Articles Posted in Miscellaneous

Last year former Justice Penny White, former Judge Joe Riley and I started a seminar program call “Justice Programs.” We had seminars across the State last fall. The program had great attendance and great reviews.

Penny, Joe and I are doing a similar program this year, but we have lengthened the program to offer 15 hours. The seminar is “Cutting Edge Developments and Practice Pointers.” It is designed to help civil trial practioners stay up to date on civil procedure, evidence and substantive law. We will also be sharing practice pointers to help lawyers do a better job representing their clients.

Read more about these programs by visiting our website.

Here is a great article written by Robert Gilbreath in Certworthy, a publication of the DRI Appellate Advocacy Committee. I found it with the help of Evan at his Illinois Trial Practice blog.

The article summarizes points about appellate advocacy made by Karl Llewellyn in a 1960 law review article. Titled “The Seven ABCs of Successful Appellate Advocacy,” Gilbreath’s article appears on Page 13 of the PDF file.

One point made in the article that I think is often missed by those who file briefs and make arguments before appellate courts is the need to make judges understand why good public policy supports your position. Judges are human. They want to do the right thing. It is your job to help them understand that adopting your position is the right thing to do.

The Tennessee Court of Appeals has issued a new opinion finding that Tennessee has in personam over a Georgia bank sued by a Tennessee business.

Progeny Marketing v. Farmers and Merchants Bank arises out of a claim by the plaintiff that it was not paid for certain work it did for the defendant bank. The trial judge ruled that bank could not be sued in Tennessee, but the Court of Appeals, in an opinion written by Judge Cain, held to the contrary.

The opinion does not represent new law, but is brought to your attention because it is one of the rare jurisdiction cases decided by our appellate courts. The opinion will be particularly helpful to Tennessee individuals and companies who sign service contracts with out of state entities.

Everyone has heard about the allegations of Anna Alaya: she says she found a finger in the chili she bought at Wendy’s. Wendy’s says that ain’t so. Indeed, someone has persuaded the Sana Jose police to search the woman’s home in search of – I guess – evidence that the finger was planted.

I like Wendy’s. I have never found a finger or any other foreign object in Wendy’s chili. But, if Wendy’s served chili with a finger, they should get nailed for it.

On the other hand, if this woman is trying to extort money from Wendy’s by planting a finger in her chili, she needs a little time in the joint. We cannot have people trying to game the system.

Senator John Cornyn (R-TX) made a speech recently wherein he wondered about a possible connection between violence in courtrooms and activist judges.

You really have to wonder about the intellect (or, at least, the intellectual honesty) of a person who would make such remarks. The suggestion that a criminal court judge in Georgia was murdered because of his politics is patently ridiculous.

Do you see how hard he struggles to find the right words? He knows he is about to say something preposterous, but just can’t help himself.

Are you thinking you got the wrong blog? Bankruptcy law? What does John Day know about bankruptcy law?

The answer is “absolutely nothing.” Well, that is not quite true; I know enough about bankruptcy law to know when to call a bankruptcy lawyer.

But this opinion caught my eye. In Rousey v. Jacoway the United State Supreme Court ruled that creditors may not seize individual retirement accounts in bankruptcy proceedings. Several other courts had reached a contrary position, reasoning that since one can withdraw money from an IRA before retirement the assets in the IRA should not be protected from creditors. The 9-0 opinion was authored by Justice Thomas.

I wrote yesterday about the bad day the lawyers at Kirkland & Ellis and the folks at Morgan Stanley were having. Well, it got worse.

Matthew McCarrick, the blogger who has the excellent blog I cited yesterday, was kind enough to let me know of a recent development in the case.

Judge Maass has now granted a partial default judgment against Morgan Stanley and has disciplined several K&E lawyers. Perelman need now only prove that he relied on information from Morgan Stanley in connection with the Coleman – Sunbeam sale and that he suffered damages.

Here is a recent law review article that summarizes the state of the law of sanctions in cases involving electronic discovery. The article, entitled “Electronic Discovery Sanctions in the Twenty-First Century,” is authored by a federal court judge and a law clerk.

The lawyers at Kirkland & Ellis, a major law firm with its home office in Chicago, had a real bad day recently after its client got hammered with sanctions.

Financier Ron Perelman has sued Morgan Stanley for fraud, alleging that it helped appliance maker Sunbeam Corp. conceal accounting woes tht reduced the value of Perelman’s investment in Sunbeam. The trial is scheduled to begin shortly.

The trial judge is Elizabeth Maass. She ruled that Morgan Stanley hid emails and hit failings in its search for emails. “Many of these failings were done knowingly, deliberately and in bad faith,” Judge Maass wrote in her order.

Those of you who do any products liability, medical negligence, or commerical litigation know that e-discovery is a hot topic. More and more discoverable data never makes its way to a piece of paper, so a RFP seeking only paper documents will not get you what you hoped to get or are entitled to get.

Likewise, courts are imposing requirements on lawyers to advise their clients to maintain electronic data after a lawsuit has been filed. The failure to act promptly and appropriately can have dire consequences.

A Seattle law firm has created a blog dedicated to electronic discovery. Take advantage of this firm’s resources to educate yourself about and stay current on this important issue.