Most of us have been there. You are at trial. The jury is in the box. Things have gone poorly. Your client, the plaintiff, was late, and showed up dressed in a pink oxford shirt and saddle shoes. (Your mistake, by the way. You told him to dress like he was going to church.) His wife, who has the disposition of a rattlesnake with a fresh boot print on its back, does not bother to hide her distaste for the proceedings, you or her husband.
The jury consists of twelve stone-faced people who all live or who aspire to live in 37027 (Brentwood), each of whom has the compassion of an investment banker (and, indeed, two of them are). These folks watch Fox News, listen to Rush Limbaugh, and believe that, had the editorial writers of the Wall Street Journal been born a few centuries earlier, they would have been amongst the contributors to the Good Book. They each think that “damn Democrat” is one word and that the only human being lower than your client is you, his pond-scum sucking trial lawyer.
The defendant, the minister for the largest church in the community, happened to run a stop sign on the way to visit a parishioner in a local hospital. His co-defendant is his church, the largest church in the community, the supplier of his 1995 Chevy Corsica and the immediate employer whose interest he was advancing on the day in question (there being substantial difficulty getting service of process on the ultimate Master). The good reverend is a gentle, kind-faced man of God who may well have ousted Charlton Heston for the lead in “The Ten Commandments,” had he not been hospitalized for diphtheria contracted while doing missionary work in Africa at the time of the casting call. His wife, who stands dutifully by his side at every break, looks like Aunt Bea in her church clothes.
Your client’s treating medical professional is a chiropractor who, just last week, was the subject of an expose on the local news for claiming that chiropractic medicine could cause weight loss (10 pounds a week guaranteed!) His video deposition went poorly; the x-rays he represented to be those of your client on direct were, in fact (and much to your surprise) those of a 93-year-old former bricklayer. It turns out that these were your chiropractor’s favorite x-rays, ones he is used in every auto case in which the patient received more that 200 of medically necessary treatments. He had never been caught before. (Another referral source down the toilet).
Not surprisingly, the evidence does not go in well. They have videos of your client (who swears he cannot sit without severe pain) in a strip joint sitting in one wooden chair for over four hours, rising only to relieve himself (twice), yell for another Budweiser and a shooter (ten times), and to sing along when the women do a chorus line routine to “Rocky Top.” His wife left the courtroom before the second verse, and has not returned.
Five people laughed during your closing argument (when you mentioned monetary damages), six people cried during the defendant’s close (including the court reporter), and the judge mentioned the word “credibility” 73 times in the jury instructions.
The jury is out, and your client (who had demanded a trial now!) says “wouldn’t I be better off with a medical doctor as a witness? Isn’t there some way we can get out of here and come back later?” “Of course there is,” you explain. “We can take a nonsuit, get a new doctor, file a new case and have a new trial.” And you think “maybe he will get another lawyer. Or if not, maybe I will get lucky and die before I have to try this case again.”
So, can you take a nonsuit? The Tennessee Supreme Court now tells us “no” with no ifs, ands or buts. The Tennessee Court of Appeals had previously ruled that the trial judge had the discretion to allow a dismissal without prejudice even after the jury had retired, but the Supremes held in Lacy v. Cox, 152 S.W.3rd 480 (Tenn. 2004) that a trial court has no authority to grant a voluntary dismissal without prejudice while the jury is deliberating. The court distinguished our rule from the similar federal rule, and indicated that if would be very difficult to remedy an abuse of discretion by the trial judge if so found on appeal.
So, what do you do? If you want to take a voluntary dismissal, do it before the judge sends the jury off to deliberate. Once they go to work, you’re stuck.
Think about that before you agree to represent your brother-in-law again.