Day on Torts

September 24, 2010

Per Diem Arguments

Justice William C. Koch referenced an article by Joseph H. King, Jr. about per diem arguments in his concurring opinion in Elliott v. Cobb, W2009-00961-SC-S09-CV (Sept. 23, 2010). Elliott recognized that lawyers in medical malpractice cases tried in Tennessee have a right to argue the monetary value of the case but cannot argue the amount sued for in the ad damnum. Here is the majority opinion by Justice Sharon Lee. Justice Koch’s concurrence made it clear that the Court was not addressing the issue of the appropriateness of per diem arguments.

Professor King’s article is copywright protected so I cannot share it with you. You can order the entire article on Westlaw or through the University of Tennessee Law Review. The title of the article is "Counting Angels and Weighing Anchors: Per Diem Arguments For Noneconomic Personal Injury Tort Damages." It can be found at 71 Tenn. L. Rev. 1 (Fall 2003).

You can get a feel about the article from this language quoted from the article’s Conclusion: "More fundamentally, per diem anchoring exacerbates the ill-defined nature of damages for pain and suffering. In so doing, per diem anchoring undermines the central goals of tort law."

September 23, 2010

Rita’s Rules for Email (With Comments and Additions by John)

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

More and more of the communications between lawyers are conducted by email. For the most part, I approve of the change and, indeed, I proposed and served as the principle author of the new rule of civil procedure that allows for the service of papers in state court via email. T.R.C.P. Rule 5.02(2). I rarely see the need for letters between lawyers anymore, and use letters only to communicate on very substantial matters (settlement demands, inadequate discovery response letters, policy limit demands, etc.). Even then I tend to have the letter attached to an email for immediate delivery.

That being said, communicating by email presents a host of problems. Therefore, I was happy to see this post by Rita Gunther Mcgrath that offered up "Rita’s Rules for Email." Here they are (in bold), with my comments and additions:

1. Meaningful subject lines that tell the reader what to expect. Don’t say “Thursday’s meeting” as your subject. Say “followup expected by client from Thursday’s meeting.” (My case management program inserts the case name in the subject line. To help find the emails later in my CMP, I put the subject of the email in the first line of the email and start the text two lines below it. Given the layout of my CMP email screen, I can see the first twenty or thirty letters of each email and enhance my ability to find the email when I need it.)

September 21, 2010

Effective Use of Depositions at Trial

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

Winning Trial Advocacy Tips has an excellent post on how to improve the reading of depositions at trial.

An excerpt:

4. Tab the appropriate pages. Just like on the radio, you want to prevent the courtroom from filling with “dead air.” When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away. Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next. Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

September 16, 2010

Making Adjustments at Trial

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

Trial Lawyer Tips has this great post on the need to be aware of what is happening in the courtroom and changing your game plan as the need arises.

September 14, 2010

Wrongful Death of Children in Foster Care

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

The first law review article on the topic of "Wrongful death of children in foster care" has recently been published in the University of La Verne Law Review, 31(1), 25-44. The article is co-authored by Daniel Pollack, Professor, School of Social Work, Yeshiva University, and a frequent expert witness in child welfare and foster care cases, and Gary L. Popham, Jr., an attorney in Arizona.

The article surveys wrongful death cases filed in various states involving the death of children in foster care. Part I discusses wrongful death claims in general, and Part II discusses foster care. Part III discusses specific cases involving claims of wrongful death filed in various states which arose from the death of a child in foster care. Lastly, Part IV briefly reviews the key aspects of foster care wrongful death cases.

For a copy of "Wrongful death of children in foster care" please contact Professor Pollack at dpollack@yu.edu.

September 11, 2010

Googling Potential Jurors

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

The Internet Cases blog alerted me to this case. Apparently, plaintiffs counsel in a medical malpractice case began using his laptop to "Google" potential jurors to learn background information about them. The Court questioned this effort as follows:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFFS COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

September 10, 2010

Motor Vehicle Injuries and Deaths Decline

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

U.S. Transportation Secretary Ray LaHood released updated 2009 fatality and injury data showing that highway deaths fell to 33,808 for the year, the lowest number since 1950. The record-breaking decline in traffic fatalities occurred even while estimated vehicle miles traveled in 2009 increased by 0.2 percent over 2008 levels.

In addition, 2009 saw the lowest fatality and injury rates ever recorded: 1.13 deaths per 100 million vehicle miles traveled in 2009, compared to 1.26 deaths for 2008.

Fatalities declined in all categories of vehicles including motorcycles, which saw fatalities fall by 850 from 2008, breaking an 11-year cycle of annual increases.

September 9, 2010

Adobe Online Digital Signing Service

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

Adobe has created an Online Digital Signing Service. When the document is digitally signed, no changes may be made to it. The document is also time-date stamped and certified.

Private Investigator Privilege

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

A lawyer called me the other day and asked me if a lawyer’s communications with his or her private investigator are privileged under Tennessee law. The answer is "yes," as provided in T.C.A. § 24-1-209:

Communication between an attorney and a private detective or investigator hired by such attorney, while acting in their respective professional capacities shall be privileged communications.

September 7, 2010

NPR Article: ” Costs of Defensive Medicine May Be Overstated”

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

This article from NPR caught my eye. Rep. Tom Price (R-GA), a physician, said recently on the House Republican website America Speaking Out that the tab runs "an astounding $650 billion each year. That’s 26 percent of all money spent on health care."

As the article notes,

a series of studies published in the current issue of the policy journal Health Affairs suggests that number is not only dramatically too high, but that most of the popular proposals for addressing the medical malpractice problem — particularly capping damages for "pain and suffering" would do little to reduce the practice of defensive medicine.