Day on Torts

July 14, 2005

Hot Case!!!!!!!!

The Wisconsin Supreme Court has ruled that the State’s $350,000 cap on non-economic losses is unconstitutional under the State’s equal protection clause.

An excerpt: “The court must presume that the legislature’s judgment was sound and look for support for the legislative act. But the court cannot accept rationales so broad and speculative that they justify any enactment. “[W]hile the connection between means and ends need not be precise, it, at least, must have some objective basis.[Footnote omitted.] While we adhere to the concept of judicial restraint that cautions against substituting judicial opinion for the will of the legislature, we do not abdicate judicial responsibility. To hold that a rational basis exists for the $350,000 statutory cap on noneconomic damages in medical malpractice cases would amount to applying a judicial rubber stamp to an unconstitutional statute.”

More later – I have got to get to work.

July 13, 2005

Libel Case Involving Former Alabama Football Coach

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

Former Alabama football coach Mike Price is suing Time, Inc. for defamation because of a Sports Illustrated article that stated that he engaged in sexual conduct with several women in a hotel in Florida. Price was fired from his job.

There is a fascinating article on the front page of today’s WSJ about this case. Click here to read the article (registration required). My friend Steve Heninger from Birmingham represents Coach Price; he could not have a better lawyer.

July 13, 2005

If You Want to Write Fiction, Write a Novel

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

The only thing more frustrating than a lawyer who lies in memos and briefs is a judge who refuse to call down the lawyer that did it. Part of the judge’s job is to rein in people who knowingly misquote cases or misquote the evidence in cases.

I am not talking about lawyers who make an argument based on decision that could be distinguished by the dimmest dimwit in the Bar. That is poor lawyering, but it is not dishonest. And there is nothing wrong with taking the strongest view of the facts supported by the record, particularly if you are entitled to take that position under the case law.

I am talking about people who routinely insert material into memoranda of law and briefs that is not true. That will stop if judges are willing to call the offending lawyer down on it.

July 13, 2005

Florida Supreme Court – No Independent Cause of Action for Spoliation of Evidence

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

The Florida Supreme Court has held that a person may not file a spoliation of evidence lawsuit against an adversary who has lost evidence concerning his or her personal injury claim. However, the trial court may give an adverse inference instruction on the point. Read the opinion here.

This decision is consistent with the law of most jurisdictions.

Thanks to Abstract Appeal for advising us about this decision.

July 12, 2005

Brachial Plexus Injury Cases

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

Want to know how at least one defense lawyer plans on defending a brachial plexus injury case? Go to our Medical Malpractice blog.

July 12, 2005

When You Have A Little Time …..

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

Listen to Mel Gibson, Michael Douglas, and others read the Declaration of Independence for our listening pleasure.

Thanks to Dennis Kennedy for bringing this to my attention.

July 11, 2005

Problem Clients

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

Eighty percent of our fees are earned from contingent fees representing plaintiffs in personal injury and wrongful death cases arising from medical negligence, careless truck or automobile drivers, etc. The rest of our fees come from hourly work arising from commercial litigation or, occasionally, plaintiffs in personal injury cases who prefer to pay by the hour.

I say that to say this: client selection is a key to profitability and sanity in a trial practice. In a personal injury case, poor client selection can result in the loss of an otherwise good case. In a commercial case, a bad client can cause untold grief.

Here is a link to a post by Matthew Holmann under the title “Fire These Clients Now,” who in turn links to post from a software shop.

July 10, 2005

Seminar Opportunity

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

I mentioned this several months ago but here I go again.

Former Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I have started offered CLE programs in the Fall. We have expanded the program to allow you to earn all 15 hours of CLE in two days, including your 3 E & P hours. If you wish, you can attend just one day. In addition, we are having a 3 hour E & P program only in several cities around the state. Click here for the dates and the cities.

We had a great turnout last year and hope for an even better turnout this year. In addition to an unpdate on the law of torts and comparative fault I will be giving an extended lecture on the law of depositions. When you leave the seminar you will know what there is to know about law in Tennessee concerning taking depositions and use of them at trial.

July 10, 2005

Board Certification of Lawyers

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

Yes, there is a board certification for lawyers. For civil trial lawyers, the only national certification program is one offered by the National Board of Trial Advocacy. See the NBTA website here.

I am honored to be the Immediate Past President of NBTA and have served on the Board for many years. It is a fine organization, committed to helping consumers find a competent, ethical lawyer.

Read the standards for certification of a civil trial lawyer here.

July 10, 2005

A Question for the President.

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

What did the President know above Karl Rove’s role in the outing of Valerie Plame and when did he know it?

Rove was suspected early on but did not admit that he was a source. Instead, Rove played cute. Reuters says that “Rove has carefully chosen his words when questioned about the leak. ‘I didn’t know her name. I didn’t leak her name,’ he told CNN last year when asked if he had had anything to do with it.”

But Reuters reports that “the Newsweek article said an e-mail Cooper sent his bureau chief after briefly talking with Rove stated that ‘it was, KR said, Wilson’s wife, who apparently works at the agency on wmd (weapons of mass destruction) issues who authorized the trip.'” OK, I understand now, he didn’t link her name, he only leaked that the wife of Joe Wilson worked for the agency. I am sure that he thought Joe Wilson had dozens of wives and that our enemies would never be able to identify which one worked for the CIA.