Day on Torts

April 30, 2008

What It Takes To Be A Great Trial Lawyer – Part 14

A Healthy Respect for the Judicial System

Great trial lawyers have a healthy respect for the judicial system and, if they are jury trial lawyers, for the right to trial by jury and the jury system. They demonstrate that respect in the way they speak and act around lawyers and non-lawyers.

Great trial lawyers have respect for the judiciary. They know that the office is more important than the person who occupies it at any given time, and the fact that they have a personality or other conflict with a given judge does not give them license to treat that judge with disrespect. They do not abuse a personal relationship with a judge, or lead another lawyer, client or potential client to think that their relationship with a judge will affect the outcome of a proceeding. They do not casually inform a client that a case was lost because opposing counsel had an inappropriate relationship with a judge or that the judge was "bought off." Indeed, they never say or suggest such a thing, unless they know it to be true, in which event they advise the district attorney or other appropriate authorities.

April 25, 2008

Chamber of Commerce – Lawsuit Climate 2008

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

The Chamber of Commerce does an annual ranking of the "lawsuit climate" in the fifty states. The winning state – Deleware – has the most pro-business climate. The losing state – West Virginia – has the most anti-business climate. How are the rankings determined? By a "sample of in-house general counsel or other senior corporate litigators to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business."

Tennessee is ranked 22nd, down (or is that up?) from 6th last year.

That’s interesting, when one considers that there have been virtually no changes – and certainly no dramatic changes – in Tennessee’s substantive law in the previous year. And the judiciary is 95 percent the same. Perhaps Tennessee moved lower because other states moved higher.

April 23, 2008

What It Takes To Be A Great Trial Lawyer – Part 13

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

A Passion for the Work

It is hard to be a great trial lawyer if you don’t like what you do. Most people can quickly determine whether a lawyer – or the cashier at McDonald’s – has a passion for the job. You can see that passion in the face of a great trial lawyer, you can hear it in her voice, you can feel it in his writing. For whatever reason, great trial lawyers love what they do.

We all know lawyers who hate what they do. Indeed, we know lots of these lawyers. These lawyers do not have a chance of becoming great trial lawyers or maintaining the status of a great trial lawyer if they achieved it in the past. Why? Because becoming and staying a great trial lawyer is too much work, and the person who hates or is ambiguous about the work cannot do or continue to do the work to the extent required of a great trial lawyer. They will never reach the status because they are unwilling – indeed, unable—to do what is required to get there. And if lawyer reaches the status of a great trial lawyer but for whatever reason begins to lose passion for his or her work preparation will suffer, corners will be cut, and quality will suffer.

April 21, 2008

Indiana Applies Res Ipsa Doctrine in Fire Case

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

Indiana is not known as a particularly progressive state when it comes to tort law (or anything else for that matter).

But not even Indiana could deny a plaintiff the use of the res ipsa doctrine when the plaintiff caught on fire during surgery.

You read that right.

April 18, 2008

New Study: Rollovers and Roof Cruch

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

Vehicle rollovers result in a significant number of fatalities every year, and there has been a vigorous debate about the roll that roof strength plays in those deaths.

Now, a new study from the Insurance Institute for HIghtway Safety reveals that stronger roofs would save lives. The study concludes as follows:

"Increased vehicle roof strength reduces the risk of fatal or incapacitating driver injury in single-vehicle rollover crashes. This finding contradicts those from two previous studies on the topic, but the present study more tightly controlled potential confounding factors. The study focused on midsize SUVs, but there is no obvious reason similar relationships would not be found for other vehicle types, although the magnitudes of injury rate reductions may differ. Any substantial upgrade to the FMVSS 216 roof strength requirement would produce reductions in fatal and incapacitating injuries that substantially exceed existing estimates."

April 16, 2008

What It Takes To Be A Great Trial Lawyer – Part 12

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

The ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.

Things change in litigation. For example, as mentioned in a least one previous post in this series, almost every deposition changes the value of a case. But there are many other things that impact the value of a case as well.

A personal injury client who forgets or lies about past medical or litigation history can cause severe damage to his case. A corporate defendant in a wrongful death case changes the landscape of the litigation if it is caught hiding or destroying documents. The commercial litigant may have its case hampered by a disgruntled former employee. And so on.

April 14, 2008

Controversial Malingering Test

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

One of my favorite publications, Lawyers USA, has an interesing article about a new test which allegedly determines whether a personal injury plaintiff is malingering. It is called the "Fake Bad Scale."

The article says that "[a] leading critic of the test, Dr. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and "greatly overestimates" malingering."

Read the article here.

April 11, 2008

Medicare Deaths

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

"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website. The article notes that (a)"of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable," and (b) "if all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved."

Here is a copy of the HealthGrades press release. It includes this interesting remark: "We now have convincing case studies that perfection is possible when will to change and improve is present and the effort is made to implement new practices. While these examples illustrate that we have a much clearer idea of what we need to do, formidable barriers remain. Many in the industry continue to deny that truly safe care is achievable, thus the status quo continues, resulting in variation in patient safety in U.S. hospitals that is large and unpredictable. Numerous studies, including the 2007 AHRQ National Healthcare Quality Report (NHQR) assessing the state of hospital quality and patient safety, conclude and support the findings the progress remains modest and variation in healthcare quality remains high.”

April 9, 2008

What It Takes To Be A Great Trial Lawyer – Part 11

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

The Courage to Tell The Client the Truth

Many clients don’t want the truth. A number of them want re-assurance that they are "right," regardless of the reality of the situation. Others demand to know that, at the end of the day, they will prevail. And some will fire or lose confidence in a lawyer who doesn’t give them what they want.

Great trial lawyers do not allow the desire to be employed in a given case, the desire of the client to hear only positive things (even if they have no basis in fact or law), or the fear of confrontation to trump their knowledge and experience. Great trial lawyers tell the client the truth – whether the client wants to hear it or not.

April 7, 2008

Important Comparative Fault Case to Be Argued in May

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

The Tennessee Supreme Court has announced that it is going to hear oral argument in a very important case on Wednesday, May 7th, 11:00 a.m. in Knoxville. The case is Tennie Martin et al. v. Norfolk Southern Railway Co. et al. (Franks, author) (Susano, dissenting) – E2006-01021-SC-R11-CV. The issues are:

1. Whether the Court of Appeals’ majority erroneously affirmed the summary judgment granted to the Respondents where it relied on contributory negligence cases and did not analyze the parties’ comparative fault under Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

2. Whether the Court of Appeals’ majority erred by concluding that there were no genuine issues of material fact in determining that the decedent was more than fifty percent at fault.