Articles Posted in Managing Your Practice

In Wright v. Wright,  No.  M2008-01181-SC-Rll-CV (Tenn. March 29, 2011) the Tennessee Supreme Court  explains how trial courts should determine a “reasonable” attorney’s fee amount when the attorney represents a minor. Trial courts and lawyers should know:

(1) an evidentiary record should be made in support of an attorney’s fee on behalf of a minor;

(2) an affidavit from the attorney seeking a fee, specifying the amount of time and type of work spent on the case, should be provided to the trial court;

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 emails, detailed time entries and marginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes and major client instructions or decisions. Memorialized communications help confirm what was said or done for the client should you need to look back to explain why or what work was done, to justify an account, or to defend on a malpractice claim.

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 in the country.   The writer explains that in Tennessee it is estimated that there will be 389 jobs for lawyers each year from 2010 through 2015.  However, 735 people passed the Tennessee bar exam in 2009.  Thus, if the bar exam completion rate stays the same, Tennessee will have 346 more new lawyers than jobs in each of the coming years.

The Tennessee numbers are pretty close to the national average, which reveals that there will only be legal jobs for one-half of the lawyers passing the bar exam.

Some plaintiff’s lawyers are "givers" and others are "takers."   There are a fair number of givers, lawyers  who step up to the plate time and time again to help advance the cause of civil justice in this state and nation. Some give knowledge, some give time, some give money, and some give all of the above – and each of us is indebted to every single one of them.

On the other hand there are "takers."  These lawyers spend thousands of dollars every month advertising for clients but refuse to give money to support legislative efforts designed to support the rights of those clients. They are lawyers who make a good living representing plaintiffs but refuse to give time or money to support the state or national trial lawyers association. They are lawyers who constantly  talk about their big settlements and their big cases but somehow never have the ability to write a check to help the cause.  They are lawyers who ride around in $60,000 cars but refuse to give a political contribution to a pro-civil justice candidate. They are lawyers who seek the help of the association or its members when they are need, but turn away when asked to help. These men and women thrive off the efforts of others, giving nothing, taking whatever they can, and smiling all the way to the bank.

If you are a "giver," please keep giving. You already know that a rising tide lifts all boats and that our willingness to share advances the cause that we believe in with our heart and soul.   If you are fortunate enough to have earned a good income as a result of your hard work as a plaintiff’s lawyer, you should give serious consideration to support of AAJ through its Leaders Forum program.   Your money will be used to help inform the public about the critical role that trial attorneys play in holding wrongdoers accountable for their actions and thus assist in reframing the debate about the civil justice system.  The contribution is significant, a minimum of $1000 per month, but over 400 of the best lawyers and firms in the country  step up to the plate every month and give extraordinary support to AAJ.  You can sign up here.

The United States District Court for the Middle District of Tennessee has released a new administrative order concerning the use of laptops, cell phones and other electronic devices in the federal courthouses in the Middle District.

The devices have to go through the screening process and cannot be used in courtrooms without permission.  Laptops and electronic calendering devices can be used in the courtroom unless the presiding judge prohibits there use.

One more thing to think about before going to federal court.

From time to time, some lawyer undertakes an effort to educate other lawyers on how to conduct cross-examinations. Francis Wellman did so over 100 years ago in his excellent book, The Art of Cross-Examination. In my generation, Irving Younger’s Ten Commandments of Cross-Examination was treated by law professors as if it was handed down by the Almighty. Now, Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey add to these excellent works with the Cross-Examination Handbook:  Persuasion Strategies and Techniques.

The book begins by quoting the words of Wellman, who aptly explained the challenge of cross-examination with these words:

Cross-examination … requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self control; power to read men’s minds intuitively, to judge their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution and, above all, the instinct to discover the weak points in the witness under examination.

Lawyer A is hired to bring a personal injury case on behalf of an injured person.   With the consent of the injured person, Lawyer A associates Lawyer B.   The contract between A and B includes a fee split arrangement.  Injured person consents to fee split and the contract.   Injured person then fires Lawyer A.  Lawyer B prosecutes case and resolves it.   Lawyer A is not paid any portion of the fee.   Lawyer A sues Lawyer B under a myriad of theories.

he California Court of Appeals, Third District, rules that Lawyer A has no claim against B.   The personal injury client employed and fired Lawyer A and it was her responsibility to pay a fee if it was due under either a breach of contract theory or a quantum meruit theory.  The Court also ruled that the litigation privilege barred Lawyer A’s fraud claims against Lawyer B.

Find the opinion in Olsen v. Harbison, C058943  (Cal. Ct. App. 3rd Dis.  Dec. 28, 2010) here.

As mentioned in the last two posts (here and here), the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary.  The Report Contains statistical data about our court system.

Today we look at additional information about tort cases that were filed or tried in state court in Tennessee.  "Tort cases" includes medical malpractice cases.

Of the 229 cases that were tried that resulted in damage awards for the plaintiff, the total damages awarded were $91,682,216.  This is an increase of a little over $8,000,000 from a year earlier.  The average award, then, was $400,359.

This is one of the best articles I have read in a long time, coming from a man who I have cited often but never met:  Max Kennerly.

A short sample:

At these pre-trial events [hearings, pretrial conferences, etc.], the only thing stopping a lawyer from looking the judge in the eye and telling him or her an outright lie is that oath the lawyer made to the government years ago.