You have the smoking gun email. Now, what do you do with it?
The law of discovery, good old fashioned hard work and a little luck can lead to fantastic evidence. But great evidence in your briefcase doesn’t win cases at trial – you have to know how to get that evidence before the factfinder.
This article from www.law.com addresses how to get emails into evidence.
A judge responds in verse to a claim from a prisoner that he was not provided with a proper diet. The prisoner included a hard-boiled egg as an exhibit.
Thanks to Trial Ad Notes for informing me of the Order.
Pacman Jones, a true embarrassment to Nashville, the Titans, the NFL, and his family, has been sued for his alleged misconduct in Las Vegas which is said to have resulted in the paralysis of a man. I do not pretend to know the facts, do not want to take one second of my life to learn what they are, and therefore will not offer an opinion as to the merits of that case.
The lawyer for the plaintiff has also sued the Titans and the NFL for the incident. According to the Tennessean, "'[t]he fact that the NFL and the Titans did not punish Adam ‘Pacman’ Jones until after Tommy was paralyzed is a proximate cause of Tommy’s injuries,’ attorney Matthew Dushoff said before a news conference in suburban Las Vegas."
The incident did not arise at a football field. Or a team party. Or a locker room. It happened at a strip joint. In the off season.
The Tennessee Supreme Court has released its opinion in Health Cost Controls, Inc. v. Gifford, No. W2005-01381-SC-R11-CV (Tenn. S. Ct. Oct. 17, 2007). If the style of this case sounds you familiar you are not losing your mind – this case was before the Supreme Court on the made-whole four years ago earlier.
This time the case was before the court on the issue of whether the plaintiff was made-whole. The Supreme Court said this about the responsibilities of lawyers and judges in resolving this important issue in any particular case:
Trial courts should support their made-whole determinations with specific findings of fact regarding the monetary value of the injured party’s recovery from all sources and the monetary value of the injured party’s total damages. Furthermore, trial courts should make specific findings as to the value of each separate element of an injured party’s damages. Finally, if the trial court finds that the injured party has been made whole, reimbursement should be awarded to the insurer only to the extent that the injured party’s total recovery exceeds the injured party’s total damages. These requirements are necessary to ensure that the made-whole doctrine is consistently applied and to facilitate appellate review of made-whole determinations.
I know you remember the Feres doctrine. The Feres doctrine comes from the decision in Feres v. United States, 71 S.Ct. 153 (1950) and provides that soldiers cannot sue the government for injuries that they incur as part of their military service. Not surprisingly, the doctrine has been asserted by government contractors who do work for the military and who seek immunity for their actions.
In McMahon v. Presidential Airways, Inc., No. 06-15303 (llth Cir. Oct 5, 2007) the widows of three soldiers who died in airplane crash in Afghanistan sued the entities that owned an operated the plane. Feres was rasied as a defense, but it was not the sole defense. Here is the table of contents for the 72-page opinion:
I. Derivative Feres immunity
Negligence without causation is like a biscuit without country ham (or blackberry jam).
Now, I’m not so sure that juries pay as much attention to the concept as lawyers and judges, but causation is an element of every cause of action in the tort world.
This decision out of Michigan reminds us that causation must be proved in a legal malpractice case. The lawyer blew the deadline for filing a notice of appeal – clearly negligence – but was not found liable as a matter of law because the appeal was denied on the merits. Read the decision in McCabe vs. Miller & Associates, LLP, No. 275498 (MI. Ct. App. October 9, 2007) here.
Did you know that there is a cause of action for malicious harrassment in Tennessee?
The malicious harassment statute, Tennessee Code Annotated, section 4-21-701, provides: "(a) There is hereby created a civil cause of action for malicious harassment. (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages." Tenn. Code Ann. § 4-21-701 (1998).
The elements of the tort created by this statute were outlined by the Tennessee Supreme Court in Washington v. Robertson County:
Penny White, Joe Riley and I are on the road again with our 4th annual 15-hour seminar program.
Here is our schedule for each seminar:
First Day
To what extent are we our brother’s keeper? That is a constant question posed in cutting edge tort cases, and this case in Illinois is no exception.
Iseberg sued his two partners because they failed to warn him that a fourth partner, Slavin, had made threats against Iseberg’s life. Iseberg was a man of his word: he shot Iseberg and rendered him a paraplegic.
From the opinion of the Illinois Supreme Court:
I am at a meeting of the Members Consultative Group of the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm sponsored by the American Law Institute. The meeting is being held in Austin, Texas at the University of Texas Law School. We are discussing "Duty of Land Possessors."
Last night we had dinner at the Mansion at Judge’s Hill and I had the pleasure of sitting with Victor Schwartz, an editor of the torts case book that most of us used in law school and an active tort reformer. (Indeed, he is General Counsel to the American Tort Reform Association.) We had a wonderful conversation, agreeing on more things than both of us expected and politely disagreeing on other points. Victor has a great sense of humor and a real gift of imitating the voices of many political figures.
This morning we are debating the duty, if any, of landowner’s and possessors to trespassers and the exceptions to the historic general rule of no liability. I am enjoying the debate immensely – a lot of thought has been given to the issue by the drafters and the members who are present are raising some excellent points.
