Civil Procedure

December 16, 2009

Court Imposes Sanctions for Failure To Follow Rules Concerning Citation to the Record

Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris, Appeal No. 2008AP1647 (Wis. Ct. App. Div. II Dec. 2, 2009) concerning the assertion of the Fifth Amendment in civil litigation. I wanted to bring to your attention a footnote (Footnote 1) that addressed the failure of counsel to follow court rules for writing appellate briefs. Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.

We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.

December 4, 2009

Court Erred in Ordering Release of Medical Records

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

The Ohio Court of Appeals has ruled that a trial judge committed error by ordering production of a personal injury plaintiff’s medical records without first doing an in camera review to determine if the records should have been turned over to the defendant.

The opinion is interesting to Tennessee lawyers and should be persuasive in Tennessee even though the physician-patient privilege is statutory in Ohio.

Under Ohio law, "the filing of any civil action waives the physician-patient privilege as to any communication (including a medical record) that relates causally or historically to the injuries at issue in the action. Natl. City Bank v. Rainer (Aug. 12, 1999), 10th Dist. No. 98AP-1170; Ward v. Johnson’s Indus. Caterers, Inc. (June 25, 1998), 10th Dist. No. 97APE11-1531."

November 30, 2009

Defendant’s Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees

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

What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant’s answer, entered judgment for $8,000,000, and awarded attorneys’ fees. Last week the Washington Supreme Court had upheld the award.

The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:

The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña’s request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.

October 14, 2009

Rule of the Week – T.R.C.P. 43.04

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

Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.

Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court. The rule is well-written and self-explanatory.

When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

October 7, 2009

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

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

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.