Day On Torts

Tennessee Jury Trials in Tort Cases by the Numbers

John Day — Tue, 09 Feb 2010 03:26:21 -0600

How many tort cases are tried in Tennessee in the last year? The Annual Report of the Tennessee Judiciary gives us the answer.

Here is the data for the year ended June 30, 2009:

Total jury trials in all tort cases: 260

Total number of medical malpractice trials: 26

Total jury trials in the larger counties:

Shelby: 48

Davidson: 65

Knox: 40

Hamilton: 23

Anderson: 8

Rutherford: 8

Sumner: 7

Washington: 6

Sullivan: 6

Hamblen: 6

Coffee: 5

Putnam: 4

Wilson: 4

The discussion of the "vanishing trial" is a reality.

Kentucky Lawyers Sued By Client

John Day — Mon, 08 Feb 2010 04:32:51 -0600

A plaintiff in a car accident lawsuit has become a legal malpractice plaintiff.

Sharon Langford has sued a law firm with office in Kentucky and Florida and made some very serious allegations. Basically, she was alleged to seek health care for her injuries from a specific provider and that there was a business relationship between the provider and the lawyers. She also alleges that the provider and the law firm advised her not to submit the bills to her health insurer and that she did not receive documentation of the charges made by the health care provider.

She alleges that the undisclosed relationship between the health care provider and the lawyers resulted in financial and other losses. Here is a copy of the complaint.

I have no idea whether the allegations of the complaint are true and, quite frankly, I hope they are not. I believe that there is nothing wrong with a lawyer referring a client to a competent doctor for treatment. Likewise, there is nothing wrong with a lawyer recognizing a health care provider's lien on a recovery. But these allegations of misconduct go far beyond that and, if true, are something that should be condemned by all responsible lawyers.

Thanks to Shannon at The Kentucky Trial Court Review for informing me about this litigation.

Tennessee Nursing Homes - 5th Worst in United States

John Day — Thu, 04 Feb 2010 03:24:53 -0600

Tennessee's nursing homes rank the 5th worst in the United States, according to an analysis done by the Tennessean.

The February 3, 2010 article points out that

[a]bout 15,000 nursing homes nationwide got ratings of one to five stars, with five being the best, from the U.S. Centers for Medicare and Medicaid Services. The ratings are based on inspections, complaint investigations, staffing levels and other nursing home survey data collected in 2008 and 2009.

More than 60 percent of Tennessee's 319 nursing homes got low ratings — one or two stars — for staffing by registered nurses.

Overall, the state ranked in the bottom five. Only West Virginia, Texas, Georgia and Louisiana had lower average scores. However, Tennessee fared better than it did a year ago, when the star ratings earned the state's nursing homes a third-worst designation.

The article goes on to explain that

[a]dvocates say the staffing level required by state law is not enough to care for nursing home residents, and that carries consequences: ignored bedside calls, medication errors and unanswered questions. Under Tennessee law, each patient should have at least two hours of direct care each day, including 24 minutes of a licensed nurse's time. Standards in neighboring states vary, with Mississippi requiring 2.8 hours of direct care and Arkansas mandating more than 3.8 hours.

This data is revealed to Tennesseans at the same time that the health care industry seeks to limit its liability for non-economic losses (including punitive damages) caused by injuries and deaths caused by care at nursing homes and other health care facilities to $1,000,000.

If enacted into law, this cap on damages will directly impact the value of every nursing home case because these residents have no loss of income or future earning capacity and thus their losses are principally non-economic damages such as pain, suffering, disfigurement and loss of consortium. In addition, a jury will occasionally award punitive damages against a nursing home that recklessly causes injuries to patients. A cap on damages limited the downside risk for the health care provider and its insurance company because they know that a jury cannot hold them fully responsible for the harm caused by their conduct.

I urge you to consult your state representative or state senator and urge them to oppose this legislation. Here is the contact information for your representative and senator.

Go to this site to see the ratings of nursing homes in Tennessee and across the nation.

The Ref is a Jerk! Can I Sue?

John Day — Wed, 03 Feb 2010 07:57:44 -0600

My daughter was hurt in a soccer game because the ref refused to reign in a reckless player on the opposing team. Can I sue? My son is devastated because he was improperly called out on strikes by a blind umpire. Can I sue?

Setting aside the merits of these complaints, or the wisdom of pursing such a claim, Tennessee law gives a relatively high level of immunity to sports officials. Under T. C. A. Section 62-50-201, a “'sports official' means any person who serves as referee, umpire, linesperson or in any similar capacity in supervising or administering a sports event and who is registered as a member of a local, state, regional or national organization that provides training and educational opportunities for sports officials."

