Day on Torts

December 22, 2009

Writing Appellate Briefs

Jay O’Keeffe has written a nice article about appellate brief writing on DeNovo: A Virginia Appellate Law Blog.

The article is titled " 10 Ways to Ruin a Perfectly Good Brief." Here is an excerpt:

1. Take shortcuts. Here’s how you write a brief: brainstorm, research, brainstorm, outline, draft, revise, cite check. Skipping any of these steps to save time will backfire. If you don’t outline, it will take you twice as long to write, and your brief will likely be poorly structured and repetitive. If you don’t brainstorm, then you may miss a key point. If you don’t cite-check, you will be embarrassed sooner or later. And if you don’t research or revise, then may God have mercy on your soul.

December 22, 2009

Winning Trial Advocacy Tips continues to be a great source of information for those of us who try cases. This post, called "The Proper Use of Notes," does a fine job explaining how – and how not – to use notes at trial.

An excerpt:

When preparing the notes that you’ll bring to court, instead of writing out a word-for-word script, write down only what you need. Rather than full sentences, use brief phrases or single words. Besides, when you’re in the heat of trial, your eyes won’t easily focus on full sentences like “Mrs. Johnson, would you please tell us how you know the defendant?” All you’ll really need is a quick reminder, like “RELATIONSHIP?” or “KNOWS DEFENDANT?” to prompt the correct question.

December 21, 2009

Physicians in the United States Less Likely to Use Health Information Technology

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

According to the 2009 Commonwealth Fund International Health Policy Survey, only 46 percent of U.S. doctors use electronic medical records, compared to 99 percent of doctors in the Netherlands and 97 percent of doctors in New Zealand and Norway.

"We spend far more than any of the other countries in the survey, yet a majority of U.S. primary care doctors say their patients often can’t afford care, and a wide majority of primary care physicians don’t have advanced computer systems to access patient test results, anticipate and avoid medication errors or support care for chronically ill patients," said Commonwealth Fund Senior Vice President Cathy Schoen, lead author of an article appearing in Health Affairs.

The survey also reports that

December 20, 2009

Memphis Lawyer Bites Nose of Hair Stylist in Restroom of Memphis Bar

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

Lawyer Mark Lambert , an attorney with the Cochran Firm in Memphis, has been sued by Greg Herbers, a Memphis hair stylist, over injuries Herbers says he received in an alteration with Lambert in the bathroom of a Memphis bar.

According to the story in the Commercial Appeal, Herbers

entered the restroom around 9 p.m. and noticed the one stall was occupied by two men "performing some activity other than going to the bathroom." Herbers said that when he told the men he needed to use the toilet, Lambert, who was standing at the urinal but appeared to know the men in the stall, became aggressive. Lambert allegedly approached Herbers in a "menacing" fashion and jumped on him, grabbing his head and clawing at his neck. Herbers said the next thing he felt was excruciating pain. He heard teeth crunch and noticed blood pouring from his left nostril.

December 18, 2009

New Federal Rules of Civil Procedure

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

Here is the best summary I have seen that describes the recent changes to the FRCP. The new rules went into effect on December 1, 2009. The summary was written by the folks at Mayer Brown.

Thanks to Dan Hull at What About Clients? for alerting me to it.

December 17, 2009

Should You Call A Witness a Liar?

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

Winning Trial Advocacy Tips has a great post on the subject of whether you should ever call a witness a liar.

An excerpt:

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us. But jurors don’t think like that. Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them. (Yes, they even expect 10x convicted felons to tell the truth.) If you attack a witness’s testimony by calling him a liar, you’re going to need toprove that he lied. If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

December 16, 2009

Court Imposes Sanctions for Failure To Follow Rules Concerning Citation to the Record

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

Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris, Appeal No. 2008AP1647 (Wis. Ct. App. Div. II Dec. 2, 2009) concerning the assertion of the Fifth Amendment in civil litigation. I wanted to bring to your attention a footnote (Footnote 1) that addressed the failure of counsel to follow court rules for writing appellate briefs. Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.

We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.

December 15, 2009

Court Blocks Effort to Withdraw Fifth Amendment Assertion at Civil Trial

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

Defendant asserted his Fifth Amendment privilege against self-incrimination throughout the discovery phase of a civil trial. During the fourth week of trial he attempted to waive the privilege and give substantive testimony.

The Wisconsin Court of Appeals upheld the decision of the trial judge to prohibit the the witness from withdrawing his assertion of the privilege. The Court explained as follows:

Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party’s case develop. It allows the invoking party to conceal information and then tailor the invoker’s own version of the events to meet the opposition’s theory of the case and the evidence garnered in support of it.

December 14, 2009

Settlement Mills

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

A law professor at Stanford, Lora Freeman Engstrom, has written an article published in Georgetown Journal of Legal Ethics called "Run-of-the-Mill Justice." Her bio reveals that her research interest is high-volume personal injury law practices that heavily advertise and mass-produce the resolution of claims and is supported by a grant from the American Bar Association’s Litigation Research Fund.

Here is an abstract of the article:

This Article examines a particular form of heretofore unexamined personal injury law practice that has proliferated across the United States. These law firms, which I call settlement mills, are characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit. Drawing on voluminous documents extracted from federal court and state bar disciplinary files, as well as fifty interviews with current and past law firm employees, the Article demonstrates that settlement mills represent a relatively new, largely distinct, and surprisingly prevalent form of law firm organization. After setting forth the characteristics that distinguish settlement mills from conventional personal injury practices, the Article considers the forces that have contributed to their rise, analyzes how they resolve claims in practice and to what effect, and asks why insurers (not facing a realistic threat of trial) bargain with settlement mills at all. The analysis reveals that settlement mills are not only organized differently than their conventional counterparts; they actually settle claims differently, in a manner that challenges prevailing theories of settlement as well as our basic notions of compensation through tort.

December 11, 2009

Fatal Car and Truck Crashes By Young Drivers

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

NHTSA has released a report concerning fatal crashes by young drivers. The report shows that

Youths 15 to 20 years old represented 9 percent of the U.S. population in 2007 and 6 percent of the licensed drivers; however, 19 percent of the fatalities in the United States in 2007 were related to young-driver crashes.
Approximately two-thirds of the people killed in fatal young-driver crashes are the young drivers themselves or the passengers (of all ages) of the young drivers.
Of the passengers killed riding in vehicles with young drivers, 67 percent are in the same 15-to-20-year-old age group as the drivers.
Fifty-six percent of the fatal crashes and 57 percent of the fatalities involving young drivers occur on rural road-ways.
In 2007, 6,982 young drivers were involved in 6,669 fatal crashes. A total of 7,650 fatalities occurred in those crashes.
The 2007 National Occupant Protection Use Survey (NOPUS) states that overall restraint use has increased slightly from the previous year, to 82 percent. However, belt use among people 16 to 24 was only 77 percent. In 2007, of the 15- to 20-year-old passenger vehicle occupants killed in all fatal crashes, 61 percent (of those whose restraint use was known) were unrestrained. Of the total fatalities in which restraint use was known in 2007, 54 percent of the vehicle occupants killed were unrestrained.
In 2007, 31 percent of young drivers 15 to 20 years old who were killed had blood alcohol concentrations (BACs) of .01 grams/deciliter (g/dL) or greater, and 26 percent of young drivers had BACs of .08 g/dL or greater. These figures are relatively similar to the overall driving population in which 37 percent involved BACs of .01 g/dL or greater and 32 per-cent involved BACs of .08 g/dL or greater in 2007.