Day on Torts

March 9, 2010

CA Court Says Witness Interviews Not Privileged Work Product

The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren’t privileged work product and, therefore, are open to discovery. The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.

The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 ( 5th Dis. Cal. Ct. App. March 4, 2010). Here is the opinion.

Here is a nice statement of the holding taken directly from the opinion:

March 7, 2010

Death of Howard Twiggs, Trial Lawyer

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

Former ATLA President Howard Twiggs has died. Funeral services are today. Howard has been a friend for over 25 years and was a leader in the plaintiff’s trial bar and his community.

I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student. Later, we became re-acquainted at ATLA conventions and meetings around the country. About 12 years ago we had the pleasure of working on a case together, helping a North Carolina family that had a tragic accident on I-40 near Lebanon, TN. Thus, we had time to get to know one another in a long car rides and over dinner in my home, as opposed to simply running into each other at a reception at convention or two.

I say all of that to say this: Howard Twiggs was a very, very fine man and an extremely competent lawyer. He had a love for his fellow man, and felt duty-bound to help them, especially those who were not blessed with his intellect and his health. He loved his adopted state of North Carolina, and had that wonderful accent that always took me back 1978, when I left WI and jumped into life in the South.

March 5, 2010

The Tort Reform Movement – Naked

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

I read Andrew Cohen’s article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.

Here is an excerpt of Philip’s post on his blog, MS Litigation Review:

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

March 4, 2010

Online Accident Reports

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

Getting motor vehicle accident reports is a hassle, but is appears that it will be getting easier.

BuyCrash.com makes accident reports from Georgia, Indiana, and Kentucky available for purchase over the Internet. Accident reports from Tennessee will be available in the future.

Thanks to Chris Simon and the Atlanta Injury Attorney Blog for making me aware of this service.

March 3, 2010

Younger’s 10 Commandments of Cross Examination

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

Some of you are a little young to remember Irving Younger, the great trial advocacy teacher. Professor Younger developed the "10 Commandments of Cross Examination" that were taught in trial advocacy programs across the country for many, many years.

Experienced trial lawyers would take issue with some of Younger’s commandments, arguing that from time to time they should be ignored. I agree, but that does not mean that they do not have value.

Here is a copy for your reading pleasure.

March 2, 2010

Lawyer Speaks Out About Allstate Insurance Company

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

Trey Mills is angry at Allstate. He explains why on his South Carolina Injury Law Journal blog.

March 1, 2010

Tips for Managing Witnesses

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

Winning Trial Advocacy Tips is one of the best blogs for trial lawyers in the entire blogosphere. Elliott Wilcox repeatedly delivers useful, timely information of interest to those of us who try cases. I encourage you to add it to your regular reading list.

Today, I share with you his post of tips to keep your witnesses happy and gain their cooperation. He is, as usual, dead-on. Ignore his advice at your peril.

An excerpt:

February 25, 2010

Patient Rights and Health Care Reform

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

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President should not in this article titled "Why Shouldn’t Obama Throw Injured Patients Under the Bus to Get Heath Reform? Ask Steven Olsen."

Steven Olsen is a malpractice victim from California. Here is a letter written by the jury foreman after he learned that the jury’s damage award was cut because of California’s cap on damages.

February 24, 2010

New Decision on Diversity Jurisdiction

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

What is the principle place of business for a corporation for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1)? Well, what you thought you knew is no longer the law.

The United States Supreme Court ruled yesterday that the phrase

"principal place of business’ is best read asreferring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head-quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corpora-tion holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

February 23, 2010

Secret Settlements Seminar

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

The American Association for Justice is hosting a teleseminar on March 16, 2010 on the ethics of secrets settlements. Get more information here.