Section 62-50-202 provides that "[a] sports official who administers or supervises a sports event at any level of competition is not liable to any person or entity in any civil action for damages to a player, participant or spectator as a result of the sports official's act of commission or omission arising out of the sports official's duties or activities."

Section 62-50-203 limit Section 202 and says that "civil immunity [is not granted] to a sports official who intentionally or by gross negligence inflicts injury or damage to a person or entity."

Thus, under Tennessee law, a person trying to sue a ref has a very difficult hill to climb. Indeed, absent intentional conduct or misconduct under the influence of drugs or alcohol, I have a difficult time imagining how a claim against a ref would ever survive a motion to dismiss.

Legislators Propose Caps on Damages Recoverable in Medical Malpractice Cases

John Day — Tue, 02 Feb 2010 03:45:15 -0600

A bill has been introduced in the Tennessee General Assembly to cap "non-economic" damages in medical malpractice lawsuits to $1,000,000, regardless of the degree of harm suffered by the patient.

Non-economic damages are defined as " damages for physical and emotional pain and suffering, inconvenience, discomfort, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, punitive damages, and all other nonpecuniary losses of any kind or nature."

The effort to limit patient rights comes notwithstanding the fact that medical malpractice filings are dropping significantly and there are less than seven jury verdicts for patients in the entire state per year.

Regular readers will recall that Tennessee has very few million dollar verdicts in any type of tort case. For the fiscal year ending July 31, 2009, there were just 15 verdicts of $1,000,000 or more in tort cases in the entire state. Those verdicts include economic and non-economic losses.

This legislation is yet another attempt by health care providers and their insurers to seek special treatment in our court system. We worked with the providers in the last two years to make it more difficult to file medical malpractice lawsuits so that we could reduce cost and stress on doctors, and the re-payment is that they now want to limit damages recovered by those who have meritorious cases.

It never stops.

Read the bill here. The bill is sponsored by two leading Republicans.

Tennessee Medical Malpractice Claims Report - 2008

John Day — Mon, 01 Feb 2010 03:36:14 -0600

The Tennessee Medical Malpractice Claims Report for 2009 (which reports data for 2008) contains lots of information of interest to lawyers who represent Tennesseans in medical malpractice claims. Last week I wrote about the number of claims closed in 2008 and the amount paid on these claims. Today I will drill down a little deeper on one topic - resolution of claims involving death.

About 1960 Tennesseans die each year as a result of medical malpractice in a hospital. (The number that die as a result of malpractice in a doctor's office or nursing home or dentist's office or elsewhere has not been estimated to my knowledge.) Yet, in 2008, there were 538 medical malpractice claims resolved in cases where the allegation involved malpractice-related death of the patient in all settings.

The total amount of money paid to resolve the 538 death claims was $60,663,764, or an average of less than $120,000 per claim. I hasten to add that gross payment figure includes claims on which no money was paid. The report does not indicate how many closed death claims resulted in no payment whatsoever. However, the report does indicate that payments were made in only 15% or so of all closed claims in 2008. If that statistic is true in the wrongful death area, it means that payments were made in only about 80 wrongful death cases in 2008 and the average payment was about $750,000 per claim.

Now, I know I am making a whole lot of assumptions here. But as we try to understand this data, we have to make assumptions because (a) the method of reporting does not give us information on key issues and (b) confidential settlements mandated by defendants prevent us from having more accurate data.

A couple of concluding thoughts. First, remember that we are talking about the date of closing claims, not the date of death. Thus, these deaths occurred over a number of years. Yet, it is not unreasonable to assume that there are 450 - 600 wrongful death claims asserted each year. What happened to the hundreds of other wrongful death claims arising from malpractice? They were not filed, either because (1) the survivors were ignorant of the circumstances giving rise to the death, (2) it was not economically feasible to pursue the claim because the medical malpractice insurance industry has gone to extraordinary lengths to make the prosecution of the claims so expensive; (3) the claims were viable but a lawyer contacted by the family did not realize that a claim could be successfully asserted or (4) the survivors did not pursue the claim for religious or other reasons.

Second, there were only about 80 paid wrongful death claims in 2008 (once again, I know I am making some assumptions here - I'm doing the best I can with limited data.) Even if the paid claim number is two or three times that, there are hundreds and hundreds of valid claims every year that are not pursued for one of the reasons specified above.

