Day on Torts

January 5, 2011

Seat Belt Preemption Case Before SCOTUS

Oral arguments were heard two months ago in Williamson v. Mazda Motors of America, and when the United States Supreme Court decides the case we will have a better understanding of the law of preemption.

At issue is whether a National Highway Traffic Safety Administration rule permitting the use of Type1 seat belts (lap belt only) in the middle seat of passenger vehicles preempts a claim by an injured passenger that the manufacturer should have installed a Type 2 belt (includes a shoulder harness) in the vehicle.

The California Court of Appeals held that the claim was preempted. The California Supreme Court refused to hear the case. The US Supreme Court heard oral arguments on the case on November 3.

January 4, 2011

Lawyer Pay

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

Payscale.com has posted data on the pay for lawyers. On average, associates with at least three years of experience earn $75,400 per year. Lawyers with 10-15 years of experience earn an average of $123,000 per year.

Thanks to Lawyers USA for sharing this data.

January 3, 2011

Jury Selection Software for iPad

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

Are you an iPad user? Here is a new app that facilitates jury selection. Here is a video on how to use the app.

Turn to Tablet Legal for more information about how to use the iPad in your practice.

December 29, 2010

Uninsured Motorist Article Published in the TBA Journal

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

The Tennessee Bar Association has graciously permitted me to write a column on tort law for many years. I must admit that I enjoy writing these articles, although I must also admit that each time the calendar reminder pops-up on my computer reminding me of yet another deadline for yet another article a small groan slips out from my aging body.

The January 2011edition of the Journal is now available. My newest article is titled "Presents From ‘Round Back of the Tree." The article alerts readers to two recent Court of Criminal Appeals cases that may be of assistance to tort lawyers as they attempt to prove John Doe UM claims.

Confused? Here are the first three paragraphs (footnotes omitted). Read them and see if you can figure out where the article is headed.

December 29, 2010

Upcoming TBA Speech – January 5, 2011 Noon CST

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

I will be speaking on a Webcast seminar on January 5, 2011 at Noon CST discussing the developments in the law of notice and certificates of good faith in medical malpractice cases. I will also discuss service of process issues after the decision in Hall v. Haynes.

The seminar is sponsored by the Tennessee Bar Association. The price is $45 for TBA members and $65 for non-TBA members. One hour of CLE credit will be earned.

Register here.

December 23, 2010

Food Safety Bill Close to Becoming Law

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

Bill Marler has shared this summary of the new food safety legislation with us. Bill actively worked to get this bill passed.

· S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.

· The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.

December 21, 2010

How to Wrap-Up a Cross-Examination

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

Once again, I feel compelled to share the good work of Elliott Wilcox at Winning Trial Advocacy Tips. Elliott reminds us that we lose the power of an effective cross-examination when we convene with co-counsel and the end of good cross. He offers this tip:

To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

Add Elliott’s blog to your RSS reader.

December 20, 2010

Jurors on the Internet

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

The Internet provides all of us easy access to information, and it is no surprise to anyone that jurors are going there to get data during trials.

This article from MSN reveals that "Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years."

Here is recent post about an effort of the Committee on Court Administration and Case Management of the United States Judicial Conference to develop pattern jury instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases.

December 20, 2010

Federal Judge Rules That Certificate of Good Faith Must Be Filed in FTCA Med Mal Cases

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

Judge Mays of the United States District Court in Memphis has dismissed a medical malpractice case filed against the United States under the Federal Tort Claims Act because the plaintiff did not file a certificate of good faith as required by T.C.A. Sec. 29-26-122.

Judge Mays held that the federal courts should apply Tennessee substantive law on the issue and that the failure to file the certificate required dismissal of the case.

The judge also dismissed the loss of consortium claim brought by the medical malpractice plaintiff’s spouse, saying that her claim was derivative to her husband’s claim and since his claim was rejected for failure to file the certificate the loss of consortium claim was also barred.

December 17, 2010

Office Move

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

After 10 years and almost 3 months in the same location, our firm is moving to a new office. The new address is 5141 Virginia Way, Suite 270, Brentwood, Tennessee 37027. The phone number remains 615.742.4880.

Our landlord needed our space for the expansion needs of another tenant and gave us the opportunity to move to another building it owned several blocks away.

Brandon Bass pointed out last night that he had never been in the same building for even 8 years in his life. (He joined our firm 8 years ago.) That provoked me to think about the subject, and I determined that I had been in these offices for longer than any other home or office except the house I grew up in and left in August of 1974. I am confident that I will find myself turning into the parking lot of our old building from time to time in the coming weeks as I travel back to work on auto-pilot after a hearing or deposition.