Day on Torts

August 11, 2009

Dead By Mistake

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.

August 4, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 4

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

This is the fourth in a series of posts that addresses new laws of interest to Tennessee tort lawyers. For other changes go to the Legislation 2009 category of this blog.

Those of us who keep an eye on the Tennessee General Assembly know that there is an ongoing battle over whether hospitals will be permitted to employ physicians. As of now, hospitals can employ hospitalists but they cannot employ ER doctors, anesthesiologists, radiologists, etc.

The renal dialysis clinics have cracked the door open slightly and won the right to employ doctors under certain circumstances. This will be of interest to medical malpractice lawyers, who will need to explore the vicarious liability of clinics for the acts of nephrologists and others caring for ESRD patients. The law will also be of interest to those representing such doctors, in tort as well as contract litigation.

August 3, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 3

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

Many lawyers think that the law concerning depositions is set out only in the Tennessee Rules of Civil Procedure and the case law interpreting those rules. That is not correct.

Public Chapter 55 creates a new subsection to TCA Section 24-9-101, which allows court to award attorney fees and expenses if motion to quash subpoena is granted when the witness is exempt from subpoena to trial. The new subsection is labeled (b).

What is the text of subsection (a)? In other words, what classes of people are exempt from subpoena to trial? Here is the list:

July 31, 2009

Implementation of “Red Flags” Rule Delayed

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

On July 20 I warned you about new federal regulations known as the "Red Flag" rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft. The rules were scheduled to go into effect on August 1.

The FTC, the agency charged with the responsibility to enforce the rules, has delayed enforcement of the rules until November 1, 2009. The following is from the FTC press release:

Commission staff will create a special link for small and low-risk entities on the Red Flags Rule Web site with materials that provide guidance and direction regarding the Rule. The Commission has already posted FAQs that address how the FTC intends to enforce the Rule and other topics – www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm. The enforcement FAQ states that Commission staff would be unlikely to recommend bringing a law enforcement action if entities know their customers or clients individually, or if they perform services in or around their customers’ homes, or if they operate in sectors where identity theft is rare and they have not themselves been the target of identity theft.