Day on Torts

February 12, 2006

Funding for Plaintiff’s Lawyers

One of the significant problems with running a plaintiff’s practice is managing cash flow. Any fees earned are usually contingent fees, and cases are not always resolved in such a way and a such a time to meet professional and personal financial obligations.

There are at least four different ways to address this issue. First, you can visit your friendly banker and arrange a line of credit that you dip into went you need to meet payroll, significant expert expenses, etc. This is probably the most common way of handling the situation.

Second, you can do business with a company that provides funding for plaintiff’s lawyers. Here is an article describing what these companies do and what they charge. There are several different models out there and the interest rates for each of them are much higher than you would expect to pay a bank.

February 11, 2006

Shrimp Case Falls Short

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

You have undoubtedly heard about the claim against a Benihana restaurant where a man allegedly died because he was hit in the face by a shrimp. The jury did not hold the restaurant liable.

These were the facts according to the article at www.law.com: “On Jan. 27, 2001, Mr. Colaitis, his wife Jacqueline and his two sons and others went to the Munsey Park location of the popular eatery to celebrate one of the boy’s birthdays. According to testimony given by Ms. Colaitis, the sons, Christos and John Alexander, and at least two other members of the dinner party had been struck and burned by pieces of food tossed by the unidentified chef. After the second burning, Mr. Colaitis asked the chef to stop. Instead, the chef allegedly flung one more piece of shrimp at Mr. Colaitis’ head. Jerking away from it, he wrenched two vertebrae in his neck. He had the first operation six months later.” Mr. Colaitis later died, allegedly from complications of the neck injury.

The only thing my experience tells me about hibachi-style restaurants is that they never have a table until you have had at least one drink. Then, when you walk behind the curtain, there are lots of empty tables.

February 10, 2006

ABA Products Liability Seminar

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

Here is a PDF of the brochure of a seminar sponsored by the ABA titled “2006 Emerging Issues in Motor Vehicle Product Liability Litigation.”

The seminar will be held April 5 – 7, 2006 at the Biltmore in Phoenix.

February 10, 2006

Legal Malpractice Case Verdict

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

An insurance defense firm was hit with a jury verdict in a legal malpractice case last Thursday, February 2. 2006. The lawsuit arose after the now-plaintiff insurer got hit with an adverse verdict in a products liability trial.

The plaintiff in the malpractice action claimed that the underlying case was lost because the defense lawyer “spent woefully few hours preparing, failed to call critical witnesses and muffed chances to attack the plaintiff’s credibility.” More specifically, the evidence alllegedly “showed that [the defense attorney who actually tried the case] spent 20.5 hours preparing for the ladder trial, failed to elicit expert testimony that could have refuted the [original] plaintiff’s experts, failed to take advantage of expert testimony for defendants that got out on summary judgment and failed to exploit evidence that would have shown [the original plaintiff] to be a lying fraud.” In all, 21 errors were claimed.

I have seen some recent evidence of this kind of case as well. I sit on the Standards Committee for the National Board of Trial Advocacy and as part of my work on that committee I have to review lawsuits filed against board-certified lawyers. I just reviewed a big stack of them on Tuesday and can tell you that the type of lawsuits filed against lawyers are different today than they were just five years ago. Historically, the claims involved blown statutes of limitation, other missed deadlines and an occasional failure-to-disclose-conflict case. We now see more and more “strategy-related” claims.

February 9, 2006

Off to Phoenix

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

My wife and I are headed to Phoenix today, this time for for a Board of Directors meeting for the National Board of Trial Advocacy. I was in Boston for a committee meeting of the group two weeks ago; this meeting is our annual mid-winter meeting customarily held (surprise!) at a location with warm weather. Our annual meeting will be held in Seattle in July.

One of the items on the agenda at the meeting is the potential adoption of a new “civil litigation advocacy” certification. This certification, if adopted, would be available to lawyers with substantial experience in litigation but who lack sufficient experience to receive civil trial certification.

Recognizing civil ligitation as a speciality is controversial, but in my opinion there is a real need to recognize demonstrated competence for ethical lawyers who have a litigation practice but lack sufficient face time in front of a jury. I drafted the original set of standards for the proposed certification, but Barry Nace of Washington, D.C. has improved upon them.

February 9, 2006

Rollover Cases

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

Are you looking at a rollover case? ATLA has information that will help.

For example, the ATLA link says that “[n]ow public General Motors internal documents show that the auto industry knew as early as 1966 that their roof design was so weak that in rollover accidents it crushed occupants to death. They could have fixed this defect for as little as $43.13.”

There is more information about rollover cases here.

February 8, 2006

Restrictions on the Rights of Malpractice Victims Won’t Affect Me!

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

Many people – lawyers and non-lawyers – don’t worry about laws restricting the rights of victims of medical malpractice. Consumers tend to think that bad things happen to others and lawyers who do not do medical malpractice work are just glad that their practice isn’t being attacked.

Well, look at what is happening in Illinois. One year after restricting the rights of patients the GOP wants across-the-board tort reform.

February 8, 2006

Governor’s State of the State Address and Responsibility

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

Here is the text of the Governor’s State of the State Address.

You will note that the Governor did not call for restrictions on the right of patients to hold doctors and hospitals responsible for their negligence. This is a good sign. You can be assured that this was not missed by the doctors, hospitals and their insurers, and these special interest groups will be putting significant pressure on the Governor to get behind their efforts. And note that the Governor did say that he would be speaking with the Legislature “in a few weeks” about health care issues.

More specifically, he said this:

February 7, 2006

Two Vioxx Trials Underway -UPDATED

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

This news article informs us that a jury was seated in the re-trial of the federal court case mis-tried several months ago. The last trial of the case took place in Houston; this trial is in New Orleans. Here is an article about the events of the first day.

How will the actions of the New England Journal of Medicine impact the trial? That issue is dicussed in this article.

There is another trial under way in the Rio Grande Vally – this one is in state court.

February 7, 2006

Leave to Amend

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

Here is an interesting case out of the DC Circuit that warns us that an oral motion to amend is not appropriate in federal court and therefore it was not error to deny it.