Day on Torts

September 10, 2009

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

September 9, 2009

Death of a Giant of the Tennessee Trial Bar

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

Nashville trial lawyer John T. Conners, Jr. died yesterday in his home in West Meade. He would have turned 90 in March 2010. He was a name-partner at Boult Cummings Conners & Berry in Nashville and practiced law over 50 years..

To say that John Conners was an excellent lawyer is an understatement. He was a living legend in the Bar at the time I was admitted in 1981 and joined his firm. He remains a legend to this day.

I believe the key to Mr. Conners’ success in the courtroom was his preparation. He left no stone unturned. He did not sit in his office and practice law – he investigated his own cases and was unafraid to get his shoes dirty. He prepared hours and hours for every deposition. He would write out his opening statements and closing arguments three, four, or five times, revising and improving it each time. And then he would deliver it – from memory – flawlessly. His directs and crosses were done the same way – revision after revision after revision – and then conducted from memory. He dominated the courtroom.

September 8, 2009

Jury Selection – Exercising Preemptory Challenges

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

A couple years ago I wrote this post about how to exercise preemptory challenges. Last week, I got a call from a lawyer on this issue once again, and thought I should re-run it.

It is always a good idea to ask the trial judge at the pretrial conference or on the morning of trial how he or she handles peremptory challenges. But recall that Rule 47 of Tennessee Rules of Civil Procedure was amended in 2003 to address these issues.

Here is the entire text of Rule 47:

September 5, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 22

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

This is the last of 22 posts in our series of the new laws of interest to tort lawyers. If you missed any of these posts all of them are collected in the "Legislation 2009" category.

The last post concerns the changes to the rules of civil procedure, evidence, and appellate procedure, as well as a host of changes to the rules dealing with electronic evidence. I have authored a previous post on this subject, but wanted to round out the series with one more link to these new rules. Here they are

Rules of Appellate Procedure

September 4, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 21

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

Post 21 of this series re-designates the current language of existing T.C.A. Section 70-7-104 (the Recreational Use Statute) as subsection (a) and then adds a subsection (b). Thus, as of July 1, the new statute reads as follows:

(a) This part does not limit the liability that otherwise exists for:

(1) Gross negligence, willful or wanton conduct that results in a failure to guard or warn against a dangerous condition, use, structure or activity; or

September 3, 2009

Health Care Reform Everyone Can Support – The Use of Medical Checklists

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

A reader sent me an article in September – October 2009 issue of Harvard Magazine that discusses the work of Dr. Atul Gawande. Dr. Gawande is very interested in patient safety. One of his interests is the use of medical checklists, a subject I have addressed in a previous post.

Apparently, Gawande and his colleagues developed a checklist for surgery patients. The list, described in the article as addressing "rudimentary tasks" (e.g. confirming the patient’s identity), had some amazing results. In one year of use in 8 different hospitals around the world, the rate of complications had dropped one-third; surgicial-site infections by half, and deaths of surgical patients by nearly half.

Seven countries and more than two dozen states require the use of surgical checklists. One wonders why every state in the Union does not require them.

September 2, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 20

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

Post 20 (we are almost finished with this series folks, I promise) concerns judicial selection and evaluation. So much has been written about this subject the last four years. The bill is 16 pages in lengh and cannot be summarized here. If you are truly interest in reading this legislation, click on the link to read Public Chapter 517.

September 1, 2009

Judicial Performance Evaluation Commission Members Announced

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

Last week I filed a post on the new members of the Judicial Selection Commission. Today, the appointees to the Judicial Performance Evaluation Commission were announced.

The Judicial Performance Evaluation Commission, which replaces the Judicial Evaluation Commission, evaluates the performance of the appellate level judges who are up for re-election. Prior to the election, the commission will complete a thorough review of each judge’s performance and make a recommendation to either retain or replace each judge. These recommendations are placed in newspapers throughout the state to inform voters prior to the election.

The appointees:

August 31, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 19

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

Post 19 addresses the liability of "agritourism professionals." What, in heaven’s name, is a agritourism professional? A person involved in agritourism, of course. And what is that? Agritourism is

any activity carried out on a farm or ranch, eligible for greenbelt classification under Title 67, Chapter 5, Part 10, that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, or harvest-your-own activities, or natural activities and attractions. An activity is an agritourism activity whether or not a participant provides compensation in money or other valuable compensation to participate in the activity. Agritourism activity includes an activity involving any animal
exhibition at an agricultural fair, regardless of the location of the fair.

Here is a brief description of what the bill does:

August 31, 2009

September 2009 Tennessee Trial Law Report is in the Mail

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

The September 2009 edition of the Tennessee Trial Law Report is in the mail.

The lazy days of summer are upon us – this edition includes a summary of just 10 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between July 15 and August 15, 2009. (This is about 1/2 of the normal volume of decisions released in a given month.) The newsletter totals 34 pages, including 16 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article is “Opening Statements and Closing Arguments;” and (b) a summary of the status of 12 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.