Day on Torts

August 12, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 8

This is Post 8 in my review of the legislation of interest to tort lawyers that was passed by the General Assembly in 2009. Want to see more? Look at the Legislation 2009 category.

This legislation is of interest to those who bring or defend dram shop cases. The new act modifies TCA Section 57-3-406 and TCA Section 57-5-301. Here is a summary of the bill:

Present law prohibits an alcoholic beverage retailer from selling any alcoholic beverages to any person who is drunk and from selling alcoholic beverages to any person accompanied by a person who is drunk. This bill revises this provision to refer to persons who are "visibly intoxicated" instead of persons who are "drunk."

August 12, 2009

Thank You

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

OrderForm (2)(1) Last week I received a letter informing me that I had been selected for inclusion in the 2010 edition of Best Lawyers in America. I have been fortunate to have been included among this distinguished group of lawyers since 1993.

This year I have been listed in the specialties of Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice Law, Personal Injury Litigation, and Product Liability Litigation.

Best Lawyers surveys lawyers to determine who should be included in the publication. Thus, I fully realize that I would not be included in this book if it were not for the votes I received from my fellow lawyers, many of whom deserve equal or even greater recognition for their service to their clients and to the profession. I also realize that I would not be a part of this publication without the wonderful support I receive from every member of our firm, each of whom works diligently every day to serve our clients.

August 11, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 7

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

Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers. As I have said in the last six posts, you can read about additional changes in the law under the Legislation 2009 category.

Public Chapter 206 changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101 et seq, to specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act.

I believe that this legislation is a result of a case our firm handled against such an organization in East Tennessee earlier this year. We argued that the entity was not covered by the Act (and therefore the damage caps did not apply) because the type of entity was not specifically mentioned in the Act. I predicated at the time we identified the issue that a legislative change would be forthcoming, and this is it.

August 11, 2009

Dead By Mistake

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

The "Dead By Mistake" website, hosted by the San Francisco Chronicle, contains chilling stories of deficiencies in our health care system that result in injury and death. This alone brings the point home: more people die each month from preventable medical errors than died in the terrorist attacks of 9/11.

Quite frankly, this is all old news to lawyers who are involved in medical malpractice litigation. This site will educate those lawyers who do not regularly do this work. It will inform consumers and legislators of the nature and extent of the problem. And, for those of us who do this work everyday, it will remind us of how important it is that we work as hard as we can to hold health care providers responsible for the harm they cause.

August 11, 2009

Tips for Managing Email

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

LIke you, I get a lot of emails every day. All too often, I permit emails to control my work schedule – a big mistake.

Here is a nice article that gives suggestions for managing the mass of emails that enter our lives every day. The writer, Stever Robbins, accurately points out the reason for the problem:

Before e-mail, senders shouldered the burden of mail. Writing, stamping, and mailing a letter was a lot of work. Plus, each new addressee meant more postage, so we thought hard about whom to send things to. (Is it worth spending thirty-two cents for Loren to read this letter? Nah….)

August 10, 2009

Dog Bite Case Website

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

I admire people who have the foresight and courage to pick a practice area and learn it, inside out. I greatly admire those who share the knowledge they have to help other lawyers and the public.

Here is a fine example: Dog Bite Law by Kenneth Phillips. He limits his cases to representing people who have been bitten by dogs and "accept [s] only cases where a person has been bitten in the face, or has become disabled — or where a person has been killed."

Kenneth shares lots of information for victims of dog bites, down owners, parents, journalists and other lawyers. He also sells what appears to be a very comprehensive form book. He also sells videos and books for lawyers. For those who have relatively minor cases, Kenneth sells forms to aid the injured party in resolving his own case.

August 8, 2009

Blore’s Razor

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

Those of us who do medical malpractice work are familiar with Occam’s Razor, the common understanding of which (as stated on Wikipedia) is that "of several acceptable explanations for a phenomenon, the simplest is preferable, provided that it takes all circumstances into account."

Those of us who do medical malpractice work are also familiar with the the following litigation tactic often employed by our brothers and sisters of the defense bar, known as Blore’s Razor: "Given the choice between two theories, take the one which is funnier." (from Michael Moncur’s (Cynical) Quotations).

August 7, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 6

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

This is the sixth in a series of posts concerning changes in Tennessee statutory law that I believe to be of interest to tort lawyers. For more changes click on the Legislation 2009 category of this blog.

Public Chapter 201 prohibits, subject to certain exceptions, the reading or sending of text messages while operating a motor vehicle and while the vehicle is in motion.

Here are the key provisions of the new law:

August 6, 2009

Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)

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

"All objections, except those as to the form of the question, are reserved." This sentence, or one substantially similar to it, may be found at the beginning of every deposition. But what are objections to the form of the question?

Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post. The post lists seven different objections – vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation – and gives examples of several of the objections. It is a handy list that you may wish to keep as a part of your materials on the law of depositions. Of course, you can always come back to this site and find the link under the "Civil Procedure" category or by using the "Search" function.

Many people get upset when you object to leading at a deposition. And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial. The law permits those witnesses to be lead during depositions. But the deposition of a co-party or a third-party witness is different. Why? Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).

August 5, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 5

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

This is the fifth in a series of posts about changes in Tennessee statutory law of interest to tort lawyers. For other changes click on the Legislation 2009 category.

Tennessee has a "Ski Area Safety and Liability Act" codified at TCA Section 68-114-101 et seq. Public Chapter 85 changes the definition of skier to include "any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic, freestyle, or other types of ski jumping, and who is using skis, or a sled, tube, or snowboard." It also increases the minimum insurance limits for each "ski area operator responsible for a passenger tramway" to $1,000,000.

Click on the link to read Public Acts, 2009 Public Chapter 85.