Day on Torts

December 5, 2008

The Case for a “Loser Pays” Rule

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.

December 1, 2008

Deciding Who To Depose

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

Here are links to two interesting blog posts by Stewart Weltman in his "Lean and Mean Litigation Blog" on the subject of formulating a discovery plan before taking depositions. The knee-jerk response is depose everyone, but as this author makes crystal clear that is not always the smart thing to do.

A sample: "Rule No. 1 in developing a deposition program – you must have a clear conceptualization of what you want your case in chief to look like at trial and you also must anticipate what you believe the other side’s case is going to look like. If you don’t, then you are on a rudderless ship that will flounder aimlessly through discovery. How can you possibly know what to ask if you don’t have a clue (1) what you want your case to look like at trial and (2) what you believe the other side’s case is going to look like?"

Thanks Stewart.

November 26, 2008

IIHS Announces TOP SAFETY PICKS

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

The Insurance Institute for HIghway Safety has announced its TOP SAFETY PICKS for 2009.

The picks " recognize[ ] vehicles that do the best job of protecting people in front, side, and rear crashes based on good ratings in Institute tests. Winners also have to have electronic stability control (ESC), which research shows significantly reduces crash risk."

IIHS reminds us that "[f]ront and side impacts are the most common kinds of fatal crashes, killing about three-quarters of the 28,896 passenger vehicle occupants who died in 2007. Rear-end crashes usually aren’t fatal, but they result in a large proportion of crash injuries. Neck sprain or strain is the most commonly reported injury in two thirds of insurance claims for injuries in all kinds of crashes."

November 24, 2008

PDF Portfolio Webinar and Booklet

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

A couple weeks ago I wrote a post about use of PDF Portfolios to organize documents. The source for that post has recently given us access to an eseminar that he did on creating electronic closing binders using PDF technology – either PDF Binder or PDF Portfolio. The differences between the two programs are explained in great detail.

The author has also given us access to a 36-page guide called Creating Electronic Closing Binders using Acrobat 9.

These programs can be used to create electronic briefs, demand letters, etc.

November 23, 2008

Whoops! at NPR

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

It has been revealed that Dr. Frederick K. Goodwin, host of NPR’s "Infinite Mind," earned at least $1.3M from drug makers. He received the payments for giving lectures. NPR says it did not know about the payments, Goodwin says it did, but clearly the show’s listeners did not.

Did the payments compromise the integrity of the show? Who knows. Did they compromise the perception of the integrity of the show? Yes, beyond a shadow of a doubt.

Everyone understands that people who speak at seminars should be compensated for their time and expertise. Seminar presentations require lots of work, and even if you have given the exact talk before you are still taking time away from your family, your work, or both.

November 19, 2008

2008 Medical Malpractice Report Released

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

The Tennessee Department of Commerce and Insurance has released the 2008 Medical Malpractice Claims Report. The report reveals data from medical malpractice cases settled and tried in Tennessee in calendar year 2007.

The numbers:

Total judgments for plaintiffs

November 17, 2008

Duty Imposed on Anthrax Manufacturer

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

The Florida Supeme Court has relied on the Restatement (Second) of Torts to impose a duty on the manufacturer of anthrax "to avoid a an unauthorized intercepton and dissemination of the materials."

The lawsuit arose out of the mailing of stolen anthrax some seven years ago that resulted in the death of a man in Florida when he came into contact with the substance at his place of work.

The case is United States v. Stevens, No. SC07-1074 (Fl. Oct. 30, 2008). Read it here.

November 10, 2008

Failure to Supplement Discovery

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

Rule 37 of the TRCP makes exclusion of evidence the default sanction for failure to supplement. The trial judge can impose a lesser or greater sanction.

In a recent case in Arkansas the Court of Appeals reversed a jury verdict in favor of the plaintiff when the plaintiff failed to supplement answers to interrogatories concerning his medical treatment with a particular doctor.

In Moorehead v. Battles, the court said this:

November 8, 2008

New Newsletter Available

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

Brandon Bass and I are pleased to announce that the inaugural edition of Tennessee Trial Law Report – Tort Law Edition has been printed and mailed to Tennessee lawyers who we know practice tort law.

Brandon and I resigned from our position as editors of the Tennessee Tort Law Letter and launched this new publication in an effort to better serve the needs of lawyers in the state that do tort work. It is our view that tort lawyers need to stay current on the law of torts – but we also need to stay current on the law of evidence, civil procedure and trial. So, Tennessee Trial Law Report summarizes opinions in all four fields, whether those opinions are primarily tort opinions or instead are domestic, commercial or criminal law opinions that have morsels of information tort lawyers need to know.

For example, one of our lead opinions this month is not a tort case at all but rather a Court of Criminal Appeals opinion by Presiding Judge Joe Tipton on expert testimony. Another of our summaries addresses a non-tort Tennessee Supreme Court case on a important evidence issue.