If You Tell The Judge You Want To Go Home, Don’t Be Upset When He Lets you (And You Lose)

This case is a good illustration of a couple of points: (1) proceeding pro se is in a Tennessee personal injury case is dangerous business, and (2) judges at both the trial court and appellate level can be very patient folks.  

Plaintiff Jennifer Al-Athari was involved in a motor vehicle accident with a tractor-trailer driven by Mr. Gamboa who was an employee of Morgan Southern.  Mrs. Al-Athari and her husband filed suit against Mr. Gambo and Morgan Southern  After burning through two attorneys, the plaintiffs elected to proceed pro se.  Thereafter, things went awry. 

Judge Brothers entered a scheduling order which specified dates for medical proof.   Plaintiff failed to produce any medical proof, so Morgan Southern moved in limine to exclude any medical evidence at trial.  Plaintiffs did not appear at the hearing and the trial court granted the motion. In addition, shortly before the trial, Morgan Southern moved in limine to exclude settlement offers, liability insurance and any reference to Mr. Gamboa’s legal status in the United States or the process by which he was hired by Morgan Southern.  All of these motions in limine were also granted. 

One week prior to trial, the plaintiffs moved to continue the trial as Mrs. Al-Athari had not concluded her medical treatment.  The court denied this motion. On the day of trial, after some questions about their right to remain silent, plaintiffs appeared but told Judge Brothers they were not prepared to go forward and just wanted to go home.  Judge Brothers obliged and involuntarily dismissed the case without prejudice and explained to the plaintiffs that they had the right to re-file within one year.   Thereafter, plaintiffs filed a motion for reconsideration, a motion for new trial and a motion for judgment on the pleadings; all of which were denied.  Plaintiffs’ appeal followed. 

On appeal, the plaintiffs failed to articulate with specificity the alleged error, so the Court of Appeals reviewed each order of the trial court.  Below is a bullet-point summary:

1.    Motion in limine on medical proof – no error as deadline had been set by scheduling order pursuant to Rule 16.

2.    Motion in limine on insurance – no error as Tennessee Rule of Evidence 411 bars admission of insurance to prove negligence or other wrongful conduct.

3.    Motion in limine on settlement offer – no error as excluded by Tennessee Rule of Evidence 408 and also covered by Tennessee Rule of Civil Procedure 68 which prohibits evidence regarding offers of judgment.

4.    Motion in limine re: Mr. Gamboa – no error since plaintiffs had not pled a negligent entrustment or negligent hiring claim.

5.    Motion for Continuance – since the medical proof had been excluded, the status of the plaintiff’s medical treatment was no longer relevant.

6.    Dismissal of Complaint – The trial court did not abuse its discretion in dismissing the complaint pursuant to Tennessee Rule of Civil Procedure 41.02 as the plaintiffs expressly stated they were not prepared to go forward. 

Judge Brothers and Judge Cottrell are to be commended for their patience and for the extraordinary leeway they extended in this case.    

To those of you who want to represent yourself – please read this opinion and understand the perils of doing so.  The judges are quite lenient with people who attempt to proceed without a lawyer, but the rules of court exist for a reason and sooner or later judges will enforce them even against unrepresented party.

True, these folks had two lawyers and for whatever reason those lawyers were no longer involved in the case.  I have no idea whether that happened because of the quality of the case, the conduct of the plaintiffs, or the quality of the lawyers they hired.  I do suggest this, however:  hire an experienced lawyer, cooperate with that lawyer, and accept that lawyer’s advice.  Put your time into finding the right lawyer and, if you do, you will be able to rest assured that you are getting good advice.  

Click on the link on our consumer website to learn what to look for when you want to hire a Tennessee personal injury or wrongful death lawyer.

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