Managing Your Practice

October 21, 2009

Rule of the Week – T.R.C.P. Rule 5

Rule 5 of the Tennessee Rules of Civil Procedure addresses the requirements for the filing and service of papers in civil litigation. Generally speaking, "every order required by its terms to be served; every pleading subsequent to the original complaint; every paper relating to discovery required to be served on a party; every amendment; every written motion other than one which may be heard ex parte; and, every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar papers shall be served upon each of the parties." Service may be by mail hand-delivery, mail or fax.

Earlier this year I proposed a rule change to expressly permit service of papers electronically to counsel of record. Here is the text of the proposed rule:

(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.

October 12, 2009

Fee Approvals When Representing Minors

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

It was almost two years ago that I wrote about Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007). (Post 1) (Post 2) Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff’s lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

The case was remanded so that a reasonable fee could be determined. After discovery and a hearing, the trial judge awarded the plaintiff’s lawyer a fee of $131,000. (The amount of the settlement of wrongful death case was $425,000.) The child’s guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court’s award of the $131,000 fee. The opinion details the extensive work done on the case, and reveals how plaintiff’s counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000. Also important to the outcome: the child was suing her grandmother, and thus a substantial judgment (or any judgment) was certainly in doubt.

September 28, 2009

Effective Phone and Video-Conference Depositions

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

Fred Fresard, author of the Litigation Cost Control blog, has written three great posts on the steps to effective phone and video-conference depositions. As Fred explains, "the suitability of a deponent for remote examination depends on the importance of the witness to the ultimate outcome of the case, and the potential length and complexity of their testimony."

Here is a link to his posts: Step 1, Step 2 and Step 3.

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 26, 2009

Additional Email Tips

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

On August 11, 2009 I directed you to an article written by Steven Robbins on writing better emails. Here is a great article written by Jim Calloway on managing your in-box. Jim writes the "Law Practice Tips Blog," a great place to learn about law practice management and technology.

An excerpt:

if an e-mail is being retained because it is really a task, save it as a task! Drag it from the inbox to Tasks on the lower left hand corner of display in Outlook 2007. A new Task appears with the subject line and contents of the e-mail. Then do three quick things: edit the subject line to whatever it is you need to do, give it today’s date and determine what the due date should be. It there is a hard due date, add it here. It you need to start on it several days in advance, then give that date as the due date and chance the task(subject) line to ‘do X by Y date.’

August 25, 2009

Dan Hull on Lawyering

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

I love to read Dan Hull’s blog, What About Clients? He gets it. Or, more precisely, he gets most of it. He doesn’t get contingent fees, which puzzles me. But the rest of it is firmly within his grasp.

Dan’s post, Litigation: Lawyering, Real Life and a Little Zen is one is wish I would have written. Here is an excerpt from the post, which I hope will wet your appetite to read the rest of it.

The ability "to think like a lawyer"–what you get in law school and then polish in practice–is at most about 8 percent of what you need to be an effective lawyer. That’s right, about 8 percent.*

August 15, 2009

Working Smarter

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

Those of us who typically work for contingent fees have an extra incentive to work smarter. Like many of you, I have done a lot of reading in the field of time managment and project management, looking for ways to improve my productivity through better organization.

I found this article on Harvard Business School’s "Working Knowledge" site that does a nice job summarizing some of the ideas I have read over the years that help improve productivity.

August 11, 2009

Tips for Managing Email

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

LIke you, I get a lot of emails every day. All too often, I permit emails to control my work schedule – a big mistake.

Here is a nice article that gives suggestions for managing the mass of emails that enter our lives every day. The writer, Stever Robbins, accurately points out the reason for the problem:

Before e-mail, senders shouldered the burden of mail. Writing, stamping, and mailing a letter was a lot of work. Plus, each new addressee meant more postage, so we thought hard about whom to send things to. (Is it worth spending thirty-two cents for Loren to read this letter? Nah….)