Day on TortsWhat we think is happening is happening: there is an increase in the number of cases filed against lawyers. Read this article from the Chicago Tribune to learn more.
Articles Posted in Managing Your Practice
Funding for Plaintiff’s Lawyers
One of the significant problems with running a plaintiff’s practice is managing cash flow. Any fees earned are usually contingent fees, and cases are not always resolved in such a way and a such a time to meet professional and personal financial obligations.
There are at least four different ways to address this issue. First, you can visit your friendly banker and arrange a line of credit that you dip into went you need to meet payroll, significant expert expenses, etc. This is probably the most common way of handling the situation.
Second, you can do business with a company that provides funding for plaintiff’s lawyers. Here is an article describing what these companies do and what they charge. There are several different models out there and the interest rates for each of them are much higher than you would expect to pay a bank.
Limitation of Actions and the Mentally Disabled
We all know that that a person who suffers from an “unsound mind” gets the benefit of a tolling of the statute of limitations under T.C.A. Section 28-1-106, which states that “[i]f the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person’s representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.”
But what if the injured party, prior to becoming of “unsound mind,” granted a durable power of attorney that gave an attorney-in-fact the duty “act in my name, place and stead in any way which I myself could do, if I were personally present, with respect to … claims and litigation…?” Does the presence of that durable power of attorney trump the “unsound mind” statute, mandating the statute of limitations begin to run as if the plaintiff were not of unsound mind?
I have worried about this issue for years. We how have an answer from the Eastern Section of our Court of Appeals hearing a case arising out of the Middle Section. The plaintiff in the case held a durable power of attorney from his father. The father was a resident in the defendant’s nursing home and became of “unsound mind.” According to the opinion, “[t]he plaintiff frequently visited the deceased during the latter’s stay at the defendant’s facility. The plaintiff would later testify that, at the time of his visits, he observed problems in the defendant’s care and treatment of his father, which he believed were harmful to him.” More than a year after the father was transferred from the defendant’s nursing home but within one year of the father’s death {when the disability was “removed,” according to the plaintiff) the attorney-in-fact filed a malpractice suit against the nursing home. Defendant sought summary judgment of the statute of limitations issue, arguing that plaintiff had the power and duty to act on behalf of his father and did not do so in a timely fashion. Plaintiff argued that the cause of action was tolled by operation of Section 28-1-106.
Frivilous Appeal?
“An appeal is frivolous when it “has no reasonable chance of success,” Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977), or is “so utterly devoid of merit as to justify imposition of a penalty,” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978).” I see one or two tort decisions a year in Tennessee where damages are imposed under the “frivilous appeal” statute.
Here is one.
Plaintiff sought compensatory and punitive damages against a pharmacy for mis-filing a prescription. A discovery fight ensued. One letter from Plaintiff’s counsel included the following language:
Do You Bates Stamp Documents ?
You should. Or should do something like it.
When you produce documents to an opponent it is nice to be able to demonstrate which documents you turned over. “In response to RFP #4 Plaintiff produces documents 0023 – 0045.”
By marking each document (or photograph) with a unique number you will be able to demonstrate what you have produced. Numbering documents also helps you remember months later what you previously produced so that you do not have to worry whether you inadvertently failed to produce something you were supposed to produce.
Amendments to TRCP – What Was Missing
I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).
What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.
I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.
Court Costs
Did you know that court costs are changing in Tennessee effective 1/1/2006?
Historically, plaintiffs paid a relatively small filing fee at the beginning of a case and then additional charges accumulated based on the number of pages that were filed.
Beginning the first of the year, charges will be made similar to method used in federal court: there will be a flat fee of $267.50 charged in “Category One” cases and $192.50 in “Category Two” cases. Lesser fees will be charged in domestic – related cases.
Reject Letters And Things That Go Bump In The Night
It is a good idea to write a reject letter to a potential client when you turn down a case. A good number of lawyers tell the receipent of the letter something about the statute of limitations on the particular claim in such a letter. This decision reminds us why we need to be careful when we do so.
A Chicago law firm rejected a wrongful death claim and advised the potential client that the statute of limitations was two years. In fact, it was one. The letter concluded as follows: “Therefore, should you decide to pursue this matter further, we respectfully suggest that you contact an attorney of your choice immediately so that the Estate’s legal rights may be fully protected. Do not delay.”
The receipent sought the advice of another attorney within the applicable one-year period; that attorney had one meeting with the client and then rejected the case. His reject letter said this: “Please be advised that all lawsuits are limited by a period prescribed by statute. You need to have your daughter’s case filed within the applicable limitations period. If you do not do so, you may lose whatever rights you have to recovery.”
Oral Fee Split Upheld
The high court of Massachusetts upheld a lower court decision that found and enforced an oral fee-splitting arrangement between two lawyers. The lawyer who refused to share the fee claimed that the agreement was not only not it writing but was not agreed to by the client (which is also required in Tennessee).
The Court held that the requirement of client approval was to protect the client, not a breaching lawyer. The agreement was upheld.
The Court also announced this rule for future cases: “the referring lawyer, who usually is in the best position to secure compliance with rule 1.5 (e), is required to disclose the fee-sharing agreement to the client before the referral is made and secures the client’s consent in writing. The rule will be construed to require this in fee-sharing agreements that are formed after the issuance of the rescript in this decision. Although the primary responsibility for compliance will fall on referring lawyers, lawyers to whom referrals are made are not absolved of all responsibility, and should confirm, before undertaking such representations, that there has been compliance with rule 1.5 (e). We emphasize that although failure to comply with the rule may not necessarily render a contract unenforceable between lawyers, it may subject both lawyers to disciplinary action upon division of a fee.”
Legal Writing Guide
Here is a e-book written by Judge Mark Painter in Ohio. The book is called “Legal Writing 201” and it contains 30 rules that will help you write for, not like, a judge. (That is what the sub-title says, I promise.)
Thanks for the lead from Appellate Law and Practice.