Day on Torts

January 10, 2008

What It Takes to Be A Great Trial Lawyer – Part 4

A Great Trial Lawyer Takes Time to Think

It is easy to get lost in the daily grind of litigation. The phone constantly rings. The computer’s “ding” tells us that another email has arrived. Each piece of mail brings another task and another deadline. Each fax brings bad news, especially those faxes that arrive after hours.

It is easy to fall into a reactive mode and then find yourself scrambling to do what you should have done long before. Deadlines get extended or outright missed. Interrogatory answers are incomplete. Your opponent’s ridiculous objections to discovery go unchallenged. You think about the need for a particular type of expert later than you should and end up using the only one you can find because the “good” ones are too busy to work on a short time-table. Your failure to follow a scheduling order results in your client’s case being continued to a date six months later, and then she gets in another car wreck and injures the same body part. And so on.

January 9, 2008

Check A Little Later

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

I have an early morning meeting and won’t be able to post until closer to Noon. Check back later for another in the Great Lawyer series.

January 7, 2008

Evidence of Settlement

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

T.C.A. Sec. 29-11-105 (b) says as follows: "No evidence of a release or covenant not to sue received by another tort-feasor or payment therefor may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater."

Does this prohibit a defendant from introducing evidence of a settlement with another defendant but permit a plaintiff to do so (at plaintiff’s option)? If so, can the plaintiff introduce the fact of settlement, the amount of the settlement, or both?

January 3, 2008

Savings Statute for Dismissed Federal Court Actions

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

T.C.A. Sec. 28-1-115 gives a plaintiff who is bounced out of federal courts for lack of jurisdiction one year from the dismissal to re-file the action in state court.

Here is the exact text of the statute: "Notwithstanding any applicable statute of limitation to the contrary, any party filing an action in a federal court that is subsequently dismissed for lack of jurisdiction shall have one (1) year from the date of such dismissal to timely file such action in an appropriate state court."

January 3, 2008

Better Looks = More Money? For Lawyers?

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

The Economist reports about a new study that links physical appearance and income.

The article says that " a series of surveys in the United States and Canada [show] that when all other things are taken into account, ugly people earn less than average incomes, while beautiful people earn more than the average. The ugliness “penalty” for men was -9% while the beauty premium was +5%. For women, perhaps surprisingly considering popular prejudices about the sexes, the effect was less: the ugliness penalty was -6% while the beauty premium was +4%."

But there is more: "The difference also applies within professions. Dr Hamermesh [the author of the study] looked at the careers of members of a particular (though discreetly anonymous) American law school. He found that those rated attractive on the basis of their graduation photographs went on to earn higher salaries than their less well-favoured colleagues. Moreover, lawyers in private practice tended to be better looking than those working in government departments."

January 1, 2008

LImit on Number of New Trials

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

Did you know a litigant is limited to no more than two "new trials" in any action?

The relevant statute is T.C.A. Sec. 27-2-101. Here it is:

"Not more than two (2) new trials shall be granted to the same party in an action at law, or upon the trial by jury of an issue of fact in equity."

January 1, 2008

Off Topic – The Bush Administration’s Dumbest Legal Arguments of the Year

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

Dahlia Lithwick at Slate has selected the Bush Administration’s Dumbest Legal Arguments of the Year.

The list stopped at ten arguments; the writer was obviously working with a severe space limitation.

Here is an excerpt from the article:

December 29, 2007

Damages Cap Denies Doctor Claim for his Mother’s Death

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

Here is an interesting article from the LA Times that discusses the cost of caps.

December 28, 2007

What It Takes To Be A Great Trial Lawyer – Part 2

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

2. A Solid Knowledge of the Law of Evidence.

You have to know the facts. But mere knowledge of facts doesn’t do your client much good. You have to know how to get those facts before a factfinder. In other words, you need to understand the law of evidence.

The relative paucity of trials makes it difficult to keep current on the law of evidence. And simply keeping current on case law doesn’t do you much good – there are relatively few civil cases that discuss evidence issues. (Criminal law is another matter.)

December 27, 2007

Subjective Medical Findings

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

Did you know that there is a statute that expressly permits physicians to base their opinions on subjective complaints?

Here it is:

T.C.A.Sec. 24-7-115