Articles Posted in Managing Your Practice

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.

The Tennessee Rules of Civil Procedure have been amended to permit pleadings, motions, discovrey and briefs to be served via email.  Here is the new rule:

Here is the text of Rule 5.02(2):

(a)  Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

More and more of the communications between lawyers are conducted by email.  For the most part, I approve of the change and, indeed, I proposed and served as the principle author of the new rule of civil procedure that allows for the service of papers in state court via email. T.R.C.P. Rule 5.02(2).  I rarely see the need for letters between lawyers anymore, and use letters only to communicate on very substantial matters (settlement demands, inadequate discovery response letters, policy limit demands, etc.).  Even then I tend to have the letter attached to an email for immediate delivery.

That being said, communicating by email presents a host of problems.  Therefore, I was happy to see this post by Rita Gunther Mcgrath that offered up "Rita’s Rules for Email."   Here they are (in bold), with my comments and additions:


1.  Meaningful subject lines that tell the reader what to expect.  Don’t say “Thursday’s meeting” as your subject.  Say “followup expected by client from Thursday’s meeting.”   (My case management program inserts the case name in the subject line.  To help find the emails later in my CMP, I put the subject of the email in the first line of the email and start the text two lines below it.  Given the layout of my CMP email screen, I can see the first twenty or thirty letters of each email and enhance my ability to find the email when I need it.)