Day on Torts

March 27, 2009

Standard for Recusal of Judge

What is the standard to be applied when a judge faces a recusal motion? The Tennessee Supreme Court answered that question yesterday in Bean v. Bailey, No. E2007-02540-SC-S10-CV (Tenn. Mar. 26, 2009).

Here is the standard:

a recusal motion should be granted when “the judge has any doubt as to his or her ability to preside impartially in the case” or “‘when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.’” Davis, 38 S.W.3d at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Even if a judge believes he can be fair and impartial, the judge should disqualify himself when “‘the judge’s impartiality might be reasonably questioned’” because “the appearance of bias is as injurious to the integrity of the judicial system as actual bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).

March 27, 2009

Attorney General’s Opinion on Effect of Expiration of Judicial Selection Commission

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

The Judicial Selection Commission and the Judicial Evaluation Commission are in a wind-up period after the General Assembly let them die last year. (I serve on the later commission as an appointee of former Lt. Governor John S. Wilder.) Both commissions will die on June 30, 2009 unless the General Assembly takes action to provide for their continued existence.

What happens to our existing judges if the commissions are permitted to die? What happens when a vacancy occurs? This is what the Attorney General thinks should happen:

1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.

March 26, 2009

“Dealing with the Difficult Adversary”

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

Here is an interesting article from the ABA Section of Litigation on the issue of handling the difficult adversary lawyer. We have all been there.

Here is a description of a type of lawyer each of us has seen:

The Bully. Nearly all difficult adversaries exhibit bullying behavior. This lawyer is rude, ruthless, and unhappy unless he controls everything. From day one, the Bully has told you what was going to happen and threatened you and your client with motions, sanctions, and more. Depositions with the Bully are torture. You cannot get a question in without a speaking objection. If he is questioning your witness, the Bully ruffles at every objection and asks every question of your witness with an heir of arrogance, indignation, and contempt.

March 26, 2009

Structured Settlements Are Up

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

Structured settlements were up 25% in the 4th quarter of 2008 (compared with the previous quarter), and totaled nearly $1.8 billion, according to this article in the National Law Journal. The article relates the increase to the economic turmoil we have been experiencing.

Perhaps. But what were they in the 4th quarter of 2007? I would expect that structures are usually up some percentage in every 4th quarter because there tends to be more settlements in the 4th quarter than during other times during the year. Thus, a comparison with the 4th quarter of 2007 would have been much more relevant on the issue.

That being said, I would not be surprised to see plaintiffs tend to gravitate to structured settlements during these times. Most plaintiffs do not have the ability or time to manage investments, and the events of the last 6 months prove that professional money managers are not immune from losses in the market.

March 26, 2009

Don’t Make This Argument

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

I argued a medical malpractice case before the Tennessee Court of Appeals today. Regular readers know that we prevailed in a med mal case in Maury County last year after a thirteen-day jury trial. The case has been resolved as to all defendants but one, the ER doctor, and it was that case that was set for oral argument today. The sole issue on appeal is whether the ER doctor should be absolved from his fault (he did not challenge the jury’s finding that his negligence contributed to cause the death of his patient) because of an alleged superseding cause. The jury rejected the affirmative defense of superseding cause at trial, but the ER doctor is arguing that the conduct of another defendant is a superseding cause as a matter of law.

I heard several other oral arguments as we waited for our case to be reached. I actually heard one lawyer say words to this effect: if you do not accept my first argument, my throw-away argument is blah, blah, blah.

My throw-away argument? Who would pay attention to a self-described throw-away argument? There are times you may properly call our opponent’s argument a throw-away argument, but if you think your own argument sinks to that level then I suggest you not make it. And, if you have to make it, then at least call it something else, e,g, a secondary argument, another ground that requires reversal, etc.

March 25, 2009

Lawyer Sued By Non-Client Over Statute of Limitations “Advice”

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

Plaintiff talked to lawyer (later the defendant) about a potential car wreck case. The lawyer allegedly gave the plaintiff wrong information about the statute of limitations applicable to the claim. Plaintiff’s car wreck case was dismissed as time-barred.

Plaintiff sued the lawyer for negligent misrepresentation. Lawyer said that he never represented client and, indeed, client never alleged an attorney-client relationship.

The Colorado Court of Appeals allowed the case against the lawyer to proceed under the negligent misrepresentation theory as set forth Section 552 of the Restatement (Second) of Torts (1977), saying that "in Colorado a claim based on negligent misrepresentation is independent of any principle of contract law and that privity is not required."

March 24, 2009

Lawyer Sanctioned in Fee Dispute

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

Keeping contemporaneous time records in cases where fee-shifting is allowed just makes sense. Not keeping such records does not make sense. And, if the allegations against one attorney are correct, a lack of candor about whether such records were kept can cause a big, expensive mess.

Result? A forfeiture of a fee claim of $2,000,000 and a sanction of $25,000.

Plaintiff’s lawyers don’t like to keep up with time. Admittedly, it is a pain in rear to do so. But the fact of the matter is that the amount of time spent in a case is a relevant – not determinative – but relevant factor in determining the the reasonableness of a fee in a fee-shifting case and the lack of contemporaneous time records in such cases is always going to cost you money.

March 23, 2009

Neuro Linguistic Programming

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

Paul Luvera has written an interesting post on neuro linguistic programming. Those of you who have studied concepts such as mirroring and anchoring have explored some of the concepts that make up this field as applied to our craft.

The Oxford English Dictionary defines NLP as "a model of interpersonal communication chiefly concerned with the relationship between successful patterns of behaviour and the subjective experiences (esp. patterns of thought) underlying them" and "a system of alternative therapy based on this which seeks to educate people in self-awareness and effective communication, and to change their patterns of mental and emotional behaviour."

I was introduced to this subject ten or more years ago by Eric Oliver, a trial consultant from Michigan. Eric is scary smart and the author of Facts Can’t Speak for Themselves.

March 20, 2009

A Look Back: Senator Frist and Terri Schiavo

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

It was four years ago today that I wrote about the ability of Senator Bill Frist to make a medical diagnosis via videotape. Here is my follow-up post from June 16, 2005, written after the release of Ms. Schiavo’s autopsy.

Did Dr. Frist’s videotape diagnosis cost him a shot at the presidency? That is a tough question. But I guarantee you that he wishes he had never heard of Terri Schiavo.

March 19, 2009

Pleading With Particularity

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

The rules of civil procedure in Tennessee ordinarily require that a plaintiff make a "short, plain statement.." There is an exception – Rule 9 of the TRCP requires pleading with particularity when fraud or mistake are alleged.

Nothwithstanding the general rule, some people believe that more is better. Here is an example, from a real complaint in a real case:

Plaintiff was operating said vehicle in a safe and prudent manner, lawfully and under conditions commensurate with road and weather conditions on or about January 1, 2009, on Highway X in Some County, Tennessee, when Plaintiff fell asleep and drove off the roadway. Upon exiting the roadway, the vehicle came to a sudden stop when it collided with a culvert along the side of the roadway. The vehicle was equipped with airbags which did not deploy in the accident.