Day on Torts

June 30, 2009

Closing Argument Requires Reversal

The United States Court of Appeals for the Tenth Circuit has reversed a $2.4 million jury verdict for the plaintiff because of misconduct by plaintiff’s counsel during closing argument.

In the words of the Court: "We are compelled to reverse and remand for a new trial because of pervasive and improper remarks by Mr. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff’s children, is fully set forth in the opinion.

June 29, 2009

John, Where Have You Been?

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

Nowhere. Nowhere different, anyway. But I have not been blogging because, as you can see, the look of my blog has been changed with the assistance of the great folks at Lexblog. The transfer of information and the final set-up on the blog takes a couple days, meaning that I could not post any material whatsoever.

This is the first change to the look of the blog in the 52+ months of its life. It was overdue.

I hope you enjoy the new look and that you will keep visiting. The daily visits to this site continue to grow and I hope that the information shared here continues to assist you in the representation of your clients.

June 29, 2009

“Other Bad Act” Evidence in Medical Malpractice Cases

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

Sometimes a lawyer representing a patient in a medical malpractice trial may want to introduce evidence of "bad acts" of a health care provider or a provider’s expert witness. This article from the Medical Malpractice Newsletter published by the Hinshaw & Culbertson tells us how the defense is going to attempt to keep that information from the jury.

June 24, 2009

Study on Impact of Chrysler and GM Bankruptcy on Future Wreck Victims

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

A report from Safety Research & Strategies called "Public Safety at Risk: Bankruptcies Leave Legacy of Defects, Injuries and Deaths" projects what will happen now that there will be 30 million GM and 10 million Chrysler products still on the road after bankruptcy agreements cancel the ability for accident victims to seek compensation by suing the companies.

The verdict? "More than 3,400 U.S. citizens could be killed or injured in the next 12 months by defective cars that are immune from lawsuits." The estimate is based on the number of claims against the manufacturers between the 3rd quarter of 2003 and the 4th quarter of 2008.

Read the report here.

June 23, 2009

Luvera on Direct Examination

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

Paul Luvera does it again, this time with a nice post on conducting direct examinations on his blog. Plaintiff Trial Lawyer Tips

An excerpt:

Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.

June 23, 2009

ACOG Changes FHR Monitoring Guidelines

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

From ACOG’s Press Release:

Refinements of the definitions, classifications, and interpretations of fetal heart rate (FHR) monitoring methods were issued today in new guidelines released by The American College of Obstetricians and Gynecologists (ACOG). The objective of the guidelines is to reduce the inconsistent use of common terminology and the wide variability that sometimes occurs in FHR interpretations. ACOG’s Practice Bulletin, published in the July 2009 issue of Obstetrics & Gynecology, supports the recommendations of the Eunice Kennedy Shriver National Institute of Child and Health Development workshop* on electronic fetal monitoring (EFM) held in April 2008.

…

June 22, 2009

Depositions of Expert Witnesses

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

What is your opponent going to do to prepare for your expert’s deposition? This article, "The Opponent’s Expert: Preparing for the Most Important Deposition in the Case," 59 Fed’n Def. & Corp. Couns. Q.145 (2008), answers that question.

June 21, 2009

A Wonderful Way to Spend A Saturday

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

It doesn’t sound particularly appealing.

Leave Memphis Friday afternoon. Drive to Nashville. Pack a new bag. Catch a flight to Charlotte. Race through the airport from Gate E35 to B3. Catch a flight to Mrytle Beach. Catch a 45-minute long shuttle to a North Carolina resort. Carry your bag up the steps to a second floor room at 12:30 in the morning. Get a few hours sleep and go to a windowless ballroom. Hang around a few hours to give a speech to a room full of people who had a similar ordeal to get there. All the while knowing that you have to reverse the process the next day in an effort to get home for a meal with the family on Father’s Day.

But the drudgery evaporated when I heard Lt. Col. V. Stuart Couch, USMC, speak at Saturday’s luncheon of the North Carolina Advocates of Justice Annual Meeting. Who is Col. Couch? He was the Gitmo prosecutor – a career prosecutor – who refused to prosecute a terrorist who had been subjected to torture. Read more here.

June 19, 2009

Covenants Not to Compete

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

Here is a link to a blog on covenants not to compete – a fascinating area of litigation.

Tennessee has a lot of law in this area, and a recent Tennessee Supreme Court case on the subject was essentially reversed by a new statute.

If you do this type of work you may find this blog of assistance to you.

June 17, 2009

New Business Tort Blog

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

B2B tort litigation is a growing phenomena, as big firm lawyers start to think outside of the box. Here is a new blog dedicated to the subject –Unfair Business Practices.

The blog focuses on unfair business and trade practices such as business conspiracy, breach of fiduciary duty, misappropriation of trade secrets and other proprietary information, fraud, tortious interference with contracts and other unfair business practices that are not neatly defined."

The blog is published by the Williams Mullen firm in Virginia.