Third, there were hundreds of wrongful death claims asserted for which no payment was made. This could have occurred because (a) there was no proof of malpractice; (b) there was no proof of causation; (c) the plaintiff was unable to qualify the necessary experts because of Tennessee's goofy locality rule; (d) the plaintiff's lawyer lacked the knowledge or money to bring an otherwise valid case to a successful resolution; and (e) the plaintiff's lawyer had to drop the case because defense tactics made it to expensive to pursue it from an economic standpoint. It is anticipated that the new medical malpractice certificate of good faith statute will address (a) and (b). The statute came into effect on October 1, 2008, so it had no effect whatsoever on these 2008 closed-claim statistics.

NOTE: As I re-read this, I see the need to clear up one matter. A "claim" is not the same as a lawsuit. If there are four defendants in a wrongful death lawsuit, that will almost certainly be reported as four different claims even though there is only one death. Likewise, if multiple defendants settle a defendant case, this would be reported as multiple claims being resolved. For the year ending July 1, 2009 there were only 426 medical malpractice lawsuits filed in the prior twelve months in the entire state and obviously not all of those cases involved the death of the patient. Thus, when the Report indicates that 80 wrongful death claims were resolved in the 2008 calendar year that almost certainly does not mean that the litigation for 80 decedents were resolved but rather claims against 80 defendants (or potential defendants) were resolved. The number of actual decedents would have been less and, indeed, it would not be unlikely that the number of decedents was less than 60 and perhaps less than 40.

Tennessee Adult Protection Act

John Day — Fri, 29 Jan 2010 03:02:31 -0600

The Tennessee Adult Protection Act, T. C. A. Sec. 71-6-101 et seq, creates civil action for compensatory and, as appropriate, punitive damages when "adults" covered by the act are victims of abuse or neglect, sexual abuse or exploitation and for theft of money or property whether by fraud, deceit, coercion or otherwise. Those covered by the Act fall within this definition of adult:

“Adult” means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person's own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services; provided, however, that a person eighteen (18) years of age or older who is mentally impaired but still competent shall be deemed to be a person with mental dysfunction for the purposes of this chapter

The Act also permits recovery of attorneys' fees in certain circumstances.

The Pennsylvania Fiduciary Litigation Blog has an interesting post that shares a checklist on how to determine if someone has been a victim of undue influence. (I hasten to add that the original source of the data was the Florida Probate and Trust Litigation Blog.) The Undue Influence Worksheet "is based upon the IDEAL protocol, which combines knowledge from the fields of psychiatry, psychology, and sociology regarding the mechanisms of human manipulation, with extensive review of statutes, case law, and legal theory. IDEAL describes those psychological and social factors that commonly co-exist in undue influence situations. IDEAL stands for Isolation, Dependency, Emotional Manipulation and / or Exploitation, Acquiescence and Loss.

The worksheet explains each of the factors and has a form for gathering and organizing information.

Good stuff. This form will help you analyze financial cases that you are thinking about bringing under the Tennessee Adult Protection Act.

Truck Drivers - No More Texting

John Day — Wed, 27 Jan 2010 04:30:19 -0600

Truck drivers who text while on the road are now violating federal law. On January 26, 2010, the federal Transportation Department said it is prohibiting truck and bus drivers from sending text messages on hand-held devices while operating commercial vehicles.

Tennessee banned texting while driving effective July 1, 2009.

The Transportation Department said that "FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers."

2009 Medical Malpractice Claims Report Released

John Day — Tue, 26 Jan 2010 05:17:45 -0600

The Tennessee Department of Commerce and Insurance has released the 2009 Medical Malpractice Claims Report. Despite its title, the Report reveals data for calendar year 2008.

This is the fifth report issued by the Department and contains more different types of data than released in previous years because of a change in the reporting law. Today I will report on some of the data and will address the balance in later posts.

In 2008, there were 3154 medical malpractice claims closed in Tennessee. (More than one "claim" can arise in a single case; a claim is defined as "a demand for money damages for injury or death caused by medical malpractice; or a voluntary indemnity payment for injury or death caused by medical malpractice.") Of those claims 43 were resolved through ADR, 459 were resolved through settlement, 425 were resolved through judgment, and 2227 were otherwise resolved.

I do not understand the difference between those cases resolved by ADR and those resolved by settlement, given the difficulty settling any case without going through a mediation. However, the numbers appear to tell us that almost 70% (2227 out of 3154) of claims are dropped before suit is filed or by voluntary dismissal. How do we know that? Because we know the other 30% or so were settled or resulted in a judgment.

