Day on Torts

March 26, 2009

Don’t Make This Argument

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.

March 18, 2009

Free Research!

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

Are you familiar with JD Supra? It is a website that contains thousands of legal documents prepared by lawyers around the country. You can search by key word, locate a document relevant to your issue, and use to short-cut your research time.

For example, here is a brief written on behalf of a plaintiff who was opposing a motion by a defendant in a civil case to stay discovery while criminal charges were pending against him for the acts that also gave rise to the civil suit.

March 17, 2009

New Rules Adopted by General Assembly

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

The Tennessee General Assembly has passed resolutions approving the rule changes proposed by the Tennessee Supreme Court. The rule changes will be effective July 1, 2009.

Here is a brief summary:

Civil Procedure: There are changes to 11 different rules or comments on rules – Rule 1, 8, 12, 23, 34, 45, 51, 52, 55, 60 and 65. Two of the most significant changes are (a) non-parties can be ordered to make property available for an inspection; (b) judges must state findings of fact and conclusions of law in non-jury trials.
Electronic Discovery: A significant number of rules have been amended to incorporate specific rules concerning electronic discovery. The new rules represent a substantial change in Tennessee law.
Evidence: There are changes to 404, 703, 803 and 804. The changes to Rule 703 and 803 are of particular importance to tort practitioners.
Appellate Procedure: There are changes to Rule 13 (comment only) and 36; a new rule concerning mediation during an appeal is adopted as Rule 34.

The links will take you to the Order setting forth the rule changes. I will discuss some of the more important changes in more detail during the coming weeks.

March 16, 2009

Manual on Uniform Traffic Control Devices

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

The Manual on Uniform Traffic Control Devices defines the standards used by road managers and contractors nationwide to install and maintain traffic control devices on all streets and highways. The MUTCD is published by the Federal Highway Administration (FHWA) under 23 Code of Federal Regulations (CFR), Part 655, Subpart F. The MUTCD has been adopted as the law in Tennessee; violation of the MUTCD is negligence per se. Here is a list of the other states that have adopted the MUTCD.

If you have a case that involves an injury or death at a road construction site you will want to consult this manual to determine if the contractors involved followed the minimum standards established by this manual. The manual also applies to governmental entities and others placing road signs.

Here is the 2003 edition of the MUTCD with Revisons 1 and 2 Incorporated, effective date December 2007. Here is the Table of Contents. This site also has the previous editions of the MUTCD.

March 16, 2009

Birthday of William L. Prosser

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

Yesterday (March 15) was the 111th birthday of William L. Prosser, author of the torts text used by most of us in law school and Reporter for the Restatement (Second) of Torts.