Day on Torts

June 16, 2008

Tennessee Adopts Interstate Deposition Act

Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law. The Act is effective for discovery requests after July 1, 2008.

The legislation establishes a procedure for litigants in other states to do discovery in Tennessee. However, the Act is a uniform act, so Tennessee lawyers will benefit from knowledge of it when they have to do discovery in other states that also have the Act

The legislation also repeals on portion of the current chapter, T.C.A. Section 24-9-103.

June 16, 2008

From My Father’s Day Card – My Daughter Kate

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

Kate

June 13, 2008

Paralegal Fees Are Recoverable

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

The United States Supreme Court has ruled that a successful plaintiff may recover paralegal fees in a case against the government covered by the Equal Access to Justice Act.

Although not binding on Tennessee courts in those limited cases where attorneys’ fees are recoverable, the result can be used as support for the general notion that paralegals perform valuable services in litigation and therefore should be given fair consideration in fee awards.

Read Richin Security Service Co. v. Chertoff, No. 06–1717 (USSC June 2, 2008) here.

June 11, 2008

Prior Suit Pending Doctrine

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

The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine. The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker’s compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case. Either the employer or the employee may file a worker’s compensation complaint. When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC. If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties."

June 9, 2008

Local Rules

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

The website of the Tennessee Administrative Office of the Courts maintains a set of all of the Local Rules for the state’s circuit and chancery courts. View.

The site makes it clear that the AOC only posts what it has been given, so it would be prudent to check with the local clerk’s office and get a current set of the rules if you do not normally practice in the venue.

June 5, 2008

Whoops

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

Grandstaff v. Bowman, No. E2007-00135-COA-R3-CV, (Tenn. Ct. App. May 29, 2008), is a case that reminds careful readers of the perils of filing a personal injury case on the eve of the statute and then simply sitting on it. As a result of this conduct, the plaintiff lost the opportunity to add a corporate defendant who employed the individual defendant at the time of the car wreck.

Plaintiff attempted to use Sec. 20-1-119 to get around the problem; Judge Susano correctly ruled the statute inapplicable.

Plaintiff then tried to say that he did not discover the existence of the corporate defendant until a date within one year of the date of filing. Not a bad argument – unless one considers these facts:

May 30, 2008

What It Takes To Be A Great Trial Lawyer – Part 20

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

Closing Thoughts

As I said in my first post on this subject, a great trial lawyer need not have all of the attributes set forth in this series of posts. Admittedly, the "great trial lawyer" hurdle has been set high. Very high. Indeed, if complete fulfillment of all of these attributes is required, the great trial lawyer may not exist at all.

These words and high standards are not meant to discourage lawyers from embarking upon the path to becoming a great trial lawyer. Every time a lawyer meets one of these super-standards clients will be better served, professional reputation will be enhanced, and profession satisfaction will increase. Thus, I believe that virtually every trial lawyer, even those who choose not to make the commitment to be a great trial lawyer, can benefit from the thoughts expressed in this series of posts.

May 29, 2008

Free Electronic Newsletter – The Jury Expert

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

Thanks to Trial Ad Notes for telling me about the American Society of Trial Consultants website and, more importantly, about their electronic newsletter, The Jury Expert. The newsletter is published bimonthly. A subscription is free.

You can download past issues here.

May 27, 2008

What It Takes To Be A Great Trial Lawyer – Part 19

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

The Knowledge That You Are Only as Good as Your Next Verdict.

I stole this idea from a friend in Atlanta who told me about it over a decade ago. While I disagree with the notion some might take from this statement (that a lawyer has to win or has done a poor job), I wholeheartedly agree with what I know was intended by the statement: great trial lawyers do not rest on their laurels.

There is no doubt that some percentage of lawyers who have had a few victories start to believe their own press. These people come to believe that they are better than their opponents and that they can win by the sheer force of their past successes. They believe that yesterday’s victories will carry the day and that they can cut corners in preparation with no adverse effect.

May 22, 2008

Back From D.C.

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

I have been in Washington, D.C. since Sunday attending the 85th Annual Meeting of the American Law Institute. Thanks to Howard Vogel, Judge Cissy Daughtrey, Chief Justice Mickey Barker, Bill Wagner, and Lucian Pera I was elected to membership in the ALI in the Fall of 2006.

We heard from Justice Ginsberg Monday morning; the rest of the day was left to a debate on a tentative draft of certain aspects of the law of aggregate litigation. On Tuesday we dealt with the law of nonprofit organizations and unjust enrichment.

There were no pure tort projects on the agenda for this meeting. I belong to the Members Consultative Group for two projects, Liability for Physical and Emotional Harm and Economic Torts and Related Wrongs. Here is a description of the drafting process.