Day on Torts

February 13, 2012

Deterrence and the Tort System

Andrew F. Popper, a law professor at American University, has written an article entitled "In Defense of Deterrence."

Here is an abstract of the article:

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation — the tort system itself — has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others.

February 12, 2012

Checklist For Avoiding Traps on Cross-Examination

by The Law Offices of John Day, P.C.

The Cross-Examination Blog has published a helpful checklist on avoiding errors in preparing for and conducting cross-examinations that will be helpful to trial lawyers handling tort cases.

The blog is written by Ronald Clark, the author of the Cross-Examination Handbook, which I reviewed last year. Here is the review.

Ronald recommends that we AVOID:

February 10, 2012

Tennessee Counties With No Jury Verdicts for Plaintiffs

by The Law Offices of John Day, P.C.

What to know more about the explosion of personal injury and wrongful death jury verdicts in Tennessee? A report released by the Tennessee Administrative Office of the Courts revealed that the following Tennessee counties did not award one penny in damages in any tort case for the year ended June 30, 2011:

District 1 – *Johnson, *Unicoi

District 3 – Hamblen, Hancock, *Hawkins

February 9, 2012

$1,000,000 Verdicts in Tennessee Tort Cases

by The Law Offices of John Day, P.C.

There were ten jury and non-jury awards of $1,000,000 or more in Tennessee tort cases in the year ending on June 30, 2011.

The number of million dollar verdicts was exactly the same as it was ten years earlier, a year when there were 50% more trials.

These are the counties with million dollar verdicts or judgments:

February 8, 2012

Damage Awards Decline Substantially in Tennessee Tort Cases

by The Law Offices of John Day, P.C.

Tennessee jury verdicts were down substantially in 2010-11, according to data released by the Tennessee Administrative Office of the Courts.

Total damages awarded in tort cases in state court were only $32,051,326, down by a little over 60% from a year earlier, when the total damages awarded was over $91,000,000. These numbers include jury and non-jury cases.

The average verdict or judgment was $168,691, down over 600% from a year earlier, when the average verdict was over $400,000. The average verdict includes only those trials in which the fact-finder returned an award of money damages. It does not include defense or no-money awards.

February 7, 2012

Number of Jury Trials Continues to Decline in Tennessee Tort Cases

by The Law Offices of John Day, P.C.

The number of jury trials in Tennessee tort cases continues to decline, according to data released by the Tennessee Adminstrative Office of the Courts.

In the one year period ending June 30, 2011, there were only 222 jury trials in tort cases in Tennessee state courts. Ten years ago, the period ending June 30, 2002, there were 412 jury trials in tort cases. Looking at the ratio between cases filed and cases tried to a jury, jury trials are down over 50%.

Is this trend due to mediation? I doubt it. True, there are lots of mediations in tort cases today, but mediation has been around for more than 20 years and was a firmly entrenched part of tort practice in Tennessee well over 10 years ago.

February 5, 2012

Personal Injury Filings Decline Again in Tennessee

by The Law Offices of John Day, P.C.

New data out from the Tennessee Administrative Office of the Courts puts data behind what those of us who practice tort law knew: tort filings are down in Tennessee.

The AOC’s Annual Statistical Report shows that tort filings for the one year period ending June 30, 2011 were 10,576. Ten years ago, in the one year period ending June 30, 2002, there were 12,166 tort cases filed in the state.

Total tort case filings in the six counties with the largest population were as follows:

February 4, 2012

Damages for Death or Serious Injury of a Homemaker

by The Law Offices of John Day, P.C.

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

January 31, 2012

Arkansas Supreme Court Limits Legislature’s Efforts To Determine Who Can Testify As An Expert

by The Law Offices of John Day, P.C.

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to give testimony as an expert witness in a medical malpractice case.

Broussard’s medical malpractice case was dismissed on summary judgment after her expert witness was excluded under Arkansas Code Annotated section 16-114-206 (Repl. 2006). Broussard argued that the requirement in section 16-114-206(a) that proof in medical-malpractice cases must be made by expert testimony by “medical care providers of the same specialty as the defendant” violates section 3 of Amendment 80 of the Arkansas Constitution.

In Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14 (Jan. 19, 2012), the Arkansas Supreme Court held that "the provisions in section 16- 114-206(a), which provide that expert testimony may only be given by “medical care providers of the same specialty as the defendant,” violate the separation-of-powers doctrine, Amendment 80, and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.

January 25, 2012

Burger With Everything – Hold the Loogie

by The Law Offices of John Day, P.C.

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person. (I guess you would never do that to a hamburger you intended to eat yourself.) And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger? Deputy Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind. He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping. But Bylsma was smarter than that.