Day on Torts

December 29, 2008

Practice Tip – Professional Services Sales Tax on Lawyers?

From time to time over the years there has been talk about imposing a sales tax on professional services. One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government.

Like all sales taxes, a tax on professional services should be paid by the client. However, to make that absolutely clear to the client, you may wish to include a paragraph similar to the one set out below in your fee agreement.

Possible Tax on Professional Services. In addition to the expenses listed above, in the event that the State of Tennessee imposes a tax on legal services (legal services, expenses of representation, or both), Client agrees to pay any such tax that is assessed against Attorneys. No such tax has been imposed by the State of Tennessee at this time, and Attorneys will inform me if such a tax is passed by the Legislature and signed in to law by the Governor. If the contingent fee option is chosen, any such taxes will be deducted from the recovery after attorneys’ fees have been calculated and deducted. If the hourly fee option is chosen, the applicable taxes will added to Client’s monthly bill.

December 25, 2008

Chamber of Commerce Lobbies for Protection from Lawsuits

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

Here is the text an December 20, 2008 article on the CBS News website about the efforts of the U.S. Chamber of Commerce to take advantage of the opportunity created by the world’s financial problem to seek legal protection for wrongdoers. Thanks to Suzanne Keith at TAJ who forwarded it to me.

Made in America: Corporate Gall

Dec. 20, 2008

December 24, 2008

The Politics of Fear in an Effort to Achieve Tort Reform

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

Insurance companies know that they have little credibility in the fight over access to the courthouse. This is particularly true in the medical malpractice area, where the evidence in Tennessee demonstrates that (a) doctors and hospitals win over 96% of jury trials; (b) professional liability rates, adjusted for the medical inflation rate, have been more or less flat for over 20 years; (c) the average settlement is $256,100 (for calendar year 2007); and (d) $1,000,000 verdicts are extremely rare.

But that doesn’t sell insurance. And it certainly doesn’t cause doctors to jump on the tort reform bus.

What does? Fear. And it was an effort to create fear that gave rise to this statement by State Volunteer Mutual Insurance Corporation in a publication to their insureds:

December 22, 2008

Will Budget Cuts Hurt Our Judiciary (And Tennesseans)?

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

The state’s law libraries are closing their doors to lawyers and other citizens. The Administrative Office of the Courts is cutting programs and staff. Appellate court law clerks are fearing the loss of their jobs.

Tennessee budget problems are hitting the judiciary and it remains to be seen what impact the financial cuts have on civil jury trials. In New Hampshire, civil and criminal jury trials are being eliminated for an entire month. Florida has cut 280 clerks, lawyers and staff members, and if another 10% budget cut is made civil jury trials will be suspended, according to one judge.

Will the budget crisis force the state to take a hard look at judicial system? There are some tough questions that will be asked. Do we need two sets of clerks – chancery and circuit? Should the Tennessee Supreme Court be given the power to administer the court system, allocating resources across the state as needed?

December 18, 2008

Tennessee Nursing Homes Rank At the Bottom

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

According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services. Less than 7% of the nursing homes in Tennessee were rated above average.

The paper reports that

"[o]f the 40 nursing homes listed in Davidson, Rutherford, Sumner, Williamson and Wilson counties, 11 fell well below average. Three of those — Briley Nursing and Rehabilitation Center in Whites Creek, Greenhills Health and Rehabilitation Center in Nashville and Cumberland Manor Nursing Center in Nashville — not only received the poorest marks for overall quality, but also received the lowest possible score in every category."

December 18, 2008

My Grandmother’s Birthday

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

On March 24, 2006 I wrote about the death of my grandmother, Milda Heath, at the age of 97. Today is her 100th birthday.

She was a wonderful grandmother, mother, teacher and citizen. I miss her.

December 17, 2008

Summary of New FRE 402

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

Here is a summary of FRE 502 which came into effect on September 18, 2009. The rule – which addresses the attorney client privilege and work product doctrine – is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

Thanks to Federal Evidence Review.

December 16, 2008

SCOTUS Rules for Plaintiffs in “Light” Cigarette Case

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

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.