As you know, some lawyers just cheat. Some are just ignorant of the law and make mistakes. But others know the law and cheat.
Lawyers who are ignorant about the law need to be educated and warned. But cheaters need to be hammered. Judges who see lawyers repeatedly violate the rules – especially the same rule – need to come down on them.
An appellate court in Florida has made this point loud and clear. Read this excerpt:
The Civil Rules Commission in Tennessee has proposed to change Rule 8 of the Tennessee Rules of Civil Procedure and require a plaintiff to state an ad damnum.
Under current law, a plaintiff probably must state an ad damnum at some point, except in medical negligence cases. Why do I say a plaintiff probably must do so? The law is unclear. Nothing in the rules requires an ad damnum but Rule 15 prohibits a plaintiff from moving to amend the complaint post-verdict to increase the amount sued for. The concern is that if no specific amount is listed the amount of the verdict may be capped by whatever amount is in the complaint and if the only amount listed is, say, the jurisdictional amount some court somewhere might apply that as a cap. Once again, there are no cases on point (except in the medical negligence area).
I am opposed to the proposed rule change and, in fact, I do not think a plaintiff should be able state the amount sued for in the complaint. No good can come of it. I intend to write in opposition to the proposed rule. If you want to do so, write to the Supreme Court Clerk.
A defendant in a product liability case cannot introduce proof of the absence of other claims unless strict guidelines are met, according to the Third Circuit Court of Appeals.
The plaintiff’s lawyer “argued that there was no foundation for such testimony because [defendant’s] engineer had admitted in his deposition that [it] kept no records relating to either safety complaints by [its] customers or past accidents involving [the product involved in the incident].”
Judge Smith said “Most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred.” Judgment in favor of the defendant was reversed.
Tennessee and a minority of other states require that all 12 jurors agree on the verdict? This article comments on the practice.
I disagree with the requirement of unanimity. It imposes an unfair burden on the plaintiff, particularly in these times of massive anti-plaintiff sentiment fueled by aggressive campaigns of the insurance, health care, and manufacturing industries.
The Legislature approved the rule changes proposed by the Tennessee Supreme Court. The changes were effective on July 1, 2005.
Here is a copy of the revisions. All were adopted except proposed Rule 1A; it was withdrawn by the Court. The changes to the rules of evidence are found beginning on page 32 of the Order.
Any lawyer can benefit by reading a good closing argument in any case. Of course, it is better to see it live – the paper cannot capture the emotion of an argument. But if you don’t have time to sit around in courtrooms all day a transcript is the way to go.
Here is the transcript of the argument of Thomas Mesereau, the attorney for the King of Pop.
Thanks to New Orleans lawyer A.J. Levy for letting me know how to find it. I met A.J. 12 or 15 years ago at an ATLA meeting; he was and is ahead of the technology curve. His blog is Out of the Box Lawyering.
Ok – this article is not about the trial of a personal injury or wrongful death case. But it is about trial. And it is about the benefits of the use of technology at trial.
We have used Powerpoint in trial for over five years. We first used digital video clips to impeach over three years ago. It is time-consuming to prepare. It is expensive.
It is also very effective.
Preparing for trial is, by nature, hectic. If you are not wired enough to power the Titans’ Coliseum on a night game, you are not paying enough attention. It’s helpful to have a checklist to see if all of the applicable basics are covered.
This trial preparation is set out in phases – sixty days before trial, thirty days out, at the pre-trial conference, and in the final days before trial. The courtroom is a much friendlier place when you thoroughly prepare yourself.
Download file.
The checklist is not carved in stone. It is not a “must do” list. Rather, it is simply as list of the matters that you may want to consider in the course of your trial prepartion.
Day on Torts