Articles Posted in Practice Tip

Here is an interesting post from the Virginia Injury Laywer Blog offering an opinion on how to get good settlements in personal injury cases.  Permit me to comment on a couple:

"1. Don’t just dabble in personal-injury cases; the insurance defense lawyer is too good for that, and he will only smile as he runs over you while you are dabbling."

Personal injury trial work is a legal speciality, just like surgery is a medical speciality.  If you take a personal injury case "now and then" when the opportunity presents itself you will almost certainly not get a reasonable value for it.  Stick to what you know.

We all know that Batson v. Kentucky applies in civil cases.  But a new decision released yesterday from the Tennessee Supreme Court – Zakour v. UT Medical Group – actually discusses how judges and lawyers should apply Batson in real life. 

This is the meat of the opinion:

In this case, the trial judge did not explicitly find that the Plaintiff had established a prima facie case of purposeful discrimination. However, we conclude that the trial court did implicitly  make that determination, given the fact that the trial court asked the Defendants to respond to the Plaintiff’s Batson objection. See Woodson, 916 S.W.2d at 905 (“While the procedure used by the  trial judge created difficulties, we must conclude that the trial judge determined that a prima facie case of purposeful discrimination had been established. Otherwise, the court would not have required defendants to explain the challenge.”). The trial court also failed to make a finding of  whether the Plaintiff carried her burden of proving a discriminatory motive by the Defendants. Because the trial court empaneled the jury and allowed the trial to proceed after the Plaintiff’s  objection, we conclude that the trial court found the Defendants had provided a gender-neutral  reason for their challenges. However, we stress again the importance of the trial court making  detailed findings for the record; doing so would have clarified the basis for the trial court’s implicit rulings in this case and simplified the review process on appeal.

The Nebraska Supreme Court has held that a husband of a personal injury claimant who did not sign a release of his claim could maintain an action for loss of consortium arising from the injury even though his wife released her claim.

The Court said that the claim for loss of consortium was an independent claim and that there was no evidence that the release executed by the claimant released his claim for loss of consortium or gave his wife authority to release his claim.

The case is Simms v. Vicorp Restaurants, 272 Neb. 744 (2006).  The link to the opinion itself does not work this morning (the Court’s website must be down) but here is a link to a summary of the opinion which has a link to full opinion.

Scientific papers are often difficult to understand.  The fact that they are often poorly written doesn’t help matters, but many of us lack the scientific background to quickly grasp and analyze scientific literature.

Here is an excerpt from an article published in the British Medical Journal that provides some help reading research papers.  Titled "How to read a paper: Assessing the methodological quality of published papers," the article by Trisha Greenhalgh walks the reader through a proper method of determining whether the reader should change his or her practices based on reading a paper.

The key questions: 

Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue.

In Cangelosi v. Capasso, No. 03–L–392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation.  She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition,  the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff’s care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. "

The court ordered production of the notes, saying that they were not protected by the attorney – client privilege because they were not a communication to an attorney for purposes of securing legal advice.  Nor were they protected by the work product doctrine, because " they do not ‘contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.’"

The “smoking gun” document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).

Here is an article by Leslie O’Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.

The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.

Here is a tip that will improve the quality of your law practice and your life – look at the law first.

Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes – Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

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