Day on Torts

October 31, 2011

Herman Cain and Secret Settlements

Herman Cain has been accused of sexual harassment. He denies the allegations.

What about the women who asserted the claims? The ones who allegedly received money from the National Restaurant Association, Mr. Cain’s employer at the time? What do they say?

Apparently, they aren’t saying anything because as a condition of the settlements they were required to sign confidentiality agreements. In other words, they agreed not to discuss the settlement or the allegations as a condition of the settlement.

October 30, 2011

Day on Torts: 2000 Entries

by The Law Offices of John Day, P.C.

Yesterday I posted my 2000th entry on this blog. 2000 posts in 78 months – this blog started in the Spring of 2005.

I celebrated by writing five posts for the coming week.

Thanks for reading.

October 30, 2011

Republicans and Their Never-Ending Efforts To Find Jobs for Our Citizens

by The Law Offices of John Day, P.C.

You have to give the Republican Party credit – they are working hard to create jobs for those who are out of work.

In Tennessee, for example, the right to trial by jury was limited for every Tennessean so that somebody somewhere could get a job.

The right that citizens had to sue those who design and build dangerous roads and bridges was severely limited with the promise of more jobs.

October 29, 2011

Using PowerPoint At Trial? Watch This.

by The Law Offices of John Day, P.C.

PowerPoint is a useful tool at the trial of personal injury and wrongful death cases. However, there is a right way and wrong way to use it.

This video by Don McMillian points out some of the errors one can make in the use of PowerPoint.

Does this video bring home errors you have made with this software? I must plead guilty to several errors described on this video.

October 29, 2011

Day on Torts Nominated for Top 25 Tort Blogs Award

by The Law Offices of John Day, P.C.

Lexis Nexis Top Blog(5) I received this announcement from LexisNexis on Friday the 28th of October::

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. I’m pleased to notify you that your blog is one of the nominated candidates for the LexisNexis Top 25 Tort Blogs of 2011, featured on the Litigation Resource Community.

We are inviting tort law practitioners to comment on our list of nominees. If you’d like to request that readers support your nomination, please ask them to comment on the announcement post on our Litigation Resource Community.

October 28, 2011

Plaintiff’s Attorney in Wrongful Death Case Owed Duty to Minor Beneficiaries

by The Law Offices of John Day, P.C.

The defendant and his law firm was hired to bring a wrongful death action for decendent’s (Anderson’s) estate and to assert loss of consortium action by Anderson’s wife. The case was dismissed, arguably after the experts in the case were thrown out after a Daubert challenge.. Lawyer did not timely appeal the dismissal of the case. Several years later, Anderson’s two children – one still a minor – sued Atty for malpractice. They asserted the statute of limitations for malpractice was tolled by their infancy. Atty resisted discovery and quickly moved for summary judgment, asserting he had no attorney-client relationship with the children.

Notably, Pete had not asserted a claim for damages for the children

The trial judge dismissed the case, saying that did not have privity with Pete, and thus did not enjoy an attorney-client relationship with Pete and lacked standing to sue for professional negligence.

October 28, 2011

Comment on Post on Becoming a Good Lawyer from Associate’s Mind

by The Law Offices of John Day, P.C.

Associate’s Mind is a fine blog that is well worth adding to your RSS feed list. Today’s post, Becoming a Good Lawyer Requires Failure, is an exceptional piece. Do not be mislead by the headline, which I suspect was selected to grab attention (and it does. Readers will be happy to see that the piece makes it very clear that failure should not come at the expense of clients.

Keith Lee, the blog’s author, reminds us that blogging, social media campaigns, etc. do not make one a good lawyer. What does? Here is an excerpt of his post:

Becoming a good lawyer requires failure. It requires screwing up a motion and having to re-draft the entire thing. 3 hours of research down the hole only discover a new case that destroys your argument – then writing off that time from your billing and not charging the client because it’s your fault. It’s mis-communication between lawyer/client/opposing counsel/third-party counsel/doctor/court reporter throwing everyone’s schedule out of whack.

October 26, 2011

Suit Against Horse Owner Must Include Proof of Negligence

by The Law Offices of John Day, P.C.

The Court of Appeals of Mississippi has ruled that a plaintiff injured when her vehicle collided with a horse on a dark roadway must prove that the horse owner was negligent is allowing the horse to be on the road. In other words, the mere fact that the fence did not hold the animal on the owner’s property was not, in an of itself, proof of negligence of the owner.

Defendant landowner proved that he had appropriately fenced in the horses and they had been secure in the fence for over two years. He had no explanation for how or why the horses had knocked down the fence and escaped. The Court of Appeals said his proof entitled him to summary judgment, since plaintiff

did not produce any evidence, such as testimony, exhibits, expert opinions, product warnings, or recognized industry standards, to rebut Hester’s evidence that the field fence was adequate for containing horses under the circumstances. The "[nonmoving] party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict."

October 24, 2011

Discovery of Confidential Settlement Agreements

by The Law Offices of John Day, P.C.

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused by tire failure. They sued the car manufacturer, the tire manufacturer, the car dealer, and Wal-Mart (the tire dealer and installer). Three of the defendants entered separate confidential settlement agreements after a mediation. Wal-Mart did not settle and sought discovery of the confidential settlement agreements. The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.

The Court of Appeals affirmed, saying

October 19, 2011

Do You Need An Appellate Lawyer At Trial?

by The Law Offices of John Day, P.C.

I read a tweet the other day suggesting that a lawyer should have had an appellate lawyer present at trial. I cant remember who wrote the tweet but, if I had to guess, it was an appellate lawyer.

I guess an appellate lawyer will do you some good at trial – if you don’t know the law of preserving issues for appeal. Then again, if you don’t know that law of preserving issues for appeal, you lack knowledge of an important part of trying a case.

The law of preserving issues for appeal is not that complicated. It varies from jurisdiction to jurisdiction, I suppose, but in Tennessee it is pretty easy. For example, on evidence issues, you must make a timely, specific objection on the evidence point and are best served by stating the grounds for your objection. You must insist upon a ruling to the objection. If a judge prohibits you from introducing evidence, you must make an offer of proof out of the presence of the jury. All of this must be on the record.