Day on Torts

April 28, 2006

Death of Charlie Williams

A great man and a great trial lawyer died on April 27, the day before his 62nd birthday.

Charlie Williams was a true believer in “the cause.” He used his passion for the law to help people in need. He cared about his community and served on many boards and commissions to improve the world around him.

I last spoke with Charlie two weeks ago Thursday afternoon. He called about an issue he had with a case and that grew in to a conversation about the state of our nation. The conversation ended with a discussion about his wonderful daughter and law partner, Annie B. Charlie was (rightfully) proud of his daugher; his face would glow whenever her name was mentioned.

April 27, 2006

“Error of Judgment” Rule in Legal Malpractice Cases

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

The Kentucky Supreme Court has recently modified the law concerning the application of the “error of judgment” rule in legal malpractice cases.

In Equitania Insurance Conmpany v. Slone & Garrett, P.S.C., 2003-SC-1003-DG (2/23/06). The Court described the case as follows: “This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that she negligently advised them during the midst of the shareholder dispute. They claim that Garrett negligently failed to properly advise them as to how to retain control of the corporation; that the methods she advised violated the insurance code ; violated a fiduciary duty to shareholders; was unethical, and was substantially more expensive.”

The jury was given this instruction:

April 27, 2006

Exxon Profits

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

For the quarter – $8,400,000,000

Per day – $93,333,333

Per hour – $3,888,888

April 26, 2006

Smoke Detectors

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

What happens when your smoke detector fails to work?

Plaintiffs bought two smoke detectors for their home. According to The Business Review, “The detectors at issue were ionization type smoke detectors that sense high temperature, fast moving fires, as opposed to detectors employing photoelectric cells which are better at detecting smoldering fires, like the one which apparently killed” two members of the the plaintiffs’ family. “A photoelectric smoke detector would detect the smoke from a fire 15 minutes earlier than the ionization type …”

“During the trial the jury heard from witnesses who testified that the company was aware of the shortcomings of the ionization only detector but continued to market the product instead of selling only dual detectors. The dual detectors cost from $20 to $25 while the ionization only types sell for $10 to $15.”

April 26, 2006

Vioxx – What Merck Should Do Now.

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

An analysis by Forbes.

The title says it all: “Merck’s got to keep fighting.”

April 25, 2006

Discretionary Costs

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

The Tennessee Court of Appeals has ruled that deposition videotaping expenses (and the cost of synchronizing the deposition with the written transcript) are not recoverable as discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure.

The case is Parker v. Brennan, No. M2005-01376-COA-R3-CV (April 19, 2006).

The Rule should probably be amended to allow the successful party to recover the lesser of the court reporter charge or the videographer charge. Why? Because you do not have to use a court reporter to capture testimony at a deposition; the video counts as the official transcript. Therefore, a party that elects not to have a court reporter present and to rely on the video transcript should be able to recover the cost of the videographer.

April 24, 2006

Keeping Up With Dates

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

Missing deadlines is something that can happen to anyone. This legal malpractice case, against the Baker Donelson firm, demonstrates what can happen when an important deadline (filing notice of appeal) is missed.

April 24, 2006

Tongue Tied?

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

Do you ever get that feeling that you just can’t get the words from your brain to come out your mouth – correctly?

You are not alone.

Thanks to The Wall Street Journal Law Blog for telling me about this story.

April 22, 2006

More from Steven

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

Steven and I have been having a discussion – it started here. Here is his latest missive:

“My mistake, I did not mean to state that this particular lawyer(s) was sleazy, but that the trial bar in general is sleazy. I will admit that there must be some decent trial attorneys just as there are bad doctors, cops, judges, etc.

As for your comment about doctors and EtOH, drugs, etc., it is true that many docs have problems, but experts and studies have shown that the last thing in their life they let go is often their career. This is probably true for most professions as well. Plus, I would never call someone with a disease sleazy, that would be “shallow.”

April 21, 2006

Amounts of Settlement Not Discoverable

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

The Arizona Court of Appeals has ruled that the amounts of settlements made by doctor in other cases are not discoverable in another medical malpractice action against him.

The case is Miller v. Kelly; it is reported at 130 P.3d 982 (Ariz. App. 2006).

The Court held that “the amount paid in settlement of a claim establishes neither negligence nor gross negligence” and that the information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The Court noted that “[p]ermitting disclosure of amounts paid in settlement of a lawsuit contrary to an express provision ensuring the confidentiality of that information likely would discourage parties from settling. And disclosure of that information poses the risk that conclusions will be drawn about the paying party’s culpability and the degree of culpability based on the fact that payment was made and the amount.”