Managing Your Practice

April 25, 2011

Cross-Examination Handbook: A Review

From time to time, some lawyer undertakes an effort to educate other lawyers on how to conduct cross-examinations. Francis Wellman did so over 100 years ago in his excellent book, The Art of Cross-Examination. In my generation, Irving Younger’s Ten Commandments of Cross-Examination was treated by law professors as if it was handed down by the Almighty. Now, Ronald H. Clark, George R. Dekle, Sr. and William S. Bailey add to these excellent works with the Cross-Examination Handbook: Persuasion Strategies and Techniques.

The book begins by quoting the words of Wellman, who aptly explained the challenge of cross-examination with these words:

Cross-examination … requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self control; power to read men’s minds intuitively, to judge their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution and, above all, the instinct to discover the weak points in the witness under examination.

March 21, 2011

Lawyer In Fee Dispute Should Have Sued Client, Not Former Co-Counsel

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

Lawyer A is hired to bring a personal injury case on behalf of an injured person. With the consent of the injured person, Lawyer A associates Lawyer B. The contract between A and B includes a fee split arrangement. Injured person consents to fee split and the contract. Injured person then fires Lawyer A. Lawyer B prosecutes case and resolves it. Lawyer A is not paid any portion of the fee. Lawyer A sues Lawyer B under a myriad of theories.

he California Court of Appeals, Third District, rules that Lawyer A has no claim against B. The personal injury client employed and fired Lawyer A and it was her responsibility to pay a fee if it was due under either a breach of contract theory or a quantum meruit theory. The Court also ruled that the litigation privilege barred Lawyer A’s fraud claims against Lawyer B.

Find the opinion in Olsen v. Harbison, C058943 (Cal. Ct. App. 3rd Dis. Dec. 28, 2010) here.

January 18, 2011

Statistics on Tort Cases From the 2009-10 AOC Annual Report on the Judiciary – Part 3

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

As mentioned in the last two posts (here and here), the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary. The Report Contains statistical data about our court system.

Today we look at additional information about tort cases that were filed or tried in state court in Tennessee. "Tort cases" includes medical malpractice cases.

Of the 229 cases that were tried that resulted in damage awards for the plaintiff, the total damages awarded were $91,682,216. This is an increase of a little over $8,000,000 from a year earlier. The average award, then, was $400,359.

January 7, 2011

From Max Kennerly: Philosophy Explains How Legal Ethics Turn Lawyers Into Liars

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

This is one of the best articles I have read in a long time, coming from a man who I have cited often but never met: Max Kennerly.

A short sample:

At these pre-trial events [hearings, pretrial conferences, etc.], the only thing stopping a lawyer from looking the judge in the eye and telling him or her an outright lie is that oath the lawyer made to the government years ago.

January 4, 2011

Lawyer Pay

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

Payscale.com has posted data on the pay for lawyers. On average, associates with at least three years of experience earn $75,400 per year. Lawyers with 10-15 years of experience earn an average of $123,000 per year.

Thanks to Lawyers USA for sharing this data.

January 3, 2011

Jury Selection Software for iPad

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

Are you an iPad user? Here is a new app that facilitates jury selection. Here is a video on how to use the app.

Turn to Tablet Legal for more information about how to use the iPad in your practice.

September 30, 2010

Electronic Service of Papers Now Permitted in State Court

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

The Tennessee Rules of Civil Procedure have been amended to permit pleadings, motions, discovrey and briefs to be served via email. Here is the new rule:

Here is the text of Rule 5.02(2):

(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.

September 23, 2010

Rita’s Rules for Email (With Comments and Additions by John)

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

More and more of the communications between lawyers are conducted by email. For the most part, I approve of the change and, indeed, I proposed and served as the principle author of the new rule of civil procedure that allows for the service of papers in state court via email. T.R.C.P. Rule 5.02(2). I rarely see the need for letters between lawyers anymore, and use letters only to communicate on very substantial matters (settlement demands, inadequate discovery response letters, policy limit demands, etc.). Even then I tend to have the letter attached to an email for immediate delivery.

That being said, communicating by email presents a host of problems. Therefore, I was happy to see this post by Rita Gunther Mcgrath that offered up "Rita’s Rules for Email." Here they are (in bold), with my comments and additions:

1. Meaningful subject lines that tell the reader what to expect. Don’t say “Thursday’s meeting” as your subject. Say “followup expected by client from Thursday’s meeting.” (My case management program inserts the case name in the subject line. To help find the emails later in my CMP, I put the subject of the email in the first line of the email and start the text two lines below it. Given the layout of my CMP email screen, I can see the first twenty or thirty letters of each email and enhance my ability to find the email when I need it.)

September 9, 2010

Adobe Online Digital Signing Service

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

Adobe has created an Online Digital Signing Service. When the document is digitally signed, no changes may be made to it. The document is also time-date stamped and certified.

Medicare Reporting as of October 1, 2010

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

The Garretson Firm Resolution Group has issued this report on the status of reporting personal injury and wrongful death claims and the need for the utilization of medical set asides.

The bottom line: starting October 1, 2010 insurers will be required to gather certain information about claimants asserting personal injury and wrongful death claims and share that information with Medicare. More importantly, there is no rule going into effect that requires parties who settle liability claims to calculate a “set aside” amount that the injured claimant must spend on injury-related care before Medicare picks up the tab again.

Here is the Garretson Firm’s recommendations for claimant’s counsel: