Day on Torts

January 31, 2008

The “What It Takes to be a Great Trial Lawyer” Series

Here are the opening paragraphs of my December 15, 2007 post that gave rise to a series of posts that has garnered a good deal of attention:

I participated in a panel discussion at for the Young Lawyers Division of the Tennessee Bar Association on Friday and was asked this question: what does it take to be a great litigator?

I knew in advance that I would be asked that question and gave the matter a good deal of thought driving from Atlanta to Nashville Friday morning. My response seemed to go over pretty well so I thought that I would share the thoughts on this blog.

January 30, 2008

Lose the Evidence – Lose the Case

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

The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The Court quoted with approval this language from a court in Michigan: "In cases involving the loss or destruction of evidence, a court must be able to make such rulings as necessary to promote fairness and justice. To deny the courts the power to sanction a party in such circumstances would only encourage unscrupulous parties to destroy damaging evidence before a court order has been issued. Furthermore, regardless of whether evidence is lost as the result of a deliberate act
or simple negligence, the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence."

Presumably, a court could strike an answer and enter a judgment for the plaintiff if a defendant’s "destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

January 29, 2008

The State of the State Address

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

Governor Bredesen gave his State of the State address last night . He did not say that he had any desire to limit the right to trial by jury for any citizen against any defendant in any industry.

This comment scares the nursing homes: "My job is to open more doors to alternatives here in Tennessee. If you want to stay in your home, if it makes sense to do so, this is the year we’re going to start making it easier." Tennessee spends about $1B per year of its Medicaid money on nursing home care; even a 10% shift will have an impact on the cash flow on the facilities.

The facilities always argue that they lose money on Medicaid patients. Not true. It is true that Medicaid payments may not always cover the average cost of keeping a patient in a nursing home. The government’s goal, however, is for the payments to cover the marginal costs associated with keeping the Medicaid patients in the facilities and the payments usually do so.

January 29, 2008

Off Topic – Sentencing Criminals in Federal Court

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

A federal judge has written a "Top Ten" list taking issue with the United States Supreme Court opinions on the sentencing of criminal defendants. Read it here.

January 28, 2008

What It Takes To Be A Great Trial Lawyer – Part 6

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

6. Great Trial Lawyers Don’t Cheat

There are lots of opportunities to cheat in the practice of law. You can withhold information during the discovery process. You can improperly coach a witness or client. You can knowingly violate orders on motions in limine. You can knowingly violate the rules of evidence or the law of trial. You can mis-cite case authority or misrepresent facts to a trial judge or appellate court.

And sometimes cheating can help you win. A weak trial judge won’t call you down or impose sanctions. The victim of the improper conduct doesn’t discover it or discovers it too late. And when you start cheating and aren’t punished for it, you keep doing it, in part because it has worked for you in the past and in part because you are afraid that you will lose if you don’t. And you can’t stand to lose, or you wouldn’t have cheated in the first place.

January 25, 2008

Appellate Forms – And More

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

Did you that our appellate courts had forms to help guide you through the appellate court process?

This page at the Administrative Office of the Courts website has various forms relevant at different stages of the appellate process, inlcuding a sample brief cover page, a motion for extension of time, etc.

That being said, the recent decision in Range v. Baese reminds us of the importance of knowing and following the rules of appellate procedure. The Tennessee Court of Appeals reversed a grant of summary judgment because "multiple deficiencies in the record on appeal" did not permit it to reach the merits.

January 23, 2008

Videotaping of Rule 35 Exams

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

The Oklahoma Supreme Court has ruled that a plaintiff has a right to videotape a Rule 35 examination (often mistakenly referred to as an "independent medical exam").

The Court’s conclusion:

"Our decision to allow an examinee to videotape a court-ordered independent examination was foreshadowed by our decision in McCullough v. Mathews, 1995 OK 90, ¶¶1-2, 918 P.2d 25. In McCullough we recognized that the broad language of 12 O.S. 2001 §32352allows the examinee to bring a third party representative to a court-ordered independent examination. We also determined that in addition to handwritten notes, audiotaping by the examinee, which was incorporated into the statute by the 2001 recodification of §3235, would be allowed as a "condition" of the examination. While audio recording is capable of providing proof that the examination did not involve a malingering patient or a cursory examination, we now hold that a video recording may be a superior method of providing an impartial record of the examination. Accordingly, a party to a lawsuit who is required to submit to a medical examination pursuant to 12 O.S. 2001 §3235 is permitted to videotape the examination." [Footnotes omitted.]

January 22, 2008

Pushing Pills for Profit

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

This study in PLoS Medicine reports that, based on estimates from publicly available data, drug manufacturers probably spend more money on advertising than they do for research and development.

In the words of the study: "From this new estimate, it appears that pharmaceutical companies spend almost twice as much on promotion as they do on R&D. These numbers clearly show how promotion predominates over R&D in the pharmaceutical industry, contrary to the industry’s claim. While the amount spent on promotion is not in itself a confirmation of Kefauver’s depiction of the pharmaceutical industry, it confirms the public image of a marketing-driven industry and provides an important argument to petition in favor of transforming the workings of the industry in the direction of more research and less promotion."

This study makes it clear that it is using estimates to reach its conclusions. The manufacturers don’t report this data, so the authors had to take the limited available information and do what they could. Obviously, they could be wrong.

January 21, 2008

What It Takes To Be A Great Trial Lawyer – Part 5

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

5. A Great Trial Lawyer Maintains A Reasonable Caseload

In Part 4 we discussed the fact that great trial lawyers take time to think about their cases. And we mentioned that many lawyer argue that they don’t have time to think.

I suggest that there are only four possible reasons why lawyers don’t have time to think. First, a lawyer who doesn’t have time to think is not working hard enough. Alternatively, a lawyer who doesn’t have time to think has too much work. Third, it possible the lawyer has an appropriate caseload and is working an appropriate number of hours but is not operating efficiently. Fourth, a lawyer who doesn’t have time to think can be lazy.

January 18, 2008

Article on T.C.A. Sec. 20-1-119

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

The United States Court of Appeals for the Sixth Circuit released a decision several months ago that presents a real danger for plaintiff’s lawyers and their clients who seek to rely on T.C.A. Section 20-1-119 to avoid a statute of limitations defense.

The Tennessee Bar Journal published my article on the case. The article lays out the problems with the opinion and the case law you can use to try to convince a federal judge that the decision is plain error.

If caught in a trap, I would recommend bringing the case law I cite in the article to attention of the federal judge and asking the court to certify the question to the Tennessee Supreme Court.