Day on Torts

February 24, 2009

Do You Want to Start Your Own Firm?

I admit it: I am a fan of the Wall Street Journal. I have read it almost every week day since I was 19, and actually got chill bumps when they started a Saturday edition a couple of years ago. The editorial page makes me mad as hell every morning, but quite frankly I think it is important to get mad as hell about something every single day.

Yesterday the WSJ had a great article titled "So, You Want to Be an Entrepreneur." The intended audience is those who want to start a business, but many of the points made apply to those who intend to start their own law practice. Here are the ten questions that the article encourages you to ask to see whether you are "up for the challenge of entrepreneurship:"

1. Are you willing and able to bear financial risk?

February 23, 2009

Has Hill v. NHC Been Settled? UPDATE

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

I heard a rumor that the appeal in Hill v. NHC Healthcare/Nashville,LLC, M2005-01818-COA-R30-CV, (Tenn. Ct. App. April 30, 2008) (Rule 11 granted Aug. 25, 2008) has been dismissed.

This important opinion held that the defendant nursing home’s arbitration clause was unconscionable as a matter of law. The hope was that this case would give some guidance on the circumstances under which arbitration clauses could be upheld in nursing home contacts.

Does anyone know what happened to this case?

February 21, 2009

Impeachment by Contradiction

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

How do you impeach by contradiction? The Federal Evidence Review Blog has a fine summary of a recent case from the Third Circuit that provides a “textbook example” of how one sets up an impeachment by contradiction and how the impeachment evidence comes before the jury even though it is not otherwise admissible.

An excerpt from the blog: “the introduction of the prior conviction evidence was “authorize[ed] under FRE 607 as impeachment by contradiction. After the defendant testified about a particular fact, the government could show that “the defendant lied as to that fact.” Gilmore, __ F.3d at __ (citing United States v. Greenidge, 495 F.3d 85, 99 (3d Cir. 2007) (no error in prosecution cross examination of bank fraud defendant about consumer and criminal complaints made against her in light of her volunteered denial that any such complaints had been made against her)).

February 20, 2009

Avoiding Malpractice – Tips for Lawyers

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

The American Bar Association has a nice paper titled "The Top Ten Malpractice Traps and How to Avoid Them." The paper is excerpted from "Desk Guide Legal Malpractice." Not all of the "traps" are applicable to those who do tort work on a full-time basis, but there is a lot to be learned from this 11-page document.

Here it is.

February 19, 2009

Ruining Depositions – Part 3 of 3

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

Evan Schaeffer from St. Louis has two blogs, The Legal Underground and The Trial Practice Tips Weblog. He has written three posts on the latter titled "15 Ways to Ruin a Deposition." Here is his latest and last post (Part 3) on the subject. Here is a link to Part 1 and Part 2.

A sample: "Failing to incorporate your completed deposition into your overall trial plan. After a deposition has ended, do you add the transcript to a giant stack of depositions sitting on your floor? There are a number of other more sensible post-deposition steps you can take. You’ll find seven of them here: ‘Trial-Planning Steps to Take After a Deposition Has Ended.’"

February 18, 2009

Peanut Butter and Peanut Recall List

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

Here is a list of the peanut and peanut butter products that have been recalled.

February 18, 2009

Fire in the Operating Room

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

The February 18, 2009 edition of The Wall Street Journal has an interesting article about fires in the operating room, which happen approximately 650 times per year in the United States.

A sample: "Because each member of the [surgical] team may be focusing on his own role in a procedure, ‘the No. 1 cause of fires is lousy communication’ says Patricia Seifert, editor-in-chief of AORN Journal, the monthly publication of the Association of Perioperative Registered Nurses."

Here is a website dedicated to raise awareness about this problem: www.surgicalfire.org.

February 18, 2009

Florida Family Awarded $8M in Tobacco-Related Death Case

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

Tort lawyers have been carefully watching the tobacco lawsuit against Phillip Morris which arose out of the death of 55-year old Stuart Hess. The Florida jury imposed liability several days ago and earlier today awarded $3M in compensatory damages and $5M in punitive damages. Read more here.

February 17, 2009

Liability Insurance Rate Increases Coming?

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

Liability insurance companies make money in two major ways. First, they make money on the insurance product – doing good underwriting, setting appropriate rates, and properly managing claims. Second, insurance companies make money holding today’s premiums to pay tomorrow’s claims (and claim expenses). That money is invested, and the investment income and capital gains on the investments are a big part of the net income of insurance companies.

Now, the stock market is in the toilet and the bond market is more complicated than ever. Short-term cash yields virtually no interest, and Treasuries have a very reduced yield. It is reasonable to assume that investment income is down, way down.

So, will rates be increasing? Yes. Will lawyers and juries be blamed? Of course.

February 16, 2009

Paul Does It Again

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

Paul Luvera has another great post on his outstanding blog, Plaintiff Trial Lawyer Tips.

A sample: "Focusing on the bad conduct of the defendant shifts the availability bias and causes the defendant to be the subject to the greater weight of scrutiny instead of plaintiff. Start with defendant’s conduct."

Enjoy.