Day on Torts

April 18, 2008

New Study: Rollovers and Roof Cruch

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.

April 4, 2008

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

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

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.