Day on Torts

December 28, 2005

Ex-Lawyer in Kentucky Makes a Living With Newsletters

Here is an article about an unusual former lawyer with an interesting way of making a living.

Here is how the author describes newsletter-publisher Shannon Ragland: “Similar verdict reviews are published in dozens of other states, but what sets Ragland’s apart is his background — he’s a disbarred lawyer and convicted felon — and the fact that he adds his editorial 2 cents, teeing off on lawyers and judges alike for what he describes as strategic blunders, defective reasoning and deceit.”
It just goes to show you that there is always a way to make a buck.

Thanks to Keith Williams for sharing this article with me.

December 27, 2005

Bone Harvesting

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

Here is an article about some conduct alleged to have occurred in New Jersey which, if true, is going to give rise to some strong emotional distress claims.

The article tells us that certain people who received bone transplants have alleged that the bones “were pilfered from cadavers and sold without the consent of the deceaseds’ families or the protective screening required by law, leaving recipients exposed to risk of infection with HIV, hepatitis and syphilis.”

Suits have also been filed by families of the cadavers, alleging emotional distress for taking the bones without consent.

December 26, 2005

Suit Against Expert Fails

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

Plaintiff was injured in a car wreck. She brought an uninsured motorist claim and was subjected to a psychological evaluation at the insistence of her insurer. The evaluator “testified that he believed that Gilbert experienced actual pain relating to the 1994 accident, but that a personality disorder complicated the pain and caused Gilbert to over-report symptoms. He concluded that while Gilbert did not have a major psychiatric disorder, she did have a histrionic personality disorder with narcissistic features that causes her to exaggerate and magnify the degree . . . of pain that shes in and to magnify the degree of disability that she has.”

Plaintiff lost that case and then filed one against the evaluator.

The Alaska Supreme Court affirmed dismissal of the suit, holding that the evaluator’s testimony was privileged. It said that”[t]estimony in a judicial proceeding, if pertinent to the matter under inquiry, is absolutely privileged, even if given maliciously or with knowledge of its falsity. Even defamatory testimony is privileged, and the witness granted immunity, because of the public policy rationale that the privilege leads to more just trials by (1) encouraging more witnesses to come forward and (2) ensuring that witnesses will be more open and honest in testifying.” (Footnotes omitted.)

December 25, 2005

Perfect Christmas Gift

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

What is the perfect Christmas gift for someone who loves the law of torts?

The original Restatement of Torts, published in 1934. My wife found a set for me on EBay.

The comments are full of examples concerning steamships and railroads. It is a real pleasure to see how the law has changed over the past 75 years.

December 25, 2005

Merry Christmas

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

May you and your family enjoy a wonderful Christmas and have a safe and healthy 2006 – and beyond.

December 23, 2005

Anti-Consumer Vaccine Legislation Passes

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

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.”

December 22, 2005

Howard Nations’ Paper

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

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.

December 21, 2005

Jailed Plaintiff Answers the Call of Nature – And Falls

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

“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.

December 20, 2005

Reject Letters And Things That Go Bump In The Night

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

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.”

December 19, 2005

Oral Fee Split Upheld

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

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.”