Articles Posted in Miscellaneous

This blog started three years ago this week.  There have been 1175 posts totaling millions of words made to it.  In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients.

I am taking a break for a couple weeks.  I start a medical malpractice wrongful death trial on February 25 and I simply do not have time to post  between now and the end of trial. 

Trials are, well, trials – they are called that for a reason.  Medical malpractice trials are a particular challenge, and medical malpractice trials with multiple defendants that take place out of town are all-consuming.  Although I have been involved in the case from the start, Rebecca Blair has taken the lead on case and trial preparation to date.  We argued motions in limine ten days ago so for the last three weeks a substantial percentage of my time has been devoted to this case.

We live in a log cabin in the woods in Williamson County.   This morning we are blessed with a strong rain – weather that we haven’t seen much of in the last year.

Other than frequent sightings of deer and turkeys, one of the joys of living here is the sound of rain pelting the  tin roof.  I love to sit on the front porch, drink strong coffee, and listen to the rain.  It is little cool to sit outside this morning but the rain is hard enough that I can enjoy the sound from inside our home.

Rain, Blue Mountain coffee, and thoughts of superceding cause.  It is going to be a great day.

The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The Court quoted with approval this language from a court in Michigan:  "In cases involving the loss or destruction of evidence, a court must be able to make such rulings as necessary to promote fairness and justice. To deny the courts the power to sanction a party in such circumstances would only encourage unscrupulous parties to destroy damaging evidence before a court order has been issued. Furthermore, regardless of whether evidence is lost as the result of a deliberate act
or simple negligence, the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence."

Presumably, a court could strike an answer and enter a judgment for the plaintiff if  a defendant’s "destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

A federal judge has written a "Top Ten" list taking issue with the United States Supreme Court opinions on the sentencing of criminal defendants.  Read it here.

The Tennessee Supreme Court has just released the 2006-07 “Annual Report of the Tennessee Judiciary.” It has some amazing, indeed alarming, information.

• There were 584 medical malpractice cases filed in Tennessee last year. To put that in perspective, there were 10,165 general “Damages/Torts” cases filed. Indeed, there were less medical malpractice cases filed than there were kidnapping (660) and homicide (1622) cases.
• There were 28 jury trials in Chancery Court and 393 civil jury trials in Circuit Court in the entire state.
• There were just 590 jury and non-jury personal injury and death cases tried in the entire state; 289 of those were jury trials. In 242 jury and non-jury cases the plaintiffs recovered money (about 40%).
• Davidson County had 54 of the jury trials; Shelby County had 31. Knox Courty had 45 jury trials of personal injury and wrongful death cases, Hamilton County had 23 and Montgomery County had 6. Forty-three counties had no personal injury or wrongful death jury trials.
• There were only 15 medical malpractice trials in the entire state during the one year period covered by the report. ]
• About 5% of all personal injury and tort cases end up going to trial (jury or non-jury).
• Total damages awarded ($44,600,000) in personal injury and death cases is down from $94,500,000 a year previously.
• The total number of tort cases filed has dropped in the last ten years.
• This data is for the one year  period ending June 30, 2007.

Read the statistical section of the Annual Report here.

I will have some comments about  this data in later posts.

I have an early morning meeting and won’t be able to post until closer to Noon.  Check back later for another in the Great Lawyer series.

The Economist reports about a new study that links physical appearance and income.

The article says that " a series of surveys in the United States and Canada [show]  that when all other things are taken into account, ugly people earn less than average incomes, while beautiful people earn more than the average. The ugliness “penalty” for men was -9% while the beauty premium was +5%. For women, perhaps surprisingly considering popular prejudices about the sexes, the effect was less: the ugliness penalty was -6% while the beauty premium was +4%."

But there is more:  "The difference also applies within professions. Dr Hamermesh [the author of the study] looked at the careers of members of a particular (though discreetly anonymous) American law school. He found that those rated attractive on the basis of their graduation photographs went on to earn higher salaries than their less well-favoured colleagues. Moreover, lawyers in private practice tended to be better looking than those working in government departments."

Dahlia Lithwick at Slate has selected the Bush Administration’s Dumbest Legal Arguments of the Year. 

The list stopped at ten arguments; the writer was obviously working with a severe space limitation.

Here is an excerpt from the article: 

The Tennessee Supreme Court has appointed me to the Advisory Commission on the Rules of Practice and Procedure effective January 1, 2008.  I am honored by the appointment; I have always attempted to be a student of the rules of evidence and procedure and look forward to being a part of the process of improving them.

Do you have a proposed rule change that you think will advance the just, speedy and inexpensive resolution of disputes?  Write me an email and give me your thoughts.  Please don’t just pass on an idea – take a stab at drafting the language that you think should be adopted.  Indicate why you think the rule change is appropriate.

Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated.  The updates are free and may be found at http://www.dayontortsbook.com/lawyer-attorney-1251567.html.

To order the book go to http://www.dayontortsbook.com/lawyer-attorney-1251565.html.