Day on Torts

June 12, 2009

UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute

SB 2109 passed the Senate at 11:36 on June 4 and is now on its way to the Governor’s desk. The Bill passed the House (HB2233) in May. UPDATE: The Governor signed the legislation on June 11. Click here for information on the June 15 seminar on this important bill.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions. The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say. It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

June 11, 2009

Thinking About Contingent Fees

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

Maxwell Kennerly has written an excellent post titled "Contingent Fee Business Lawyers as Venture Capitalists" at his Litigation and Trial blog.

An excerpt:

Day in and day out, the primary thing a contingent fee law firm does is spend lots of money. In addition to all the normal costs of a business (rent, staff, etc.), you have to pay your attorneys salaries which are competitive in the market, even against hourly billing firms, and you have to dump loads of money and time into cases for experts, motions, discovery, trials, appeals and negotiations, none of which earn you a dime until the very end.

June 10, 2009

Invest in Litigation?

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

Yep. That is what Richard Fields is doing. He is the chief executive of Juridica Capital Management, an organization which runs a fund that invests in one side of a lawsuit in exchange for a share of any winnings. The company invests in commercial litigation.

This article in the New York Times reports that a unit of Credit Suisse and Juris Capital have a similar business model, as do several unnamed hedge funds.

Juridica has $200 Million available, with an average investment of $7.5 million.

June 9, 2009

New Tennessee Law Blog

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

There is a new blog in town – the Tennessee Insurance Litigation Blog. The blog is authored by Parks Chastain and Brandon McWherter. Parks typically represents insurance companies and Brandon typically represents policyholders.

Great idea, gentlemen. Good luck.

June 9, 2009

Seminar on New Medical Malpractice Legislation

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

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate on June 4, 2008. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law. The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar. Each provision of the legislation will be discussed in detail. I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

June 8, 2009

Proposal to Change Tennessee Ethics Rules

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

The Tennessee Bar Association has filed proposed changes to the ethics rules governing the conduct of Tennessee lawyers. The project represents the first effect to change the rules since tan entire new code was adopted in 2002.

Read the petition of the TBA here.

Read the a red-line version here.

June 8, 2009

Lawyer Questions Experience of Some Lawyers Who Advertise

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

Ken Shigley from Atlanta offers an interesting post concerning his research into and thoughts about some of the lawyers who advertise in his community.

He starts his post with these words:

As a serious personal injury attorney in Atlanta, Georgia, I am frankly embarrassed by the inundation of billboards and TV ads for personal injury lawyers who have little respect within the profession and seldom if ever set foot in a courtroom.

June 8, 2009

SCOTUS Rules That W.Va. Chief Justice Should Have Recused Himself

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

The Supreme Court of the United States has ruled that the Chief Justice of the West Virginia Supreme Court should have recused himself in a case involving the company of a man who ran $3,000,000 of ads in favor of the judge’s election. Read the opinions here.

June 7, 2009

Seminar on New Medical Malpractice Litigation

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

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law. The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar. Each provision of the legislation will be discussed in detail. I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

June 6, 2009

Effect of Tort Reform Legislation

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

Walter Olson at Point of Law shares a study from the Pacific Research Institute on the effect of various tort reforms. The study, was authored by Nicole V. Crain, W. Mark Crain, Lawrence J. McQuillan, and Hovannes Abramyan, and is titled "Tort Law Tally: How State Tort reforms affect Tort Losses and Tort Insurance Premiums".

Here is an excerpt from the executive summary:

Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform’s ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).