Day on Torts

April 4, 2008

What It Takes To Be A Great Trial Lawyer – Part 10

The Ability to Organize

Great trial lawyers spin plates. Lots of plates. (Those of you who do not remember "The Ed Sullivan Show" may not appreciate this metaphor. Learn about it here.) Law firm management requires time. Training of associates and others requires time. Bar associations require time. Families require time. And then those pesky clients ….

Thus, a great trial lawyer uses his or her best efforts to be efficient. This is particularly true in a contingent fee practice (other things being equal the efficient lawyer receives more money for less work) but is also true in a hourly billing practice (great trial lawyers work to maximize efficiency to lower client costs). Part of being an efficient lawyer is the ability to organize or, at a minimum, recognize the lack of strength in this area and thus possess the willingness to allow another to organize for you.

April 2, 2008

ABA Civil Trial Standards

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

The American Bar Association has released four additions to its "Civil Trial Standards." The new standards addresss these topics: Use of Tutorials to Assist the Court, Summary Exhibits and Witnesses, Organizing the Complex Case for Trial, and Judicial Involvement with Settlement.

Some of the earlier standards (Juror Notebooks, Juror Questioning of Witnesses, etc.) have found their way into our rules of civil procedure.

From the ABA: "The Standards fill an important gap. They recommend procedures and otherwise furnish guidance that is not available elsewhere and are designed to foster and ensure a fair trial in both state and federal court. Critics of the jury trial have questioned the ability of jurors to decide complex cases fairly. The procedures recommended in the Civil Trial Practice Standards are particularly useful in complex cases and provide jurors the tools they need to come to fair decisions in all cases."

March 31, 2008

What It Takes To Be A Great Trial Lawyer – Part 9

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

The Ability to Pull the Trigger

Trial lawyers a required to make a large number of decisions. Some are minor (e.g. do I ask this interrogatory in this case?) and some are major (e.g. should I settle with one of multiple defendants in a case in which several liability applies?).

Great trial lawyers have confidence in their judgment and know that, after due consideration of the relevant factors, their decision will usually be right. They know that even if their decision is wrong that most problems that arise from that decision can be fixed and, if the original issue is such that an erroneous decision cannot be fixed, more caution is required in the decision-making process (but a timely decision must still be made).

March 28, 2008

Evidence Article

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

Regular readers know that one web site I frequent is that of the Federation of Defense and Corporate Counsel. Its "Hot Cases" section frequently has cases from other jurisdictions that I find interesting and its quarterly magazine has articles I enjoy reading.

Here is an interesting article that discusses how to introduce electronic data into evidence. It is written by Seth Gausnell and Allison Stoll of St. Louis.

At a minimum, the article reminds us of the simple fact that we must not only gather evidence during informal and formal discovery but we must be able to get that evidence before the fact-finder. Sometimes that task is easy, such as when the witness actually saw an event occur. Other times, it is much more complicated.

March 26, 2008

Nursing Home Relief Act Pulled By Industry After Release of Tort Report

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

Tennessee ranks 12th of the 50 states on the U.S. Tort Liability Index. The list measures the tort climate from the standpoint of the business and insurance community, so a rank of "1" is a pro-business, pro-insurance company state and a rank of "50" is that dark, dreary place inhabited by jurors who are anti-gun, anti-life, pro-child pornography, tree-hugging communists (hereinafter referred to as "liberals") and the greedy, scum-sucking trial lawyers who love and manipulate them.

North Dakota ranks first. Florida ranks fiftieth. North Carolina, Virginia, and Mississippi each have a higher rank than Tennessee; the other southern states rank lower.

In terms of "litigation risks" Tennessee has the best pro-industry ranking in the country (doesn’t that give you a warm, fuzzy feeling?).

March 24, 2008

Use of Demonstrative Aids At Trial-Revisted

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

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)? Here is a statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury…." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes a "similar device" in the 21st century. Therefore, if you get an objection like "she can’t use that Powerpoint presentation – its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

March 21, 2008

Case Selection

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

I have written on the subject of case selection on this blog in the past. Here is a link to an article on the subject that I had published recently in Trial magazine. (Available only to AAJ members).

I gave a speech on this subject recently in Memphis and generally received excellent reviews. However, one attendee blew me out of the water, basically saying that I was trying to turn the law into a business.

Let me respond here (and I have no choice, since the evaluator was anonymous).

March 19, 2008

South Carolina Opens Door to Negligent Hiring Claim

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

The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.

In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence. As the Court explained, "[a] plaintiff may, in a single lawsuit, assert many causes of action against a defendant. The considerations limiting a plaintiff’s available causes of action in the typical case are that the plaintiff must be able to demonstrate a prime facie case for each cause of action and that a plaintiff may ultimately recover only once for an injury."

The opinion also gives a nice summary of the common law of negligent hiring, training, supervision, or entrustment: "in circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. See Restatement (Second) of Torts § 317 (1965) (Cited with approval in Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992))."

March 18, 2008

State Found Liable For Beating on UT Campus

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

The Tennessee Court of Appeals has affirmed an en banc ruling of the Tennessee Claims Commission and ruled that the the State was liable for damages suffered by a college student as a result of being beaten after she left a parking garage on the University of Tennessee campus.

To reach that result, the Court first held that the McClung decision was applicable to the State of Tennessee. The Court then examined the evidence and determined that the plaintiff met the burden of proving that "(1) that there was a negligently created or maintained dangerous condition on state controlled real property; (2) the risk was foreseeable; and (3) that notice was given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures." Finally, the Court found that legal cause was present under the facts.

The decision is a nice reminder of what a plaintiff must prove to impose liability on a premises owner for failure to guard against criminal conduct by third persons. Read the opinion here.

March 13, 2008

Back from Trial

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

It’s over.

Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008. Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago.

Ginger was a diabetic who suffered from end-stage renal disease. She had several other health problems (pulmonary hypertension, obesity, sleep apnea, oxygen dependent lung disease, etc.) that resulted in a life expectancy of about 6.8 years. She was determined to be totally disabled two months before her death. Therefore, we were unable to make any claim for economic loss. We elected not to make a claim for funeral expenses or pain and suffering and sought damages for Jessie solely for loss of "love, society and affection" under Jordan v. Baptist Three Rivers Hospital.