Articles Posted in Miscellaneous

I saw this and it reminded me of a recent conversation I had.   I was having dinner with several judges and  was complaining about what I felt have been some rather meager fee awards in consumer protection action cases.   (Note:  I had no pending cases before these judges on any attorneys’ fee issue and I do not have a regular TCPA practice.)  I expressed the opinion that it was always relevant  for a trial judge seeking to determine a reasonable fee for a prevailing plaintiff in a TCPA to have the defendant’s counsel produce his or her bills for an in camera review. 

It just seems to me that a good starting point for determining what the prevailing party’s attorney should be paid is what the losing party paid his or her attorney to lose.  Surely the winner should receive no less than the loser and, indeed, should probably be paid more, particularly if they accepted the case on a contingent fee basis.

Of course, their are many other relevant factors (the timing and substance of settlement proposals, etc.), but why not order production of that data?

My friend Bill Marler is THE man when it comes to food poisoning cases.  His firm, based out of Seattle but with a nationwide practice, knows the science of food poisoning inside out.

We worked together on an e coli  case in East Tennessee that we wrapped up earlier this year and got together in July at his home on Bainbridge Island for a wonderful evening.  We talk regularly – most recently I called to give him grief about a story on him in the Wall Street Journal.

Bill’s firm has more blogs than any firm in America and now Bill has one of his own called, not surprisingly, the MarlerBlog.   Read it to keep up with food litigation across the county.

The Tort Deform Blog is offered by the Drum Major Institute of Public Policy.  They say that they blog "confronts and transcends the arguments put forth by the tort ‘reform’ movement, working to ensure that all Americans can access the courts."

The blog is well-written and provides a lot of information for debunking some of the myths about the civil justice system

We had our hearing on the subrogation issue mentioned in last Friday’s post.  Judge Bivins ruled that the made-whole doctrine survived the adoption of no-fault insurance in Michigan and also found that our clients were not made whole from our prior settlement with the defendants.  Accordingly, he declined to enforce the no-fault insurer’s claimed subrogation right,  increasing our clients’ total recovery by approximately $325,000.

One of our clients (Mr. Fraire) is from Mexico and speaks little English.  He made the trip to Centerville (Hickman County) Tennessee for the hearing.  Can you imagine going to a foreign country and being a part of a court proceeding?  Can you imagine doing so when you cannot speak the language?  (Our client knows more English than I know Spanish but not enough to fully understand what was happening as it was happening in the courtroom.)  Mr. Fraire was more than adequately prepared by Brandon Bass and did a fine job.

The insurer has already indicated that they intend to appeal so I guess we will find ourselves in Nashville for oral arguments in about six months.

Mark Zamora (of A Georgia Lawyer ) and David Swammer (of the South Carolina Trial Law Blog) have been working on a group blog for nearly a year and went live about ten days ago. It’s called the Trial Lawyer Resource Center with a shorter URL of TLRCBlog.com.  I am honored that they asked me to be a part of the group that includes these fine lawyers:

Matt Garretson (Cincinnati, Ohio)
Gary Gober (Nashville, TN)
Jay Harris (Toledo, OH)
Tom Kline (Philadelphia, PA)
Rick Kuykendall (Mobile, Alabama)
Todd O’Malley (Scranton, PA)
Ronald Miller (Baltimore, MD)
John Romano (West Palm Beach, FL)
Randy Scarlett (San Francisco, CA)
Karen Shelton (Charleston, SC) [lifecare planner / nurse case manager]
David Swanner (Myrtle Beach, SC)
Mark Zamora (Atlanta, GA)

In that group there are 5 past state TLA Presidents, 3 past Presidents of the Melvin Belli Society, 2 past Presidents of the Southern Trial Lawyers, the current President of Workers Injury Law & Advocacy Group, plus the incoming President of the Inner Circle of Advocates.  

