Day on Torts

December 16, 2008

SCOTUS Rules for Plaintiffs in “Light” Cigarette Case

The United States Supreme Court has ruled for the plaintiffs in a case involving an assertion of federal pre-emption in litigation involving whether selling "light" cigarettes was deceptive.

As pointed out in this article in the New York Times,

"[t]he question before the court was not whether use of the term “light” amounted to fraud. It was, rather, whether plaintiffs should be allowed to sue at all given the federal Cigarette Labeling and Advertising Act, which required tobacco companies to place rotating warnings on their packaging and advertising."

December 15, 2008

Chamber of Commerce Wants to Preserve Right to File Suit

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

That’s right. The Chamber of Commerce believes in the right to file suit if you have been aggrieved by the conduct of another.

As long as you are a car manufacturer and want to complain about new laws limiting greenhouse gas emission standards.

Read about the Chamber’s latest hypocrisy here.

December 13, 2008

A Bad Day

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

Professionally speaking, it is hard to have a worse day than having a United States Supreme Court justice say this: " “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

That is what Justice Souter said to Jennifer Smith, a lawyer in the Tennessee Attorney General’s Office.

Preparing Clients for Events at Trial

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

Ten days or so ago I included a post from Paul Luvera’s blog about the importance of using checklists for taking the deposition of an eye witness.

Here is another post from Paul. This time he is sharing a checklist on information you should share with your client about the trial process. It includes suggestions for how the client should act during the trial and how to act during cross-examination.

Thanks again, Paul.

December 10, 2008

New Trucking Regulations Means Increased Public Safety

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

The Federal Motor Carrier Safety Administration has issued an amend to its regulations to require interstate commercial driver’s license (CDL) holders subject to the physical qualification requirements of the agency’s regulations to provide a current original or copy of their medical examiner’s certificates to their State Driver Licensing Agency (SDLA). The new regulations also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self certification the driver made regarding the applicability of the Federal driver qualification rules. The rule is effective January 30, 2009.

The goal of the new regulations is to help to prevent medically unqualified drivers from operating covered vehicles on our highways by giving the states the means of identifying CDL holders who are unable to obtain a medical certificate and to deter the use of false certificates.

Here is a copy of the new regulations.

December 8, 2008

Medical Malpractice Reporting Statute

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

Many plaintiff’s lawyers from across the state received assessments from the Department of Commerce and Insurance for failure to report data concerning medical malpractice settlements and judgments received during the prior year. Many of the penalities approach $20,000 and, as one lawyer told me, the penality he has been assessed is greater than the fee he received in the case.

Some people have asserted that the reason plaintiff’s lawyers have to report this data is my fault. That is not accurate. Here are the facts.

Since 1986 I have pushed for mandatory reporting of medical malpractice verdicts and settlements data. Unfortunately, the state of Tennessee only recently began keeping data on verdicts in med mal cases, and most settlements are cloaked with a confidentiality agreement. Therefore, we had no good data to fight the constant whining by the medical community that there was a med mal litigation crisis.

December 7, 2008

Tennessee Trial Law Report

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

Thank you to the hundreds of you who have said such kind words about our new newsletter, Tennessee Trial Law Report – Tort Law Edition. Brandon Bass and I have worked hard to put together a newsletter than will save you time and make you money.

Our idea was to have one source where a tort lawyer could stay up-to-date with all of the case law in the field of torts, civil procedure, evidence and trial. Your kind words, and your subscriptions, have confirmed that we are on the right track.

To read more about the newsletter and order a sample see our website. It includes a handy list of references for Tennessee tort lawyers.

December 6, 2008

Luvera’s Sample Talking Points for Trial

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

Paul Luvera has offered-up a list of his talking points for trial, an example that can be applied to a myraid of cases. See them here.

December 5, 2008

The Case for a “Loser Pays” Rule

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

The Manhattan Institute for Policy Research has issued a report extolling the virtues of a "loser pays" rule.

Here is an excerpt from the "Executive Summary:"

This study explores the likely effects of adopting a "loser pays" rule for attorneys’ fees in the United States. Loser pays, sometimes called the "English rule" but actually, in essence, the rule in place in the rest of the world, refers to the policy of reimbursement by the parties who lose in litigation of the winners’ legal expenses, including attorneys’ fees. This study argues that loser pays could be an important part of a larger effort to reduce litigation costs, better compensate prevailing litigants, and better align tort law with its goal of deterring socially harmful conduct. A loser-pays rule would discourage meritless lawsuits, but because any such rule should also ensure plaintiffs of modest means but strong legal cases access to justice, our proposal calls for:

December 3, 2008

Eye Witness Deposition Checklist

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

Paul Luvera’s blog includes this great checklist for taking the deposition of an eye witness.

Paul makes the point that "lawyers must use a checklist for every deposition they take no matter how experienced there are. If seasoned airplane pilots use checklists, lawyers should too. It’s too easy to get side tracked during a deposition and forget some area of questioning."

Thanks for sharing this, Paul. It is a wonderful tool.