Day on Torts

April 7, 2009

Practice Tip – Look to the Law First

Here is a tip that will improve the quality of your law practice and your life: look at the law first.

Oh, things a different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes – Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

April 6, 2009

Genetic Defect in Sperm Gives Rise to Products Claim

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

A mentally retarded 13-year old girl has been permitted to purse a claim against a sperm bank that sold her mother sperm 14 years ago. She has claimed that the sperm had a genetic defect that caused her mental retardation.

The case is Donovan v. Idant Laboratories. Read more about the case here.

Thanks to Jonathan Turley for informing me of the opinion.

April 3, 2009

The Alleged IME Exposed

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

IME. Independent Medical Exam. And just how independent is the so-called IME? The New York Times has looked behind the curtain in New York, and it doesn’t like what it saw.

Here is an excerpt: "’If you did a truly pure report,” [the IME doctor] said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.’”

Here is the article.

April 2, 2009

April Edition of the Tennessee Trial Law Report

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

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)).