Employee Froman died in an on-the-job accident.  Darling, one of the owners of the employer, threw away the equipment involved in the accident after being asked by an Indiana OSHA employee to keep it for inspection.

Froman’s estate filed suit against the employer; the suit included claims for negligent and intentional spoliation of evidence.  The trial court refused to dismiss the claims for spoliation,  the Court of Appeals affirmed, and the interlocutory appeal accepted by the Indiana Supreme Court.

The ISC reversed.   It first noted that Indiana does not recognize an independent cause of action for spoliation against a party to the underlying claim (first-party spoliation) but had expressly left open the question of whether it would recognize an independent cause of action for third-party spoliation.  (This sent a pretty strong signal about what was to happen next.)

The Supreme Court of Connecticut recently determined that a cause of action exists for intentional spoliation of evidence.

Plaintiff was hurt in a ladder incident (it collapsed), filed suit, and repeated asked the defendant to preserve the ladder and requested the opportunity to inspect it.  Defendant’s expert examined the ladder, found it not to be defective, and then destroyed it.  Plaintiff amended his complaint to allege intentional spoliation of evidence as an independent tort.

The Court said that "[d]estroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence
or to develop other evidence, which may be less accessible, less persuasive, or both."  The Court concluded that  "the existing nontort remedies are insufficient to compensate victims of spoliation and to deter future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case. We therefore conclude that the recognition of an independent cause of action for spoliation of evidence is necessary to fulfill the  public policy goals of the tort compensation system."

Some of you will recall that a couple of years ago former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I started "Justice Programs."   For the third consecutive year Justice Programs is offering a 15 hour seminar program in Memphis, Knoxville, Chattanooga and Nashville that is designed for civil trial practitioners.

I will be speaking for three hours on tort and comparative fault issues, and hour and fifteen minutes about developments in tort law around the nation, and one hour about developments in the law of civil procedure.  Penny and Joe will bring attendees up to date on USSC cases,  evidence, and other significant cases outside the field of torts, civil procedure and evidence.   There will be a one and one-half hour discussion entitled "Witnesses – A to Z" and Penny and Joe will offer three hours of ethics and professional credit.  (The E & P hours will be offered continuously on Friday afternoon for those who want to attend only that portion of the program.)

Here is our schedule:

Plaintiff filed a wrongful discharge and whistle-blower suit against his employer.  The employer sent him a letter advising him to preserve all data on his company-issued laptop (which Plaintiff retained in his position for a period of time after the litigation began).  Plaintiff destroyed 2200 personal files of data before returning the data to his employer.

The company sought sanctions, including dismissal of the case.  The district court dismissed the case and imposed monetary sanctions of $65,000.

The Ninth Circuit Court of Appeals affirmed,  finding that the district court did not abuse its discretion in finding that the destruction of the files was in bad faith, caused prejudice to the defendant, and that a lesser sanction would not be appropriate.   The fee award was also affirmed.

How can a Rule 10 opinion be noteworthy?  Those of you who have no life other than the law know that a Rule 10 opinion is one that "shall not be published, and shall not be cited or relied on for any reason in any unrelated case."  So why discuss it in any forum?

Because one has been released, and they are rare.  You see, our appellate judges have been reluctant to use this rule because they are afraid that some members of the Bar will be upset that their case did not get a full-blown opinion.  So, the judges put in the extra time to write an opinion that the vast majority of lawyers would agree is unnecessary given the issues involved.  Time spent on such opinions takes away time that would be better spent on more complex matters.

We need to trust our appellate judges to make informed decisions about whether a case deserves a full-blown opinion.  As lawyers, we know that some cases do not deserve such an opinion and, if they do not, then we need to support the judges on the appellate court when they decide to do one.  The current workload of the judges on the civil court of appeals requires them to write about 1.5 opinions a week, 52 weeks a year.  True, they have clerks to assist them, but it still is a significant workload. There is no reason why the workload should not be reduced through the judicious use of Rule 10 opinions.