The Florida Supreme Court has held that a person may not file a spoliation of evidence lawsuit against an adversary who has lost evidence concerning his or her personal injury claim. However, the trial court may give an adverse inference instruction on the point. Read the opinion here.
This decision is consistent with the law of most jurisdictions.
Thanks to Abstract Appeal for advising us about this decision.
The only thing more frustrating than a lawyer who lies in memos and briefs is a judge who refuse to call down the lawyer that did it. Part of the judge’s job is to rein in people who knowingly misquote cases or misquote the evidence in cases.
I am not talking about lawyers who make an argument based on decision that could be distinguished by the dimmest dimwit in the Bar. That is poor lawyering, but it is not dishonest. And there is nothing wrong with taking the strongest view of the facts supported by the record, particularly if you are entitled to take that position under the case law.
I am talking about people who routinely insert material into memoranda of law and briefs that is not true. That will stop if judges are willing to call the offending lawyer down on it.
Former Alabama football coach Mike Price is suing Time, Inc. for defamation because of a Sports Illustrated article that stated that he engaged in sexual conduct with several women in a hotel in Florida. Price was fired from his job.
There is a fascinating article on the front page of today’s WSJ about this case. Click here to read the article (registration required). My friend Steve Heninger from Birmingham represents Coach Price; he could not have a better lawyer.
Listen to Mel Gibson, Michael Douglas, and others read the Declaration of Independence for our listening pleasure.
Thanks to Dennis Kennedy for bringing this to my attention.
What did the President know above Karl Rove’s role in the outing of Valerie Plame and when did he know it?
Rove was suspected early on but did not admit that he was a source. Instead, Rove played cute. Reuters says that “Rove has carefully chosen his words when questioned about the leak. ‘I didn’t know her name. I didn’t leak her name,’ he told CNN last year when asked if he had had anything to do with it.”
But Reuters reports that “the Newsweek article said an e-mail Cooper sent his bureau chief after briefly talking with Rove stated that ‘it was, KR said, Wilson’s wife, who apparently works at the agency on wmd (weapons of mass destruction) issues who authorized the trip.'” OK, I understand now, he didn’t link her name, he only leaked that the wife of Joe Wilson worked for the agency. I am sure that he thought Joe Wilson had dozens of wives and that our enemies would never be able to identify which one worked for the CIA.
Yes, there is a board certification for lawyers. For civil trial lawyers, the only national certification program is one offered by the National Board of Trial Advocacy. See the NBTA website here.
I am honored to be the Immediate Past President of NBTA and have served on the Board for many years. It is a fine organization, committed to helping consumers find a competent, ethical lawyer.
Read the standards for certification of a civil trial lawyer here.
I mentioned this several months ago but here I go again.
Former Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I have started offered CLE programs in the Fall. We have expanded the program to allow you to earn all 15 hours of CLE in two days, including your 3 E & P hours. If you wish, you can attend just one day. In addition, we are having a 3 hour E & P program only in several cities around the state. Click here for the dates and the cities.
We had a great turnout last year and hope for an even better turnout this year. In addition to an unpdate on the law of torts and comparative fault I will be giving an extended lecture on the law of depositions. When you leave the seminar you will know what there is to know about law in Tennessee concerning taking depositions and use of them at trial.
Here is a nice article that defends the current tort system. It concisely articulates what many us believe in but have difficulty putting into words.
Here is an excerpt:
The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.
I can understand that some people don’t like lawsuits. Come to think about it, only a dang fool likes lawsuits. Litigation is stressful and expensive. Anyone who files lawsuits for fun is in need of medication, counseling, electric shock therapy, or an appropriate combination of the above.
Then, there are people who file lawsuits but don’t think other people should file lawsuits. These people are called HYPOCRITES. Here is an article that identifies some of the hypocrites.
My favorite hypocrite is Sen. Rick Santorum (R-PA). He is all in favor of limiting the rights of victims of medical malpractice. He had a different view when he testified on behalf of his wife, a plaintiff in a medical malpractice lawsuit.
This decision may give some of you peace of mind and cause others of you concern. An appellate court in Massachusetts has ruled that sexual partners do not owe a duty of care to avoid negligently injuring one another.
Apparently the evidence, taken in the light most favorable to the plaintiff, demonstrated that the female defendant’s sudden and unexpected change in position resulted in a fracture to her partner’s penis.
Noting that “[t]here are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior” the Court held that no duty of care existed and affirmed the dismissal of the case. The Court did say, however, “it is appropriate that [sexual partners] be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.”
Day on Torts