Day on Torts

October 21, 2009

Rule of the Week – T.R.C.P. Rule 5

Rule 5 of the Tennessee Rules of Civil Procedure addresses the requirements for the filing and service of papers in civil litigation. Generally speaking, "every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties." Service may be by mail hand-delivery, mail or fax.

Earlier this year I proposed a rule change to expressly permit service of papers electronically to counsel of record. Here is the text of the proposed rule:

(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

October 19, 2009

Will Rush Apologize? Will Al Sharpton Sue if Rush Does Not?

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

Rush Limbaugh is a gifted entertainer who has a propensity to say some pretty ridiculous things. That being said, it is pretty hard to be on the radio for three hours per day and not say some ridiculous things, especially when you have to appease an audience that feeds off of ridiculous things.

On Saturday Rush stepped in it again. I am an avid reader of the Wall Street Journal, and the Saturday edition included an op-ed piece under Rush’s by-line complaining that he was kicked out of the group that was attempting to buy the St. Louis Rams. What caused his expulsion? You guessed it – the liberal media and its normal sources, including Al Sharpton. Here is what Rush said about Sharpton:

In 1998 Mr. Sharpton was found guilty of defamation and ordered to pay $65,000 for falsely accusing a New York prosecutor of rape in the 1987 Tawana Brawley case. He also played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews "diamond merchants") and 1995 Freddie’s Fashion Mart riot.

October 19, 2009

Organizing Evidence for the Jury

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

Jim McElhaney is one of the best-known trial advocacy professors in the country and his "McElhaney on Litigation" columns in the ABA Journal are read by hundreds of thousands of lawyers each month.

"Give Chronology a Timeout" is in the October, 2009 edition of the ABA Journal and is a re-print from an article published seven years earlier. Those of you who attend AAJ seminars will find that it promotes what plaintiff’s lawyers call "storytelling."

October 18, 2009

Board Certification in Medical Malpractice

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

A couple of months ago I filed an application with the American Board of Professional Liability Attorneys seeking board certification in medical malpractice cases. I have been board certified as a civil trial specialist for over 15 years. In fact, several years ago I served as President of the National Board of Trial Advocacy, the group that certifies civil trial specialists.

For those of you who want to seek certification, here are the criteria:

Be in good standing with your State Bar;
Provide a writing sample, either trial memorandum or brief;
Pass EBOLA’s written examination in either Legal or Medical Professional Liability;
Have spent at least the last 5 years practicing in Legal or Medical Professional Liability;
In the last 3 years, have dedicated at least 25% of your professional time to Medical Professional Liability;
In the last 3 years, have completed a minimum of 36 hours of continuing legal education (CALE) in Medical Professional Liability, or met the CALE requirements of your State Bar, whichever is greater; and
Provide 6 references: 3 judges and 3 attorneys who practice in Legal or Medical Professional Liability.

I have to confess I was a little nervous about the examination. I haven’t taken a test for over 15 years and had no idea what to expect. I was told it was impossible to study for the test, and that advice was correct. The test was at least 50% medicine and the breadth of the subjects covered made studying impractical if not impossible.. I received a break – one series of questions dealt with a medical subject on a case I tried in 2008.

October 16, 2009

More Tips From Paul Luvera

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

Paul Luvera’s blog, Plaintiff Trial Lawyer Tips, includes a recent post from Paul titled "My General Views About Plaintiff Trial Work." I recommend the entire post to you, but here is a excerpt to wet your appetite for the rest:

Most important, our trials must be focused and limited to this approach. We should not just wing it and start talking because we all talk entirely too much and we are very boring people to jurors and judges. This requires discipline. It means we must abandon the idea that we are charming people the jurors and judges enjoy listening to, or that we need to demonstrate to the witness or the judge or our opponent how intelligent we are, or how well informed we are, or even that we are right. The truth is that it requires a lot of self control to try a big picture case because we don’t care what the witness or our opponent thinks of our intellectual ability, our knowledge of the subject matter, etc., etc. All we care about is the impression on the jury. It is the ability to stop making us the center of attention and instead make the jury the center of attention. In the end, it is our ego that drives us to intellectual battles that hurt our case.

