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.
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:
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.
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.
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.
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.
The General Assembly has ratified changes to the Tennessee Rules of Evidence, Civil Procedure, and Appellate Procedure.
Here is the Order setting forth the rules changes for the TRE, TRCP, and TRAP.
The most significant change for tort law practitioners is the change to TRCP 59.07. This language will be added to the end of the current language: "A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury for any of the reasons for which new trials have heretofore been granted." The new comment provides that "[m]otion for new trial grounds have been governed by case law. A helpful list can be found
in Professor Larry A. Pivnick’s treatise, Tennessee Circuit Court Practice §28:1 (Thomson West)."
The Paces, through their lawyer, hired Dr. Swerdlow to testify in a wrongful death case they filed on behalf of their daughter. Allegedly, Dr. Swerdlow changed his testimony on the eve of trial and caused the court to dismiss their case.
The Paces sued their former expert, alleging that he lied about his credentials, was ill-prepared and changed his testimony because he was concerned that his peers would think badly of him. They alleged "allege that Defendant committed (1) professional malpractice, (2) fraud, (3) negligent misrepresentation, (4) breach of fiduciary duty, (5) breach of contract, (6) breach of the implied covenant of good faith and fair dealing, and (7) negligent infliction of emotional distress." The doctor maintained he changed his opinion because of new information he learned about the case in a deposition taken by the defense.
The District Court dismissed the case on a causation issue, and the 10th Circuit Court of Appeals reversed in this opinion. The case has been remanded to determine, inter alia, whether the expert is entitled to a privilege under Utah law. The concurring and dissent judge goes into on the non-causation issues and argues that the case should be dismissed on other grounds. His opinion starts on page 18 of the hyperlinked opinion. A snippet: "Allowing this claim to march along sends the message to would-be expert witnesses: Be wary – very wary – of changing your mind, even when doing so might be consistent with, or compelled by, the standards of your profession."
The Willingness and Ability To Delegate.
It is not impossible to be a great trial lawyer on your own, with no help from anyone. But I don’t know one.
At a minimum a great trial lawyer needs an extremely competent secretary, one who can think for the lawyer and keep that plates spinning when the lawyer is otherwise occupied.
A story that is of no surprise to anyone who knows anything about human beings … except a decreasing number of doctors and hospitals.
