Day on Torts

March 12, 2005

Legal Technology Blog

David Swanner, a lawyer in South Carolina, has a blog focused on the use of legal technology by trial lawyers. David’s blog has a lot of good information on Powerpoint, yet another great weapon that we can use when we go into battle.

David also has a guest post entitled “Twelve Ways Technology Can Make You a Better Trial Lawyer” that he made to another blog. It is filled with good ideas.

All of this demonstrates why technology and the Internet is changing law practice as we know it. When small firm lawyers are ready to share their ideas and invest in appropriate technology, the advantage that large firms have historically had dwindles.

March 12, 2005

Bad Faith Action Survives

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

We have all seen it too many times. Your client has legitimate medical expenses well in excess of policy limits. Liability is not clear but will go to the jury. The defendant’s insurer refuses to settle the case for policy limits.

That happened to defendant Johnson. His insurance company refused to settle an action against him. His $25,000/$50,000 in policy limits were to be of little help paying a judgment of $193,750. He sued his insurance company for bad faith failure to settle the case, and a jury agreed.

You know that Tennessee’s law on bad faith is, shall we say, undeveloped. Well, that is about to change. The verdict against the insurer was reversed, but all three judges found that a jury issue was present on the issue of bad faith. (Two of the three judges thought the verdict should be reversed on other grounds). Each judge wrote an opinion; Judge Inman wrote for the majority (if that is possible when each of three judges writes a seperate opinion). Read Judge Inman’s majority opinion here. You can also read Judge Franks’ opinion and Judge Lee’s opinion.

March 10, 2005

What is a “Tort Law Tidbit?”

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

Have you ever been presented with a legal question, thought you knew the answer, but could not put your finger on the case or statute that confirmed your recollection? I have, and it drives me crazy. I think I am right. I know the answer is out there. But I can’t confirm it.

My wife, also a trial lawyer, puts it this way: There are things that everybody just “knows” and finding support for those things is hard to do. That is fine, of course, unless what you know ain’t so.

So, I have decided to capture those “tort law tidbits” and put them where you can find them. I will add one every week or so, depending on what else is happening.

March 10, 2005

Tidbit #1 – Release of Agent

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

Everybody knows that if you release the employee you release the employer, right? Try to find a case that says so.

Well, here it is: Craven v. Lawson, 534 S.W.2d 653, 654, 657 (Tenn.1976). This case holds that release of an employee discharges employer’s liability predicated on master-servant or principal-agent relationship.

March 10, 2005

Medical Malpractice Crisis Not A Crisis At All

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

A study from Texas has determined that the medical malpractice “crisis” behind the push for restrictions on the rights of patients is phony, which is no news to anyone who understands the issue.

“We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states,” said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools.

The article tells us that “‘only a few states have comprehensive insurance databases like that of Texas,’ said David Hyman, one of the study authors, ‘but similar studies elsewhere have found nothing to indicate a link between litigation and rising medical costs.'”

March 9, 2005

Preparing for Trial Checklist

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

Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans’ Coliseum on a night game, you are not paying enough attention. It’s helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases – sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
Download file.

The checklist is not carved in stone. It is not a “must do” list. Rather, it is simply as list of the matters that you may want to consider in the course of your trial prepartion.

March 8, 2005

Discovery Questionnaire for Wrongful Death Action

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

Getting through litigation as efficiently as possible is (generally) in a plaintiff’s best interest. To avoid the “hurry up and wait” effect that can encumber a case, I send my clients a discovery questionnaire at the outset. I ask the clients to answer the questions that I anticipate needing to go forward in the case. I include the interrogatories we see most often – such as listing past residences, employers, and treating physicians. I also ask the client to gather and provide copies of documents frequently requested by defendants – recent photographs and videotapes, tax returns, and etc. At the same time, I ask my clients to gather the information and materials that will help us move the case forward on our end – copies of pertinent insurance policies, for example. The goal of all this is, of course, to have the information on hand before it is needed. Ideally, we are prepared to respond to written discovery the day we receive it, and can avoid delaying the case through extensions.
This form is one that I use in wrongful death actions. Download file. The information requested is largely the same as in a personal injury case, but the questions have been edited to specify whether I am asking about the decedent or the surviving family members.

March 7, 2005

Another Blue Chipper – Damages

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

The leading case on the law of damages in personal injury cases comes not from the Tennessee Supreme Court but rather from an opinion authored by Judge Koch on the Court of Appeals, Middle Section.

Judge Koch is an excellent writer. His opinions are exremely through and provide a great place to start legal research on viturally any topic he has written about during his twenty years on the Bench.

The opinion in Overstreet v. Shoney’s, Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999) is another example of the foregoing. If you know this opinion you know 85% of what you need to know about the law of damages in personal injury cases.

March 7, 2005

Discovery to Identify Nonparties

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

With several important limitations, T.C.A. ㋔ 20-1-119 permits a plaintiff to add parties defendant to a case even if the statute of limitations has expired. The triggering event for adding nonparties as parties is typically language in the defendant’s answer or amended answer.

Rather than waiting for the defendants to get around to blaming others, try to force the issue by using the following interrogatory:

Do you contend that any person or entity other than yourself caused or contributed to cause plaintiff’s [insert appropriate word] as alleged in the complaint? If so, please state (a) the identify of each such person; (b) what you contend he or she did (or did not do) to cause or contribute to cause the injuries; and (c) identify any documents or things that support your contention.

March 5, 2005

Rule 26 Disclosure of an Expert Witness in a Medical Negligence Case

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

It is a bit of a stretch to describe anything as a “form” for disclosing the opinions of an expert witness in a medical negligence case. Forms are designed to avoid re-inventing the wheel, shortcutting repetitive processes in lawsuits. There is rarely anything repetitive about the medico-legal issues that arise in a medical negligence case. Before putting pen to paper, an attorney must have a real grasp of the medicine and the law as it applies to a particular case.

That said, it is helpful to check an earlier Rule 26 disclosure as a prompt for the type of information that can be included, so I am providing this Rule 26 disclosure as an example. Download file. It sets forth the bases for the expert’s knowledge in the field, including an express statement that the expert is licensed to practice in Tennessee (or a contiguous state). It describes the expert’s familiarity with the standard of care in the locality, including how the expert gained that knowledge. The disclosure lists the materials that the expert has reviewed in forming his opinions. The disclosure states that the expert is familiar with the applicable standard of care and explains what that standard of care requires. It states that the defendants failed to act with the appropriate standard of care, and that failure to act with the standard of care resulted in the injuries and death of the decedent. The disclosure states that the expert’s opinions are held within a reasonable degree of medical certainty.

You will see this disclosure is very detailed. Some people try to get by with less, and depending on your opponent and your judge you sometimes can get by with less. The law is unclear on how much detail is required in an expert witness disclosure. When drafting an expert disclosure in a medical negligence case, it is helpful to check Tenn. Code Ann. 29-26-115 and a prior Rule 26 disclosure to refresh your recollection about what information should be included. Hopefully, this “form” will help you in your case.