Articles Posted in Miscellaneous

The Tennessee Supreme Court has circulated for public comment changes to the rules of evidence and procedure. 

If adopted by the Court and approved by resolution in the 2012 General Assembly, the proposed rule changes will go into effect July 1, 2012.

A couple changes are of particular interest to tort lawyers.  First, there is a proposal to amend TRCP 12.06 to extend the time to file motions to strike.  Second, changes have been suggested to Rule 45 to put receipents of subpoenas on notice of the 14-day deadline for lodging objections.    Third, several changes  to the rules of appellate procedure have been suggested.

I don’t have a Category titled "You Won’t Believe This Crap" but, if I did, this post would be filed there.

According to the WSJ Law Blog,  New York City lawyer Gregory Berry has sued his former firm for more than $75 million, claiming the firm fired him for exhibiting intelligence and creativity.  The article explains that "a former software engineer and graduate of the University of Pennsylvania Law School, Berry claims in his complaint that he arrived at Kasowitz last fall and “immediately began doing superlative work,” even pointing out alleged inefficiencies in the way the firm was handling certain assignments.

Berry told  the Law Blog: “There is simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to learn that the hard way.” 

A juror faints during a lawyer’s opening statement.  Lawyer happens to be discussing how a traffic accident left Gary Pettet with rotting flesh and bone after 12 surgeries.  Ultimately, the damaged leg was amputated.

Defense counsel blamed the heat in the courtroom.

 I know the Plaintiff’s lawyer, and I guarantee there was heat in the courtroom.

Gregory Joseph’sComplex Litigation Blog brought my attention to  this important decision.  Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) is a § 1983 action against a police officer but addresses a situation that plaintiff’s lawyers address everyday when a potential client shows up with a bunch of friends and family members.  Here is Gregory’s post:

Defendants argue that Plaintiff waived the attorney-client privilege because she consulted with Murphy in the presence of third parties, i.e. her parents and Gorbey [a neighbor and employee of defense counsel who referred the plaintiff to her lawyer]. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)) ("voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege").

The Court finds that Plaintiff did not waive the privilege as to discussions where Donna Gorbey and Plaintiff’s parents were present. In Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the First Circuit held that the presence of a client’s father at the meeting with his attorney did not waive the attorney-client privilege where the client intended that his communications with the attorney were confidential. Id. at 849. Furthermore, "[t]he presence of a third party will not vitiate the attorney-client privilege if the third party is the attorney’s or client’s agent or possesses a commonality of interest with the client." In re Grand Jury Investigation, 918 F.2d 374, 386 n.19 (3d Cir. 1990) (citing 8 Wigmore at § 2311); see also Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984) (Huyett, J.) ("[T]he privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.").

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 watch it.  Quite frankly, it made me more sad than angry.  I have spent over 25 years fighting corporate interests in Tennessee’s legislature and have been angry about what I have observed on a multitude of occasions.  Thus, the sadness arose because all of  the hard work by lots and lots of good people has done little to stem the tide of corporate power.

Money is the mother’s milk of politics, they say, and corporate interests provide money – lots of money.  I believe that things are going to get worse.  On the federal level, corporate contributions will now be permitted in federal elections.  The Republican-controlled General Assembly just agreed to permit corporate money in Tennessee elections, and the Republican Governor signed the legislation that will turn on the flow of corporate cash.  

In Goodyear Dunlap Tires Operations, S.A. v. Brown, No. 1076, 564 U.S. ____  (2011) the United States Supreme Court was confronted with the following question:  "Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?"   The answer:  "No."

Here are the facts as reported by the Court:

A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina gave rise to the litigation we here consider.  Attributing the accident to a defective tire manufactured in Turkey at  the plant of a foreign subsidiary of The Goodyear Tire and Rubber Company (Goodyear USA), the boys’  parents commenced an  action for damages in a North Carolina state court;  they named as defendants Goodyear USA, an Ohio corporation, and three of its subsidiaries, organized and operating,  respectively, in Turkey, France, and Luxembourg.  Goodyear USA, which had plants in North Carolina and regularly engaged in commercial activity there, did not contest the North Carolina court’s jurisdiction over  it; Goodyear USA’s foreign subsidiaries, however, maintained that North Carolina lacked adjudicatory authority over them.  

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 is inapplicable to regulated amusement parks, that it does not apply to cases where the illusion of risk (as opposed to actual risk) is marketed and finally that in this case issues of fact predominate."

As the Court explained, "the very reason we go on amusement park rides is because we ―seek the illusion of danger while being assured of [a ride‘s] actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt.‖  (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1136 (Gomez), emphasis added.)  While some rides may have inherent dangers owning to speed or mechanical complexities, parks which operate for profit hold out their rides as being safe with the expectation that thousands of people, many of them children, will be riding.  (U.S. Fidelity & Guaranty Co. v. Brian (5th Cir.1964) 337 F.2d 881, 883.)"

John Stossel is a Fox News reporter ( I use the word "reporter" lightly, especially in conjunction with Fox News) who dislikes lawsuits and the lawyers who file them.

Except when he finds it necessary to file one.  Like he did when he was bitch-slapped by a wrestler.

Eric Turkewitz does his usual excellent job covering the story about this hypocrite.  Read it here.

I know it is not a tort case, but this post from Law and Disorder reports on what can happen before the Seventh Circuit Court of Appeals when you don’t have your damages proof in proper order.

An excerpt
 

"I have never seen such an incompetent presentation of a damages case," [Judge Richard A.] Posner said. "It’s not only incompetent, it’s grotesque. You’ve got damages jumping around from $11 million to $130 million to $122 million to $33 million. In fact, the damages are probably zero."

Regular readers know that I am a Max Kennerly fan.  He does it again with post titled "The Truth Self of The Plaintiff’s Trial Lawyer." 

An excerpt:

Trial lawyers walk into court with plans, backup plans, and with training and experience in various techniques and methods. Trial, though, has a way of knocking askew the best laid schemes of mice and men; it’s less a choreographed ballet and more a rough mix of strategic adaptation, technical mastery, wit, and endurance.