Articles Posted in Managing Your Practice

Don’t count on it. Read this new opinion from the Tennessee Supreme Court which affirmed a grant of summary judgment in favor of the defendant when the plaintiff submitted an affidavit in opposition to the motion after the date required by a previous order of the trial judge.

The core holding: “We conclude that the trial court did not abuse its discretion in denying the plaintiffs’ motion for an enlargement of time under Rule 6.02 after finding that there was no excusable neglect. The trial court held an extensive hearing and considered the factors identified above. The trial court considered the reasons for the plaintiffs’ delay, the length of the delay, the prejudice caused to the defendants, and the potential impact on the proceedings. Although the inquiry of prejudice and the effect of the delay generally should focus on the plaintiffs’ failure to identify expert witnesses by the deadline set by the trial court, this failure cannot be isolated from the plaintiffs’ failure to comply with other deadlines and magnifies both the prejudice to the defense and the effect of the delay.”

The case also held that the expert affidavit submitted by the plaintiff to oppose summary judgment was deficient: “Here, the plaintiffs relied on the affidavit of Dr. Robert Gordon. Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was “familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities . . . .” The affidavit contains no information regarding the basis for Dr. Gordon’s familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon’s affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient.”

I was in court last Monday morning and a lawyer sitting next to me asked for some help on a comparative fault issue. I told him the answer and that the case law in support of the answer could be found in Chapter 5 of Tennessee Law of Comparative Fault, the book I co-authored with Donald Capparella and John Wood. He told me that he had a copy but the relevant case law was not there. I shortly figured out that he had the first edition of the book.

The second edition of Tennessee Law of Comparative Fault is published by West Publishing and has been updated via pocket part three times. Here is the Table of Contents. You can purchase the book by clicking here.

If you practice tort law in Tennessee I think you will find that this book will save you several hours of work every time you face a comparative fault issue.

The Court of Appeals of Maryland has held that an Ohio lawyer who contracted over the telephone and by mail to perform legal services in Ohio for a Maryland resident could not be sued for professional negligence in Maryland.

Here is the summary of opinion as prepared by the Court:

“The Court considered here whether communicating alleg edly negligent legal advice to a Maryland resident via two telephone ca lls and two letters constitute sufficient minimum contacts to support personal jurisdiction by a Maryland court over an Ohio attorney under the Due Process C lause of the Fourteenth Amendment to the U.S. Constitution. Petitioner filed suit against Respondent, an attorney admitted to practice in Ohio, in the Circuit Court for Baltimore City alleging professional malpractice stemming from legal representation undertaken, and advice given, by Respondent to Petitioner by written and telephonic correspondence in 1985, 1986, and 1994 regarding the expungement of Petitioner’s Ohio juvenile records and the failure to expunge those records. Relying upon the Maryland longarm statute, ㋔㋔ 6-103(b)(1) and (3) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl. Vol.), Petitioner argued that Respondent established minimum contacts w ith Maryland to justify asserting p ersonal jurisd iction over him because harm caused by the alleged malpractice was experienced by Petitioner in Maryland.

The Kentucky Supreme Court has recently modified the law concerning the application of the “error of judgment” rule in legal malpractice cases.

In Equitania Insurance Conmpany v. Slone & Garrett, P.S.C., 2003-SC-1003-DG (2/23/06). The Court described the case as follows: “This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that she negligently advised them during the midst of the shareholder dispute. They claim that Garrett negligently failed to properly advise them as to how to retain control of the corporation; that the methods she advised violated the insurance code ; violated a fiduciary duty to shareholders; was unethical, and was substantially more expensive.”

The jury was given this instruction:

The Tennessee Court of Appeals has ruled that deposition videotaping expenses (and the cost of synchronizing the deposition with the written transcript) are not recoverable as discretionary costs under Rule 54.04 of the Tennessee Rules of Civil Procedure.

The case is Parker v. Brennan, No. M2005-01376-COA-R3-CV (April 19, 2006).

The Rule should probably be amended to allow the successful party to recover the lesser of the court reporter charge or the videographer charge. Why? Because you do not have to use a court reporter to capture testimony at a deposition; the video counts as the official transcript. Therefore, a party that elects not to have a court reporter present and to rely on the video transcript should be able to recover the cost of the videographer.

Missing deadlines is something that can happen to anyone. This legal malpractice case, against the Baker Donelson firm, demonstrates what can happen when an important deadline (filing notice of appeal) is missed.

Surprise! You cannot collect a contingent fee if your client rejects a settlement offer and later collects nothing.

In this Louisana Supreme Court decision in the case of Cullpepper & Carroll v. Cole (No. 05-C-1136) attorneys sought a one-third fee of a rejected settlement proposal in an estate case.

Check this out: “Having found a contingent fee contract exists, we now turn to the question of whether Mr. Culpepper is entitled to recover any attorney’s fees under this contract. Pursuant to the parties’ agreement, Mr. Culpepper is entitled to one-third “of whatever additional property or money” he obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole recovered no additional property or money as a result of the litigation against his mother’s estate. Because Mr. Cole obtained no recovery, it follows that Mr. Culpepper is not entitled to any contingent fee.

How would you like to receive this Order in the mail? Download file

Worse yet, how would you like to see it on the Internet?

The Supreme Court of North Dakota publishes this list of appellate practice types.

Of course, the citations are to North Dakota law but most of the principles are just as applicable in Tennessee.

Thanks to Jim Calloway.

The Tennessee appellate courts have a proposed rule about electronic filing that has been released for public comment. Read about it here.