Day on Torts

April 2, 2009

April Edition of the Tennessee Trial Law Report

The April 2009 edition of the Tennessee Trial Law Report is in the mail.

This edition includes a summary of 11 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between February 15 and March 15, 2009. The newsletter totals 40 pages, including 20 pages containing the full-text (in addition to our summary) of the most important opinion issued last month. We add the full-text of the Smartt decision because we think that it is significant enough that lawyers who seek to stay on top of tort law will want to read it in full.

The newsletter also includes (a) Part 1 of my new, four-part article of the law of jury selection; and (b) a summary of the status of 20 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

April 2, 2009

Off Topic – Photos From Memphis, April 4, 1968

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

I just saw these previously unreleased photos from Life magazine that were taken on the day that Martin Luther King was shot. Most of the photos were taken at the Lorraine Motel, the site of the murder. They were so powerful I felt that I should share them with you.

The Lorraine Motel is now the National Civil Rights Museum. I encourage you to spend several hours there the next time you go to Memphis. You will find it to be an educational and moving experience.

April 2, 2009

Lawyer Shares Writing Tips

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

Raymond P. Ward writes "the (new) legal writer," where he shares his knowledge of the art of legal writing. In this post he shares an excellent article that helps us understand techniques for emphasis and de-emphasis in our our writing.

An excerpt: "look for your favorite passage in that favorite book, the one that hit you in the gut the first time you read it. Is it in bold, italics, or all capital letters? Probably not. Good writers don’t need typographic gimmicks to pack their prose with power."

He is absolutely right!

April 1, 2009

Take A Look At Your Fee Agreement

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

The lawyer in this case was not permitted to collect expert witness expenses from his client after an unsuccessful med mal case because the fee agreement with the client said only that the client "may" be responsible for such expenses.

What does your fee agreement provide?

April 1, 2009

“They Killed My Patient. Then They Tried to Hide It.”

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

These are not the words of some crazy plaintiff’s lawyer. These are the words of a doctor. Dr. Amy Tuteur at Harvard.

An excerpt: "If I had been angry about what happened to the patient, I was even angrier after learning of the deception. The hospital had deliberately lied to protect its staff members. They lied to cover up medical negligence, with the assumption that the doctors in question would continue to practice at the same hospital, free to make similar mistakes."

Read it all for yourself. Don’t forget the comments. All of the comments. Keep reading.

March 31, 2009

The Latest From David Mills

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

Med Mal

From the March 30, 2009 edition of Courtoons.

March 27, 2009

Standard for Recusal of Judge

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

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.