Day on Torts

April 14, 2009

“Using A Checklist for Witness Preparation”

James Publishing Company’s website includes excerpts of certain of its books. Here is an excerpt from Section 433 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§433 Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

April 13, 2009

David Mills’ Courtoon Caption Contest Winner

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

David Mills, lawyer and cartoonist, held a contest to determine the best caption for this cartoon. The winning caption appears below.

Courtoon(1)

I submitted several entries, including "“Yes, I made $4M last year testifying for Ford, but that does not influence my professional judgment," and "demonstrative evidence is essential when proving loss of consortium for the single male." I also offered this caption from the standpoint of a juror: “He makes more sense than the last three witnesses.” I did not win, but must confess that the winning caption is much better than any of those I offered.

David has a wonderful gift. I confess – I am jealous.

April 10, 2009

Never Events

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

Here are the 28 medical events that the National Quality Forum says should never occur:

Surgical Events

Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure on a patient
Retention of a foreign object in a patient after surgery or other procedure
Intraoperative or immediately post-operative death in a normal healthy patient

April 8, 2009

Is that Deposition Necessary?

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

I brought a couple posts from the Lean and Mean Litigation Blog to your attention back in December. These posts discussed the need of formulating a discovery plan before taking depositions.

Here is a related article titled "Mastering the Blind Cross-Examination" written by Mark A. Nuebauer. This article questions the need to depose everyone and provides tips on cross-examining a witness who has not been deposed.

An excerpt: "To be effective, blind cross must have a specific goal. More often than not, each witness in a trial is intended to lay out a specific fact or a set of key facts that help provide the premise for that side’s case. Cross-examination should be a laser beam designed to attack that side’s contention of that fact or set of facts. In short, blind cross-examination should be a stiletto, not a sledge hammer attack."

April 7, 2009

Off Topic – Roundball

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

It is 1:45 AM. I just returned to the Carolina Inn after spending a little time on Franklin Street in downtown Chapel Hill, NC. My daughter and I had the pleasure of being in the Dean Dome and watching the Tar Heels win their 5th National Championship. It was a great game to watch – if you were a Carolina fan.

Go Heels!

April 7, 2009

Practice Tip – Look to the Law First

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

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.