Articles Posted in Miscellaneous

Next week is the last seminar of the year offered by Justice Programs, a creation of former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joy Riley and yours truly. We will be in downtown Memphis at the Doubletree Hotel on December 1 and 2.

We offer a complete year’s worth of CLE is 2 days. The program is designed for civil trial practioners.

We have had a great time with the seminar this year and, if I do say so myself, have had great reviews. We have almost doubled our attendance from last year and have been very fortunate to have a good number of repeat attendees.

It’s toy time in Tennessee – and all around the nation. This report is the 20th Annual Toy Survey that advises us about toys that present a risk to children. Here is the Executive Summary. And here is summary list of the toys that present a potential hazard.

Here is what purports to be talking points concerning tort reform for Republicans.

A sampling: “America has far too many frivolous lawsuits, absurd jury awards and outrageous plaintiffs’ lawyers. They wreck small businesses, damage the economy, punish consumers, deprive Americans of essential healthcare and cost all of us a lot of money. Republicans can never go wrong criticizing lawsuit abuse. For statistical purposes, you start with a potential pool of 81% of the electorate that believes ‘laws should be enacted to make it tougher for lawyers to file frivolous lawsuits.’ That’s pretty darn good.
So you start out with the American public on your side. But to keep them there, you need to talk about this issue using the right tone, context and language.”

It goes on and on, page after page.

I was speaking at a seminar in Knoxville Friday and someone asked me that question. I was a little taken aback, and then remembered that Evan Schaeffer of Legal Underground faced the same issue recently.

The answer is an unambigious “Yes” but I guess some explanation is necessary. I have spent a good amount of time over the years during professional association activities, particularly with the Tennessee Trial Lawyers Association and, in the last decade, the National Board of Trial Advocacy. I also founded and am a co-author of the Tennessee Tort Law Letter, a monthly newsletter on tort law developments in Tennessee and serve, from time to time, on various committees, boards, and commissions. Then, last February, I started playing with this blog. I guess that could cause some people to wonder if I still practice law.

Well, I do, and I believe that the folks in my office will tell you that it is still a full-time practice. How do I work it all in? I typically blog between 4:30 and 5:30 in the morning, although I occasionally prepare a post at night before I go to bed and actually post it the next morning. I do my other writing at nights or on the weekends and squeeze in the professional activities just like the rest of you do. The writing and speaking I do on substantive law actually keeps me very current on the case law in the state and developments in the law around the nation, which I believe helps me better represent our clients.

Some of you read a recent article in the Tennessee Bar Journal about a project that I am working on concerning board certification for lawyers. Unfortunately, the title of the article, “Changes would allow litigators with fewer jury trials to be certified ‘civil trial specialist,” has caused concern for those who are already certified.

Let me put those folks at ease.

The headline is wrong. There is no effort underway and I see no effort on the horizon to reduce the requirements for becoming board-certified. What the National Board of Trial Advocacy is doing is looking at the establishment of another speciality that would allow certification for those lawyers who had demonstrated competence and experience in civil trial work but did not have enough jury trial days to become a certified civil trial specialist. Any person would not be certified as a “civil trial specialist” but instead would be certified in a new, yet-to-be-named field.

Washington voters this week rejected two competing measures related to medical malpractice. The first, supported by doctors, hospitals, insurance and pharmaceutical companies, would have capped awards for pain and suffering in medical malpractice cases, and also would have stated that doctors can refuse to serve patients if they do not agree to arbitrate any malpractice claims. The second, supported by the state trial lawyers association, would have revoked the license of physicians who lost three malpractice verdicts in ten years, and would have required public hearings on rate increases for malpractice insurance. Neither measure passed, and now the state legislature is apparently thinking of weighing in.

Today I am off to Chattanooga for two days of a seminar sponsored by Justice Programs. The 15-credit hour seminar (which includes 3 E & P hours) is designed for lawyers who practice civil litigation. The seminar will also be held in Knoxville on November 17 and 18 and in Memphis on December 1 and 2. Read more here.

Those of you who dive may enjoy a seminar in Cozumel on November 26-29. I will be speaking for 6 hours on torts, comparative fault, and depositions. This program is sponsered by the Tennessee Bench Bar Conference. Contact me for more information.

Finally, our law firm will be holding two seminars in December. On December 14 and 15 we offer a program for young lawyers called “Fundamentals of Civil Litigation.” It is always a well-attended program and has gotten great reviews over the years. On December 19 we will hold our second annual “Beyond the Fundamentals of Civil Litigation” program. Both seminars are held in the Nashville area (Franklin, right of I-65). Read about them at this page on our website.

Tort cases are a rare commodity in the SCOTUS (Thank God) but one was argued earlier this week. A woman tripped on packages and other matters left on her porch (rather than in her mailbox) by the Post Office and and brought suit under the FTCA.

The issue is “whether a claim for personal injury caused by the negligence of a United States Postal Service employee while
delivering mail is barred by 28 U.S.C. ㋔ 2680(b), the exception
to the government’s waiver of sovereign immunity in the
Federal Tort Claims Act for claims “arising out of the loss,
miscarriage, or negligent transmission of letters or postal matter.”

The case is Dolan v. United States Postal Service, 04-848. Read more here. You can get copies of the briefs here.

Here is a great decision out of the state of Illinois, home of the World Champion White Sox. (I never thought I would type that phrase.)

The Fourth Division of the Illinois Court of Appeals said that “plaintiffs presented evidence that one result of the budget cuts mandated by defendant [corporate parent] was a decrease in the number of trained maintenance mechanics at the refinery, undermining the overall level of safety at the refinery. In fact, the fire was apparently caused by workers who were conducting maintenance on machinery that they were not trained or qualified to work on.” The opinion goes on to say that “Plaintiffs here alleged that defendant [parent] was a proximate cause of the decedent’s deaths via its own direct conduct, i.e., by mandating that [its subsidiary] Clark Refinery operate the refinery at “survival mode” and by reducing the capital expenditures to the “minimum sustainable level,” defendant created conditions within the refinery which posed an unreasonable risk of harm to refinery employees like the decedents. In other words, by mandating how Clark Refining was to operate the Blue Island refinery (at a 25% cost reduction), plaintiffs allege that defendant “interposed a guiding hand” in Clark Refining’s management of the refinery, leaving Clark Refining “no choice but to obey.”

After analyzing corporate law and various decisions concerning the relationship between parent and subsidiary corporations and the liability of parent corporations, the Court noted that “it has long been acknowledged that parents may be ‘directly’ liable for their subsidiaries’ actions when the ‘alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management,’ and the parent has interfered with the subsidiary’s operations in a way that surpasses the control exercised by a parent as an incident of ownership.”

Insurance Journal reports this: “There is no credible evidence to link the tort system either to the economic ills its critics claim or to the benefits they argue would be produced by altering it, according to a new study by the Economic Policy Institute.”

The article goes on to say that “the EPI report, The Frivolous Case for Tort Law Change, examines reports prepared by Tillinghast-Towers Perrin, a consulting firm whose clients include many of the world’s largest insurance companies. TTP’s reports are cited by President George Bush and his Council of Economic Advisors in arguing for tort reforms. The insurance consultants have spun a few high-profile but unrepresentative incidents into a horror story that is almost entirely unsupported by the facts,” said Chimerine. “It is cobbled together out of gross exaggerations, shreds of fact plucked out of context, and ‘secret’ data that cannot be examined by anyone but them. The result is a mishmash that bears little resemblance to actual research.”

Read the entire article here.