “keep hope alive” for the business and insurance industries. They can’t just let that money go away.

Here is an article that describes that current state and the direction of the movement.