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Articles Posted in Managing Your Practice

Where plaintiff alleged that defendant attorney fraudulently charged a higher hourly rate than what was agreed upon, the trial court should have engaged in a three-factor analysis to determine whether the written fee agreement could be used to defeat the fraud claim.

In Vazeen v. Sir, No. M2019-01395-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2021), plaintiff filed a fraud claim against defendant attorney who had represented him for a portion of plaintiff’s previous divorce case. Plaintiff asserted that defendant had engaged in fraudulent billing and that defendant had “charged a higher hourly rate than agreed.” After an initial appeal and remand, the trial court held a bench trial where plaintiff and defendant were the only witnesses. The trial court ultimately ruled for defendant on all claims, and this ruling was affirmed in part and reversed in part on appeal.

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Today we follow up on our previous post about the number of civil trials in Tennessee and we concentrate on the number of trials in Tennessee personal injury, wrongful death and other tort cases. (Health care liability trials are excluded from these numbers.)

In the fiscal year ending June 30, 2020, there were 108 jury trials and 121 non-jury trials in Tennessee tort cases.  Thus, there were a total of 229 such trials.  Plaintiffs “won” 74 of those cases or, in other words, about 37% of the time the plaintiff received a judgment in his or her favor.  (Whether this is truly a victory for the plaintiff depends on whether there was a pre-trial offer and the amount of that offer when compared with the judgment amount.)  The available data does not tell us the percentage of “wins” in jury cases or in non-jury cases but only the total number of judgments entered for the plaintiff in both types of cases.

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The number of trials in Tennessee state court appears to have declined again in 2020.

What follows is the number of jury and non-jury trials in Tennessee state courts for the indicated fiscal years (July 1 – June 30):

Year      Chancery                   Chancery                     Circuit                    Circuit               Total

Tennessee Justice Programs has released it Fall 2020 on-demand video seminar CLE programs.

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley, and I started Justice Programs almost 20 years ago.  The seminar program is designed for civil trial practitioners who are interested in enhancing their legal knowledge as they earn CLE credit.

Historically, our seminar was presented in three live programs in Knoxville, Nashville and Memphis.  This year, COVID-19 has caused us to abandon the normal and film 15 hours of on-demand legal education.  The Tennessee Supreme Court now permits unlimited on-demand programs to fulfill all CLE obligations. Continue reading

The American Bar Association has adopted a paper describing best practices for third-party litigation funding.

The paper does “not take a position on a number of litigation funding issues – for example, whether litigation funding should be permitted, as a matter of law or legal ethics, in any particular jurisdiction or in any particular context; or whether, when and in

how much detail a funding arrangement need be disclosed”   or on underwriting practices of the funder.   Instead, the paper focus on the lawyer / client relationship and ” is written to assist lawyers considering litigation funding – whether to provide legal fees for sophisticated, cross-border arbitration and litigation, to assist an individual plaintiff or claimant in a personal injury lawsuit or worker’s compensation claim, or any other litigation or arbitration context.”

When determining the amount of attorneys’ fees to award in a post-settlement attorney fee dispute, the trial court should have considered the relevant facts and factors contained in Tennessee Rules of Professional Conduct 1.5(a).

In Cordova v. Nashville Ready Mix, Inc., No. M2018-02002-COA-R3-CV (Tenn. Ct. App. May 19, 2020), the issues at play were “post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of post-settlement discretionary costs against the carrier.” In the underlying case, Sergio Lopez had died from injuries he sustained at work. The injuries were caused by a third party (defendant), and Mr. Lopez’s employer’s workers’ compensation insurance carrier had been paying benefits to his wife and children. The wife filed a wrongful death claim against defendant company and its employee, alleging that the employee caused her husband’s death and that the company was vicariously liable.

In the wrongful death action, plaintiffs were initially represented by attorney Gary Hodges, whose fee agreement “entitled him to 33% of the gross recovery obtained through arbitration, settlement conference or trial.” The agreement also provided that if Mr. Hodges was discharged and plaintiff recovered after the discharge, Mr. Hodges would be entitled to “a reasonable attorney’s fee and reimbursement for all costs advanced.” Notably, the agreement did not differentiate between “discharge for good cause and discharge without cause.” After he was hired by the plaintiffs, “Mr. Hodges entered a separate fee-sharing agreement with another solo practitioner, Robert L. Martin.” Plaintiffs never had an agreement with Mr. Martin and were not told about the agreement between Mr. Hodges and Mr. Martin.

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The coronavirus has impacted the service of summons and complaints as many sheriff’s departments make the effort to reduce human contact.  Indeed, the coronavirus is having not only  a short-term impact on the civil justice system but will have a long-term impact as well.  Today we discuss an alternative to service of process by the local sheriff’s department.

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Sometimes companies that do business or cause harm in Tennessee have not registered to do business in Tennessee or have not appointed a registered agent in the state.  If you want to sue them in a civil action (but not a worker’s compensation action), on whom to you serve the summons and complaint?

For “for profit” corporations, the answer is found in Tenn. Code Ann. Sec. 48-15-104 (b) :

Whenever a domestic or foreign corporation authorized to do business in this state fails to appoint or maintain a registered agent in this state, whenever its registered agent cannot be found with reasonable diligence, whenever a foreign corporation shall transact business or conduct affairs in this state without first procuring a certificate of authority to do so from the secretary of state, or whenever the certificate of authority of a foreign corporation shall have been withdrawn or revoked, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served.  (Emphasis added.)

Today we follow up on our previous post about the number of civil trials in Tennessee and we concentrate on the number of trials in Tennessee personal injury, wrongful death and other tort cases. (Health care liability trials are excluded from these numbers.)

In the fiscal year ending June 30, 2019, there were 140 jury trials and 150 non-jury trials in Tennessee tort cases.  Thus, there were a total of 290 such trials.  Plaintiffs “won” 112 of those cases or, in other words, 38.6% of the time the plaintiff received a judgment in his or her favor.  (Whether this is truly a victory for the plaintiff depends on whether there was a pre-trial offer and the amount of that offer when compared with the judgment amount.)  The available data does not tell us the percentage of “wins” in jury cases or in non-jury cases but only the total number of judgments entered for the plaintiff in both types of cases.

Compare that for the prior year (ending June 30, 2018), when there were  130 jury trials and 207 non-jury trials.  Therefore, the total number of tort trials that year was 337.  Therefore, for the first time in recent memory, the number of jury trials actually increased slightly  (130 to 140) while the number of non-jury trials decreased substantially (207 to 150).  In FY 2018 a judgment was entered for the plaintiff in only 98 cases, or 29.1% of all cases tried.

I have been compiling the Tennessee tort reform statutes, and the court decisions interpreting them, for a decade.   I recently released another edition of my book, Compendium on Tort Reform Statutes and Related Case Law, 2008-2019.

The book contain 549 pages of information helpful to tort lawyers.  The best use for the book is this:  when researching an unfamiliar area of Tennessee tort law, go through the Table of Contents and see if a topic listed there is potentially relevant to the issues you are researching.  If so, turn to the relevant pages and to see (a) what new statutes may impact your issue; and (b) what Tennessee decisions have interpreted those statutes.

The book is only $79.00, plus sales taxes, shipping and handling.  You can order it by clicking the link above.

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