Day on Torts

January 16, 2011

State of Tennessee Litigation Statistics From the AOC Annual Report

The Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Tennessee Judiciary. Over the next few days I will share some data from the Report.

We begin with medical malpractice cases. In the fiscal year ending June 30, 2010, 429 medical malpractice cases were resolved by judgment, settlement or dismissal. Only 324 new cases were filed.

There were only 30 medical malpractice cases actually tried in state court in Tennessee during the fiscal year. The total awards for the patient in those cases were $7,128,800. Unfortunately, the Report does not indicate the number of cases won by the patient or by the health care provider. Historically, that number is about 20% of all trials.

January 14, 2011

First Defamation Case Arising From A Tweet Goes to Trial

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

That tweet might just get you sued. Courtney Love allegedly fired off a negative tweet about a fashion designer, and now the defamation case against Love is going to trial.

Read more about it at this post from the Connecticut Business Litigation Blog.

January 7, 2011

From Max Kennerly: Philosophy Explains How Legal Ethics Turn Lawyers Into Liars

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

This is one of the best articles I have read in a long time, coming from a man who I have cited often but never met: Max Kennerly.

A short sample:

At these pre-trial events [hearings, pretrial conferences, etc.], the only thing stopping a lawyer from looking the judge in the eye and telling him or her an outright lie is that oath the lawyer made to the government years ago.

January 6, 2011

Important Decision on Removal of Tort Cases to Federal Court

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

The U.S. Court of Appeals for the Second Circuit has ruled that the 30-day period for removing a case to federal court does not begin to run until "the plaintiff serves the defendant with a paper that explicitly identified the amount of damages sought."

Moltner sued Starbucks in state court in New York but did not state the amount of damages he sought. Moltner’s lawyer later sent a three million dollar demand letter to Starbucks. Starbucks filed a petition to remove the case to federal court more than 30 days after it received the complaint but less than 30 days after receiving the $3 million demand. The Second Circuit permitted the removal, rejecting the argument that Starbucks should have deduced from reading the complaint that the case sought damages in excess of the jurisdictional amount of the federal courts.

Here is the opinion in Moltner v. Starbucks Coffee Company, No. 09-4943 (2nd Cir. Nov. 2, 2010).

January 5, 2011

Seat Belt Preemption Case Before SCOTUS

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

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.