A juror faints during a lawyer’s opening statement. Lawyer happens to be discussing how a traffic accident left Gary Pettet with rotting flesh and bone after 12 surgeries. Ultimately, the damaged leg was amputated.
Defense counsel blamed the heat in the courtroom.
I know the Plaintiff’s lawyer, and I guarantee there was heat in the courtroom.
Evan Shaeffer wrote a book called Deposition Practice Tips. Certain excerpts from the book appear here.
I want to focus on Section 1.111, which Evan titled "Can You Wing It At A Deposition?"
Here, in bold print, is his work:
I serve on the Standards Committee of the National Board of Trial Advocacy, a division of the National Board of Legal Specialty Certification. Our members have a duty to report legal malpractice claims that have been filed against them, so from time to time I see claims filed by liability insurance companies against defense counsel that the companies hired to defend insureds.
So, when I saw this article in the Spring 2011 edition of the Federation of Defense and Insurance Counsel Quarterly, I thought it deserved to be seen by a broader audience.
The article explains that
Gregory Joseph’sComplex Litigation Blog brought my attention to this important decision. Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) is a § 1983 action against a police officer but addresses a situation that plaintiff’s lawyers address everyday when a potential client shows up with a bunch of friends and family members. Here is Gregory’s post:
Defendants argue that Plaintiff waived the attorney-client privilege because she consulted with Murphy in the presence of third parties, i.e. her parents and Gorbey [a neighbor and employee of defense counsel who referred the plaintiff to her lawyer]. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)) ("voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege").
The Court finds that Plaintiff did not waive the privilege as to discussions where Donna Gorbey and Plaintiff’s parents were present. In Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the First Circuit held that the presence of a client’s father at the meeting with his attorney did not waive the attorney-client privilege where the client intended that his communications with the attorney were confidential. Id. at 849. Furthermore, "[t]he presence of a third party will not vitiate the attorney-client privilege if the third party is the attorney’s or client’s agent or possesses a commonality of interest with the client." In re Grand Jury Investigation, 918 F.2d 374, 386 n.19 (3d Cir. 1990) (citing 8 Wigmore at § 2311); see also Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984) (Huyett, J.) ("[T]he privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.").
The recent decision of the Tennessee Court of Appeals in Joshua Cooper, et al. v. Logistics Insight Corp., et al., No. CV (Tenn Ct. App. May 16, 2011) potentially upsets the apple cart for workers’ compensation liens on third-party tort recoveries. The prevailing view for a decade has been that the employer gets no lien or credit for future medical expenses. That isn’t entirely clear any more after this one.
Employee filed suit against Defendants, and Employer who paid Employee’s workers’ compensation benefits intervened. Employee settled with Defendants and filed a notice and order of voluntary dismissal. Employer moved to set the case for trial, contending Employer was not part of the settlement and was actively engaged in obtaining expert medical proof as to Employee’s future medical expenses. The trial court set the case for trial, but then granted Defendants’ motion to dismiss Employer’s suit for failure to state a claim upon which relief could be granted under Tenn. R. Civ. P. 12.02(6). Employer appealed.
On appeal, Defendants contended that Employer was not entitled to a credit on Employee’s recovery “for medical expenses that have not been incurred and are speculative.” The Court of Appeals looked to the workers’ compensation lien statute at Tenn. Code Ann. § 50-6-112(c)(1) and (2):
Here is a fascinating article about a handwriting expert from Houston that assists lawyers in jury selection. The expert is Alice Weiser, author of Judge the Jury: Experience the Power of Reading People.
An excerpt: "Weiser said that people who make little circle dots above the letter "i" are individual and unique, but in a quiet way. People who write larger than the lines and outside the borders strive to live by their own rules. A letter "g" that looks like a number "8" means one is inclined toward the literary, either as an avid reader or an author wannabe."
Health care providers and their insurance companies have managed to persuade all too many Americans that holding providers responsible for malpractice is a bad thing. They also claim that the number medical malpractice claims and payments are increasing.
I simply cannot respond to the first contention. The idea of holding people and corporations responsible for their actions does not seem to be a bad thing.
I can respond to the second point and, unlike the health care industry I will use facts.
Facebook – a leading source for informal discovery in personal injury and wrongful death litigation.
Now, the ABA Journal reports that a $10+million verdict is threatened because of a Facebook issue.
The defendant in the case has alleged that plaintiff’s counsel instructed a plaintiff to delete information from a Facebook account and then denied that the account existed at the time of the death.
The Tennessee Supreme Court has ruled that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) do not apply to cases filed in Tennessee state courts. The extremely well-written opinion marshals the arguments against the application of the federal standard in state court proceedings and will be of benefit to lawyers around the nation who attempt to keep the federal standard out of state courts.
In Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV (Tenn. July 21, 2011), plaintiff filed a retaliatory discharge case against a Nashville not-for -profit organization. Defendant filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Habitat and amici curiae Tennessee Defense Lawyers Association and The Center for Individual Freedom asked the court to adopt the Twombly/Iqbal standard, which “retired” the notice pleading regime recognized in Conley v. Gibson, 355 U.S. 41 (1957), and followed for fifty years, in favor of a new “plausibility” standard.
Plaintiff argued that Tennessee should preserve its historic standard, which provides that a Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). Plaintiff asked the Court to re-affirm Tennessee law which provided that "a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested . . . by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004).
Are you more likely to get hurt in the hospital in July? This article from the New York Times says "yes," if you are in a teaching hospital.
The Times article references to a paper published earlier this month in Annals of Internal Medicine,. The paper examines previous studies of the "July effect," and while the analysis found inconsistencies among nearly 40 studies examined, the data produced by the largest and best-designed ones indicated that patient death rates in teaching hospitals increase by 8 percent in July. Those studies also reported longer hospital stays, more drawn-out procedures and higher hospital charges in July, when 20 to 30 percent of the more experienced doctors-in-training leave and a class of newly minted doctors starts working at teaching hospitals.
Those of us who do medical negligence work know that this article makes sense. The massive shift of medical students and residents in our teaching hospitals every July 1 is bound to lead to errors.
