Civil Procedure

October 7, 2009

Rule of the Week – T.R.C.P. 7.02 (Motions)

Rule 7.02 of the Tennessee Rules of Civil Procedure governs motions. It is important for what it does not say. Here is the text of the rule:

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2)The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules.

September 30, 2009

Rule of the Week – T.R.C.P 8.03

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

There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure. For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense. Here is the text of the rule:

In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. {Emphasis added.}

Why is this important? A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith." No, the defendant must go further and set forth the facts that support that defense. Of course, the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts. If not, the court should strike the affirmative defense Rule 12.06 as insufficient.

September 29, 2009

Tennessee Supreme Court Issues Proposed Rules for Public Comment

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

The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here.

I serve on the Court’s Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.

Significant proposed changes to the rules of civil procedure include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits. The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.

September 23, 2009

Rule of the Week – T.R.C.P. 37.03(1)

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

Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery. Here is the text of the rule:

A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.

As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.

September 14, 2009

Scehduling Orders: Deadlines for Alleging Fault Against Nonparties

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

Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.

Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants.

Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action.

September 12, 2009

Iqbal / Twombly: The Death of Notice Pleading

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

If you don’t understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.

This seminar, exclusively for plaintiff’s lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice. Also discussed will be AAJ’s response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.

The teleseminar will be held on Thursday the 17th of September at 1:00 CDT. It will last 90 minutes. Go to the AAJ website to register.

September 10, 2009

Suggestion for Expert Witness Disclosure Language in Scheduling Orders

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

One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.

I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:

The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.

August 6, 2009

Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)

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

"All objections, except those as to the form of the question, are reserved." This sentence, or one substantially similar to it, may be found at the beginning of every deposition. But what are objections to the form of the question?

Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post. The post lists seven different objections – vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation – and gives examples of several of the objections. It is a handy list that you may wish to keep as a part of your materials on the law of depositions. Of course, you can always come back to this site and find the link under the "Civil Procedure" category or by using the "Search" function.

Many people get upset when you object to leading at a deposition. And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial. The law permits those witnesses to be lead during depositions. But the deposition of a co-party or a third-party witness is different. Why? Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).

July 24, 2009

Does Error of Counsel Justify Setting Aside a Default Judgment?

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

Not in the Seventh Circuit, it doesn’t. In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).

The Court ruled as follows:

[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that “[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds.” The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong’s actions, even with BMF’s purported diligence, do not fall within the exceptions to the rule and do not rise to the level of ‘exceptional’ to warrant such ‘extraordinary’ relief.

July 3, 2009

Article about Requirements for Pleading Facts in Complaints

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

Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v. Iqbal, 129 S.Ct. 1937; 2009 U.S. Lexis 3472 (May 18, 2009), a recent decision that sheds more light on Twombly.

Andrée explains that in Twombly the United States Supreme Court held that

to survive a motion to dismiss a complaint must contain ‘enough facts to state a claim to relief that is plausible’ and must suggest a ‘right to relief above a speculative level.’ ‘Labels and conclusions,’naked assertion[s]’ without ‘ further factual enhancement,’ or ‘a formulaic recitation’ of the elements of a cause of action will not survive a motion to dismiss.