The Tennessee Supreme Court has ruled that an arbitration provision in a nursing home contract signed by a person who had a power of attorney to act on behalf of the resident is not void as against public policy.  However, the court remanded the case to the trial court for a determniation of whether the inclusion of the provision was an unconscionable contract of adhesion.

Justice Holder wrote the opinion for the Court.  Here is a summary of the holding:

"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the  intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the  ground that a material term of the agreement is incapable of performance. We likewise affirm the  Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further  hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as  against public policy. In addition, we affirm the intermediate appellate court’s holding that the  agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement  breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable  contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate   court’s instruction to the trial court to enter an order compelling arbitration."

Do you document substantive conversations with other lawyers?  Once upon a time, it was unheard of to do so and some felt it was downright offensive.   A lawyer can and should be trusted to stick by an understanding that is reached with another lawyer, the theory went, and to confirm a conversation in writing was a sign of mistrust.

Of course, there has always been and will always be lawyers who cannot be trusted.  I know a few.  You know a few.  They are the scum of the profession,  who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).

Today, however, I think a quick note or email confirming a substantive conversation is a good thing – one that avoids the chance of innocent misunderstandings in the future.  My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.

My new book – Day on Torts:  A Handbook for Tennessee Tort Lawyers – was delivered yesterday (November 5).  It was promised for last week, but there were apparently some difficulties in the shipping process. 

The project started about eight months ago and the book was delivered within ten days of the original target date.  The printer did a great job getting the book out in a timely fashion despite an unexpected glitch with the texture of the copper band on the cover. 

The reason for the "thank you" is that a good number of you have already placed an order for one (or more) books.  We shipped twenty-five books yesterday and will ship about that many tomorrow.  Orders continue to arrive via www.dayontortsbook.com.

A new report issued by the Tennessee Department of Commerce and Insurance re-affirms what everyone in the state knows:  further restrictions on patient rights are not necessary in Tennessee.

The doctors (and occasionally the hospitals) have beat the tort reform drum for over thirty years, seeking further restrictions on the rights on patients to bring malpractice claims.  They launched an attack on Justice Holder’s re-election effort.  They write op-ed pieces, talk to their patients, spend hundreds of thousands of dollars on political contributions each legislative cycle, and employ more and more lobbyists – all to get the Legislature to give them even more special treatment in the courtroom.

The legislative effort has failed to date, but the jury pool has been contaminated.  Those of us who handle medical malpractice cases know this from our experience, but a new report from the Department confirms that experience.

I think you will enjoy this article from the on-line version of the Fayetteville, North Carolina newspaper.   A few excerpts:

"Annual statements of Medical Mutual Insurance Co. of North Carolina filed with the N.C. Department of Insurance from 2001 through 2006 were studied and evaluated by former Missouri Insurance Commissioner Jay Angoff and some of his findings are:

Underwriting gain — the amount they earned on their insurance business — was up by 948 percent in only two years, from $2.1 million in 2004 to $22 million in 2006.

Here is an interesting article written by Mark Berman that I found on Law.com.

The first few paragraphs:

"Electronic discovery, even more so than traditional paper discovery, offers the opportunity to burden unduly an opposing party with overbroad discovery requests, and three recent New York State court decisions have addressed over-reaching document requests seeking electronically stored information (ESI).

The book website is up and running —  www.dayontortsbook.com.

Several people received advance copies of the "selected cases" portion of the book and were kind enough to write down their impressions for me to use in a brochure that you will receive any day now.  Those comments are as follows:

 

"John Day’s new book is the most in-depth, comprehensive and thorough analysis of Tennessee tort law compiled in years. Every practicing lawyer should have one!"
                                                                                                         Sidney Gilreath, Knoxville

General Mills Operations, a Wellston, Ohio, establishment, is voluntarily recalling approximately 3.3 million pounds of frozen meat pizza products because they may be contaminated with E. coli and may be linked to an outbreak of E. coli O157:H7 illnesses, the U.S. Department of Agriculture’s Food Safety and Inspection Service announced today.  Eight cases have been reported in Tennessee.

The products involved include the following:

10.2-ounce packages of "Totino’s The Original Crisp Crust Party Pizza Pepperoni."

This is an update on my new book, Day on Torts: A Handbook for Tennessee Tort Lawyers.

The book has been printed and is being shipped today from Florida.  I will have it Friday afternoon.  I already have orders for the book and will start shipping on Monday.

The new website, wwwdayontortsbook.com, will up and running on Thursday, November 1, 2007.  The book can be ordered on this web site.  You can also see a Table of Contents and sample chapter at the site.

The risks  of pushing through the envelope at trial are discussed in this opinion from the Ohio Supreme Court:

"In addition to the excessive damages given under the influence of passion or prejudice, the trial court detailed the misconduct of McLeod’s counsel. Civ.R. 59(A)(2). The court described counsel’s conduct as “discourteous” and “theatrical,” including “constant interruption of opposing counsel without bothering to object and obtain a ruling” so that he could “convey to the jury his own idea of what the witness should be saying, thus testifying for the witness, rather then [sic] making a genuine and valid objection to the question.” These interruptions, for example, included statements such as “This is all made up,” and “where did he come up with that, Judge?” and were asserted with no accompanying objection. This type of conduct became so prevalent that the trial
judge admonished counsel during a conference outside the presence of the jury."

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