Day on Torts

September 14, 2009

Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants.

Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action.

September 14, 2009

Products Liability Case Settled

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

A settlement has been reached in Mohr v. Daimler Chrysler Corp., a products liability case which alleged defects in a 2000 Dodge Caravan.

The Court of Appeals affirmed almost $5,000,000 in compensatory damage awards for the death of the driver and front-seat passenger in the case. The court also affirmed a finding of no liability for injuries suffered by two passengers. The court reduced the punitive damage award from almost $49,000,000 to $13,800,000. A Rule 11 Application was pending before the Tennessee Supreme Court.

With interest, the judgment was over $26,000,000.

September 13, 2009

Justice Programs Seminar 2009

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

Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Here are the topics we are offering this year:

September 12, 2009

Iqbal / Twombly: The Death of Notice Pleading

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

If you don’t understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.

This seminar, exclusively for plaintiff’s lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice. Also discussed will be AAJ’s response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.

The teleseminar will be held on Thursday the 17th of September at 1:00 CDT. It will last 90 minutes. Go to the AAJ website to register.

September 11, 2009

Medical Malpractice Reform: Survey Manipulation

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

Max Kennerly has done it again. Read this post on the Litigation and Trial bog which looks behind the allegation that the American people support medical malpractice reform. Before you do, read the following:

DO YOU AGREE OR DISAGREE WITH THIS STATEMENT: As part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably, on behalf of those who are in the right.

Did you say "Yes?" I did.

September 10, 2009

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

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

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