May you and your family enjoy a wonderful Christmas and have a safe and healthy 2006 – and beyond.
Anti-Consumer Vaccine Legislation Passes
The President will sign a budget bill containing a provision for immunity for manufacturers of certain vaccines. I cannot track down the legislation itself but here is an ATLA summary of it:
“The liability provisions allow the Secretary of HHS to declare that a drug, device, or vaccine is a covered countermeasure for a pandemic, epidemic, or potential public health emergency. Once a product is covered, the manufacturer is provided immunity for even reckless misconduct. The bill does not even provide a compensation fund for injured patients. Instead it established a compensation process, but appropriates no funding to provide compensation for those who are injured.”
Howard Nations’ Paper
Those of you who attend ATLA conventions probably know Howard Nations. Howard is a Vandy Law grad who practices in Houston. He is a frequent speaker at ATLA programs.
This is a paper he wrote called ?Shakespeare’s Tribute to Trial Lawyers.” Read it and feel good about what you do.
Thank you, Howard.
Jailed Plaintiff Answers the Call of Nature – And Falls
“If you have to go to the bathroom, you have to go, water on the floor or not.” That comes to us from Judge Susano, writing a concurring opinion in a new slip and fall case out of East Tennessee.
The incarcerated plaintiff got up at 1:00 A.M. to use the bathroom, slipped and fell and was seriously injured. He alleged that he fell because of water that was leaking into and accumulating on the floor in the room he was confined. There is no doubt: both the Defendant and the Plaintiff knew the water was there. The trial judge split the fault 50-50, but the Court of Appeals reversed, holding that the County was 100% at fault. The Plaintiff knew about the water but, in the words of Judge Lee the plaintiff “had little, if any, choice in encountering the risk of walking on a wet floor, a dangerous condition caused by the action of the Defendants. Obviously, [Plaintiff] had no choice but to remain in his cell and could not
voluntarily leave the premises.” Read Judge Lee’s majority opinion here.
Judge Franks dissented, holding that the evidence supported a 50% fault allocation on an assumption of risk analysis.
Reject Letters And Things That Go Bump In The Night
It is a good idea to write a reject letter to a potential client when you turn down a case. A good number of lawyers tell the receipent of the letter something about the statute of limitations on the particular claim in such a letter. This decision reminds us why we need to be careful when we do so.
A Chicago law firm rejected a wrongful death claim and advised the potential client that the statute of limitations was two years. In fact, it was one. The letter concluded as follows: “Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate’s legal rights may be fully protected. Do not delay.”
The receipent sought the advice of another attorney within the applicable one-year period; that attorney had one meeting with the client and then rejected the case. His reject letter said this: “Please be advised that all lawsuits are limited by a period prescribed by statute. You need to have your daughter’s case filed within the applicable limitations period. If you do not do so, you may lose whatever rights you have to recovery.”
Oral Fee Split Upheld
The high court of Massachusetts upheld a lower court decision that found and enforced an oral fee-splitting arrangement between two lawyers. The lawyer who refused to share the fee claimed that the agreement was not only not it writing but was not agreed to by the client (which is also required in Tennessee).
The Court held that the requirement of client approval was to protect the client, not a breaching lawyer. The agreement was upheld.
The Court also announced this rule for future cases: “the referring lawyer, who usually is in the best position to secure compliance with rule 1.5 (e), is required to disclose the fee-sharing agreement to the client before the referral is made and secures the client’s consent in writing. The rule will be construed to require this in fee-sharing agreements that are formed after the issuance of the rescript in this decision. Although the primary responsibility for compliance will fall on referring lawyers, lawyers to whom referrals are made are not absolved of all responsibility, and should confirm, before undertaking such representations, that there has been compliance with rule 1.5 (e). We emphasize that although failure to comply with the rule may not necessarily render a contract unenforceable between lawyers, it may subject both lawyers to disciplinary action upon division of a fee.”
Mistried Federal Vioxx Trial Re-Set
The federal Vioxx case that was mistried earlier this month has been set for a second trial on February 6, 2006.
Read more here.
Guest Sunday Spoof
Locked Nest Mobster
By
Howard H. Vogel
Guest Spoofer
Nashville, Tennessee – December 18, 2005
Anonymous sources high up in the Bredesen administration announced today a break through in the Food for Tickets investigation that spans the administrations of four Tennessee governors. In a recent raid upon a locked janitors closet at a Department of Safety facility in Nashville, an elderly and morbidly obese highway patrol officer was found amid hundreds of traffic citations and acid reflux medication bottles.
Legal Writing Guide
Here is a e-book written by Judge Mark Painter in Ohio. The book is called “Legal Writing 201” and it contains 30 rules that will help you write for, not like, a judge. (That is what the sub-title says, I promise.)
Thanks for the lead from Appellate Law and Practice.
Florida Supreme Court Decides Fee Waiver Issue
As I have mentioned in some past posts (the most recent one can be read here) the voters of Florida passed a constitutional amendment one year ago that severely limited the amount of attorneys’ fees in medical negligence actions. Lawyers who believed that a case was valid but who could not afford to prosecute it then asked clients if they would waive the fee cap and, presumably, had them execute a knowing, valid waiver.
Some lawyers with ties to the medical industry then asked the Florida Supreme Court to order that the Florida Bar adopt a ruling prohibiting such conduct.
The Florida Supreme Court ruled Wednesday. It held that an attorney must advise a potential client of the fee cap and that a client may knowingly and voluntarily waive the cap. It directed the Florida Bar to adopt appropriate rules. See the Order here.