On September 28, 2008 FRE 502 become applicable in federal court. The rule provides that under certain circumstances the disclosure of attorney-client material and work product material does not constitute a waiver. Read the full rule here.
Federal Evidence Review is a great resource for infromation about this rule. Click here for all you need to know abou this rule.
Every month I let you know that a new edition of our newsletter – Trial Law Report – Tennessee Tort Law Edition – is in the mail to our subscribers. This month, we are making a free copy available for downloading by each of you, the loyal readers of this blog. (The newsletter is ordinarily printed and mailed on the 1st of each month.)
Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the Tennessee appellate courts every month. We also provide you will a complete listing of all cases pending before the Tennessee Supreme Court and the United States Supreme Court on these subjects. Finally, I write a monthly column on some aspect of the law of trial each month.
The newsletter isn’t cheap – it is $349 plus tax for twelve monthly issues. However, our goal was to create one resource where tort lawyers could read what they need to read about the cases they need to be aware of in the area of torts, civil procedure, evidence and trial. We believe that by delivering a accurate, readable summary of those cases to your desk once a month will save you hundreds of dollars worth of time each month,even if you attempt to keep up with all of them on your own. And if you don’t attempt to keep up with them on your own, we will bring decisions to our attention you would have otherwise missed, making (and saving) you money every month.
Westlaw charges you for looking at the language of a public act after it has been codified.
The Tennessee Secretary of State has the language of the public act for free at this site. The site includes public acts back to 1997.
The lawyer in this case was not permitted to collect expert witness expenses from his client after an unsuccessful med mal case because the fee agreement with the client said only that the client "may" be responsible for such expenses.
What does your fee agreement provide?
Structured settlements were up 25% in the 4th quarter of 2008 (compared with the previous quarter), and totaled nearly $1.8 billion, according to this article in the National Law Journal. The article relates the increase to the economic turmoil we have been experiencing.
Perhaps. But what were they in the 4th quarter of 2007? I would expect that structures are usually up some percentage in every 4th quarter because there tends to be more settlements in the 4th quarter than during other times during the year. Thus, a comparison with the 4th quarter of 2007 would have been much more relevant on the issue.
That being said, I would not be surprised to see plaintiffs tend to gravitate to structured settlements during these times. Most plaintiffs do not have the ability or time to manage investments, and the events of the last 6 months prove that professional money managers are not immune from losses in the market.
Here is an interesting article from the ABA Section of Litigation on the issue of handling the difficult adversary lawyer. We have all been there.
Here is a description of a type of lawyer each of us has seen:
The Bully. Nearly all difficult adversaries exhibit bullying behavior. This lawyer is rude, ruthless, and unhappy unless he controls everything. From day one, the Bully has told you what was going to happen and threatened you and your client with motions, sanctions, and more. Depositions with the Bully are torture. You cannot get a question in without a speaking objection. If he is questioning your witness, the Bully ruffles at every objection and asks every question of your witness with an heir of arrogance, indignation, and contempt.
Plaintiff talked to lawyer (later the defendant) about a potential car wreck case. The lawyer allegedly gave the plaintiff wrong information about the statute of limitations applicable to the claim. Plaintiff’s car wreck case was dismissed as time-barred.
Plaintiff sued the lawyer for negligent misrepresentation. Lawyer said that he never represented client and, indeed, client never alleged an attorney-client relationship.
The Colorado Court of Appeals allowed the case against the lawyer to proceed under the negligent misrepresentation theory as set forth Section 552 of the Restatement (Second) of Torts (1977), saying that "in Colorado a claim based on negligent misrepresentation is independent of any principle of contract law and that privity is not required."
Keeping contemporaneous time records in cases where fee-shifting is allowed just makes sense. Not keeping such records does not make sense. And, if the allegations against one attorney are correct, a lack of candor about whether such records were kept can cause a big, expensive mess.
Result? A forfeiture of a fee claim of $2,000,000 and a sanction of $25,000.
Plaintiff’s lawyers don’t like to keep up with time. Admittedly, it is a pain in rear to do so. But the fact of the matter is that the amount of time spent in a case is a relevant – not determinative – but relevant factor in determining the the reasonableness of a fee in a fee-shifting case and the lack of contemporaneous time records in such cases is always going to cost you money.
Are you familiar with JD Supra? It is a website that contains thousands of legal documents prepared by lawyers around the country. You can search by key word, locate a document relevant to your issue, and use to short-cut your research time.
For example, here is a brief written on behalf of a plaintiff who was opposing a motion by a defendant in a civil case to stay discovery while criminal charges were pending against him for the acts that also gave rise to the civil suit.
Evan Shaeffer linked me to a great post in the (new) legal writing blog and I quickly determined that I needed to pass it on to you.
Raymond Ward from the Big Easy writes about writing. His post, "Owning your downloaded legal authorities," has some great ideas, including the recommendation that cases from electronic research sites be downloaded in a word-processing format. After you have done so, Raymond has several helpful tips, including "[i]nstead of writing in the margins of a hard copy, use Word or WordPerfect to insert comments. That way, your comments will be saved on your electronic copy."
Day on Torts