October 14, 2009

Rule of the Week – T.R.C.P. 43.04

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

Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.

Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court. The rule is well-written and self-explanatory.

When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

October 14, 2009

Mistrial and Sanctions Affirmed When Lawyer Violates Order on Motion in Limine

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

Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court’s order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order. The sanction? A mistrial and an award of $112,000 in sanctions.

This is how the Court summarized what occurred that gave rise to an award of sanctions:

Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between Willis [a Roman Catholic priest] and plaintiff’s brother. The trial court granted this motion, stating that "[d]efense questions about this subject are barred as being irrelevant to the case before the court." During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff’s motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff’s brother and Willis had a sexual relationship. The court orally granted plaintiff’s motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination, defendant’s attorney "repeatedly and deliberately violated the court’s pre-trial ruling by asking questions which were designed to tell the jury about this relationship." The court granted plaintiff’s motion for mistrial "because nothing short of a mistrial could have cured the prejudicial effects of defense counsel’s repeated violation of the trial court’s pre-trial ruling."

October 13, 2009

Paul Luvera on Losing Cases

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

Washington State’s outstanding plaintiff’s lawyer offers great advice to those of us who have lost jury trials.

A sample from "First Aid for Lawyers When They Lose Their Case:"

When trial lawyers who are passionate about their client’s cause lose the case, their pain for the loss of their client is palpable. Dealing with losing is always agony and something we never get used to if we are competitive trial lawyers striving for our client’s rights. I’ve often said: losing hurts worse then winning feels good.

October 12, 2009

Fee Approvals When Representing Minors

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

It was almost two years ago that I wrote about Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007). (Post 1) (Post 2) Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff’s lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

The case was remanded so that a reasonable fee could be determined. After discovery and a hearing, the trial judge awarded the plaintiff’s lawyer a fee of $131,000. (The amount of the settlement of wrongful death case was $425,000.) The child’s guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court’s award of the $131,000 fee. The opinion details the extensive work done on the case, and reveals how plaintiff’s counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000. Also important to the outcome: the child was suing her grandmother, and thus a substantial judgment (or any judgment) was certainly in doubt.

October 11, 2009

CBO Offers New Data on Cost of Medical Malpractice Lawsuits

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

Senator Orin Hatch (R-Nevada) asked the Congressional Budget Office to update its previous findings concerning the effect that restrictions on the rights of patients to hold the health care industry responsible for errors that kill or injure patients ("tort reform").

Here are some of the findings from the report:

"National implementation of a package of proposals similar to the preceding list would reduce total national premiums for medical liability insurance by about 10 percent, CBO now estimates. … CBO estimates that the direct costs that providers will incur in 2009 for medical malpractice liability—which consist of malpractice insurance premiums together with settlements, awards, and administrative costs not covered by insurance—will total approximately $35 billion, or about 2 percent of total health care expenditures. Therefore, lowering premiums for medical liability insurance by 10 percent would reduce total national health care expenditures by about 0.2 percent."
"Combining the effects on both mandatory spending and revenues, a tort reform package of the sort described earlier in this letter would reduce federal budget deficits by roughly $54 billion over the next 10 years. That estimate assumes that a change enacted in 2010 would have an impact that increased over time, achieving its full effect after four years, as providers gradually changed their practice patterns. Of course, the estimated effect of any specific legislative proposal would depend on the details of that proposal." Note: the proposals listed in the letter was a $250,000 cap on non-economic losses, abolition of joint and several liability, changes to the collateral source rule, caps on punitive damages, and reducing the statute of limitations to 1 year for adults and 3 years for children.
"Because medical malpractice laws exist to allow patients to sue for damages that result from negligent health care, imposing limits on that right might be expected to have a negative impact on health outcomes. There is less evidence about the effects of tort reform on people’s health, however, than about its effects on health care spending because many studies of malpractice costs do not examine health outcomes. Some recent research has found that tort reform may adversely affect such outcomes, but other studies have concluded otherwise."

Let us put these numbers in perspective. Americans spend over $45 billion per year on pet care.