Day on Torts

December 17, 2009

Should You Call A Witness a Liar?

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.

December 10, 2009

Debt Collector Blamed in Wrongful Death Lawsuit

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

Dianne McLeod says a debt collector killed her husband Stanley.

According to CNN, Ms. McLeod alleges that " her mortgage company, Green Tree Servicing, for the wrongful death of her husband. McLeod said she thinks he would be alive if not for the stress caused by Green Tree’s debt collectors. She said they sometimes called up to 10 times a day and also called the McLeods’ neighbors." Stanley , a heart patient died of heart failure.

The CNN story does not reveal the cause of action being employed in the Florida litigation. In Tennessee, the Supreme Court has ruled that debt collectors may be liable for damages caused if they engage in intentional infliction of emotional distress, as known as the tort of outrageous conduct. The case applying this tort to debt collectors is Moorhead v. J.C. Penny, Co. 555. S.W. 2d 713 (Tenn. 1977). Whether conduct is "outrageous" and whether the conduct caused an injury or death is very much dependent on the facts.

December 10, 2009

Medical Malpractice Insurance Rates

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

From the American Association for Justice:

State tort reforms have provided a boon to insurance companies, leading to record profits while physician and patient premiums continue to skyrocket.

An analysis of data from the National Association of Insurance Commissioners (NAIC) and company annual statements shows malpractice insurer profits are 24 percent higher in states with caps. In these cap states, insurers took in 3.5 times more in premiums than they paid out in 2008. In contrast, insurers in states without caps took in just over twice what they paid in claims.

December 9, 2009

Alcohol Impaired Drivers Continue to Kill

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

According to NHTSA’s National Center for Statistics and Analysis there were 1035 people killed on Tennessee roads in 2008. Of those fatalities, 327 of them involved at least one driver who had a blood alcohol level of 0.8 or greater.

This is an alcohol-related death rate of .47 people per 100 Million Vehicle Miles Traveled (VMT). The death rate per VMT is down 11.3% from a year earlier.

In 2008, Montana had the highest alcohol-impaired fatality rate in the Nation – 0.84 fatalities per 100 million VMT while Vermont had the lowest rate in the Nation – 0.16 per 100 million VMT.

December 8, 2009

Maine’s Senator Snowe Introduces Legislation To Require Malpractice Victims Go to Expense and Time Delay of Medical Screening Panels Before A Jury Trial

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

Maine requires that a medical screening panel hear a medical malpractice case before it can be heard by a jury. Tennessee had screening panels in the late 1970s and early 1980s, when they were abandoned because all agreed that they were ridiculous.

Now, Senator Snowe wants to require that states adopt screening panels as a condition of receiving Medicaid funding. Here is a copy of the proposed amendment: www.dayontorts.com/uploads/file/Snowe-2948.pdf

How are the panels working in Maine? Well, 37.61% of claims filed in 2005 have yet to be heard by a panel while 69% of claims filed in 2006 are still pending. Maine Chief Justice Saufley has called the two-trial system “a cumbersome process with unpredictable results that cost both the plaintiffs and the defendants money and time in a way that was not intended by the Legislature.”

December 8, 2009

Wal-Mart Wins Suicide Case in Illinois

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

The Seventh Circuit Court of Appeals has affirmed the dismissal of a case against Wal-Mart for selling bullets to a person without requiring her to present an identification card as required by Illinois law. Candice Johnson later used the bullets to commit suicide. Her husband filed suit, alleging that his wife did not have an identification card in her possession and Wal-Mart’s violation of the Illinois statute requiring proof of identification was the proximate cause of her death. He also alleged that she should not have been sold a gun because she had been a mental patient within the previous five years and thus should not have been sold a weapon. The opinion does not say whether Wal-Mart knew of her prior status as a mental patient.

Wal-mart argued that the act of suicide was a superceding cause and thus it was not responsible for the death. It also argued that the violation of Illinois law was not the cause of Ms. Johnson’s death.

The appellate court accepted Wal-Mart’s arguments, saying that under Illinois law suicide is ordinarily an unforeseeable event and thus causation was not present as a matter of law.