Can a judge stop a lawyer from arguing the value of pain and suffering to a jury?
No. T.C.A. Sec. 20-9-304 gives a lawyer in a personal injury case the right to argue the worth or monetary value of pain and suffering. The argument must conform to the evidence or reasonable deduction from the evidence in the case.
The only possible exception to this rule is medical negligence cases.
An article in the Washington Post demonstrates an amazing ability of Sen. Bill Frist: the skill to make a medical diagnosis from a videotape.
This may surprise some of you who do medical negligence work or address a lot of medical issues in your practice. As lawyers we are all told how difficult it is to make a medical diagnosis. Defense experts will routinely testify that it is unfair to challenge a medical diagnosis without seeing and laying hands on the patient. But Sen. Frist has the ability to look at a videotape and make a diagnosis that contradicts that of the patient’s treating physicians!
The article discusses Sen. Frist’s review of a videotape of Terri Schiavo and his (subsequent?) opinion that she may not be in a persistent vegetative state. That opinion was in no way influenced by the upcoming Presidential election.
Sorry for the lack of a post yesterday; I am at a conference in Florida and the day was a little hectic.
I didn’t write the Trial Lawyer’s Prayer, but I wish I had. Read more of Evan Schaeffer’s stuff by clicking here.
Trial Lawyer’s Prayer, by Evan Schaeffer
I know the judge has to render a decision in my case in some time period. What is it?
T.C.A. Sec. 20-9-506 requires a judge who tries a non-jury case to render a decision and have the judgment entered within 60 days after completion of the trial.
Now, how do you enforce that statute? Well, the is a little more delicate. First, know your judge. Some judges will appreciate a “Motion to Determine Status.” Some judges let it be known that they want such a motion in the event something slips through the cracks.
The Eighth Circuit Court of Appeals has limited Medicaid’s subrogation interest in a tort recovery.
Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her “right to any settlement, judgment or award” she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.
Medicaid and plaintiff agreed that plaintiff’s damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.
Most tort reform proposals center on limiting damages for people who are found by a jury to have meritorious claims. Insurance companies that sell malpractice insurance want their exposure capped. (Who wouldn’t?) Do doctors and hospitals get lower premiums in return? Well, that depends on if you ask the insurance companies under oath or if you are reading their PR pieces.
There is another debate out there that is more interesting from an intellectual standpoint – the debate about special courts for health care claims. These courts would run by health care professionals. Two folks are going at it on the Internet right now – Philip K. Howard, Founder and Chair of Common Good and the author of The Death of Common Sense: How Law is Suffocating America and Stephanie Mencimer, a contributing editor of The Washington Monthly and author of a upcoming book on tort reform.
Read the debate by clicking here.
The ABA is hosting a 90-minute teleconference and live audio webcast on how to unearth fact information on the Internet.
Carole Levitt and Mark Rosch, authors of the ABA’s The Lawyer’s Guide to Fact Finding on the Internet will be the speakers. They will address issues like locating public records, locating background information on people and companies, and effective search techniques.
The seminar will take place on April 14, 2005 from 12:30 to 2:00 Eastern time. Call 800.285.2221 weekdays from 8:30 a.m. to 6:30 p.m. Eastern time to register. The program is eligible for 1.5 hours of CLE credit. Click here for more information.
I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.
For example, look at this table:
Average Comprehensive Cost by Injury Severity, 2003
State Farm v. Campbell was feared to be a dramatic change in the law of punitive damages, but some courts have not taken the bait. In Willow Inn, Inc. v. Public Service Mutual Ins. Co. the United States Court of Appeals for the Third Circuit affirmed a punitive damage award of 75 times the compensatory damage award.
The plaintiff’s property was damaged by a tornado. The trial judge found that the insurer had engaged in obstructive tactics in settling the plaintiff’s property damage claim, which resulted in a two-year delay in the payment of $125,000.
The plaintiff’s bad faith claim resulted in a compensatory damage award of $2,000, punitive award of $150,000 and attorneys’ fees and costs of another $135,000+. The appellate court affirmed, finding the conduct of the insurer “reprehensible” and a combination of “purposefully indifferent actionand intentionally dilatory action.”
Many of us have attempted to use police officers as expert witnesses at trial. We have also had them used against us.
The Delaware Supreme Court has recently ruled that it was reversible error for a trial judge to permit a police officer to testify to the “primary contributing cause” when the police officer was not qualified as an expert in accident reconstruction. The decision in Lagola v. Thomas may be read by clicking here.
Testimony by police officers in traffic wreck cases often carries substantial weight. This decision may be of assistance to you in your attempt to exclude the opinion testimony of a police officer.