As indicated, 425 were resolved by the entry of a judgment. How many were judgments for the plaintiff? Five. Just over one percent. In other words, there were 420 claims resolved by judgment, and while the exact numbers are unreported it is reasonable to assume that many were resolved by summary judgment and a lesser amount by judgment for the defense after a trial.

The total amount of damages paid for the five cases in which a plaintiff received a judgment was $790,000, or just under $200,000 per claim. The total damages received in the claims that were resolved by settlement or ADR was about $118,500,00, or about $230,000 per claim.

Payments of judgments were down over 90% from a year earlier. Payments by settlement or ADR were about the same as they were in 2007.

The largest reported judgment was $1,150,000. Obviously, that judgment was not paid because it exceeds the total amount of damages paid for all judgments. (if a case is settled post-judgment the amount is recorded as a settlement.)

There were 5,780 claims pending at the end of 2008.

I will share more of the data contained in the Report in a later post.

Tennessee Injury Claims Against Foster Parents

John Day — Fri, 22 Jan 2010 08:07:10 -0600

As a Tennessee injury lawyer I receive calls from time to time from parents of children who have been injured by a foster parent. Indeed, several years ago our firm represented a parent of a pregnant teenager who was killed as a result of careless driving by her foster parent.

Can a person injured by the negligence of a foster parent sue the foster parent? Can the parents of a foster child sue the foster parent if the foster parent negligently causes the death of the foster child? In Tennessee, the answer is "no."

Under Tennessee law, a foster parent is deemed to be a state employee and is immune from a lawsuit for injuries or death caused by the negligence of the foster parent. Here is the provision from the Tennessee Code that defines "state employee" to include foster parents:

'State employee' means any person who is a state official, including members of the general assembly and legislative officials elected by the general assembly, or any person who is employed in the service of and whose compensation is payable by the state, or any person who is employed by the state whose compensation is paid in whole or in part from federal funds, but does not include any person employed on a contractual or percentage basis. 'State employee' includes a foster parent under a contract with the state of Tennessee to provide foster home care for children in the care and custody of the state and within the confines of the foster parent-child relationship.

Tenn. Code Ann. Sec. 8-42-101 (3) (A) (emphasis added).

This does not mean that the personal injury or wrongful death victim has no rights, however. Because the foster parent is treated as a state employee, the State of Tennessee is liable for the negligent acts and omissions of the foster parent under many circumstances, including the operation of a motor vehicle. Here is the relevant statute.

Ordinarily, a personal injury or wrongful death case against the State of Tennessee must be filed in the state Claims Commission. The case is heard by one of three claims commissioners, not a jury. The cases are defended by the Tennessee Attorney General's office. The Tennessee Rules of Civil Procedure and Evidence generally apply during the preparation and trial of these cases, with some exceptions. Damages are determined as they are otherwise determined under Tennessee law, but no punitive damages may be awarded. The maximum damage award against the State of Tennessee in claims arising out of the negligence of state employees is $300,000 per person, $1,000,000 per occurrence.

What happens when a foster parent intentionally harms a foster child? That will be the subject of a future post.

Tip Concerning Trying Cases Away From Home

John Day — Wed, 20 Jan 2010 03:36:13 -0600

Trial Lawyer Tips has a great post about steps to take to before picking a jury in another city, county, or state.

An excerpt:

To get familiar with my out of town trial venues, I used to order the local paper several months before trial and read it each day or week. By the time trial rolled around, I knew more about the local news than most of the jurors.

I started using this technique a little over 20 years ago and firmly believe that there is a distinct advantage of going into a "new" venue with some knowledge of community happenings. The Internet has made it easier to get this sort of information.

Proposed Consumer Product Safety Commission Database Concerns Product Liability Defense Lawyers

John Day — Mon, 18 Jan 2010 03:55:52 -0600

Thompson Hine is a 99-year old law firm with offices in eight different cities. Its products liability lawyers work do work in the aerospace, automotive, chemical, electrical, mechanical, medical device and pharmaceutical areas.

And they are concerned about the implications of Section 212 of the Consumer Product Safety Improvement Act of 2008, which requires the Consumer Product Safety Commission (CPSC) to implement a publicly accessible, searchable database of consumer product incident reports.

The firm reports that:

[o]n September 10, the CPSC issued its "Report to Congress Pursuant to Section 212 of the Consumer Product Safety Improvement Act of 2008 - Implementation of a Searchable Consumer Product Safety Incident Database," which outlines the CPSC's planned rollout of this database. As described below, this database has the potential to have far-reaching business and legal implications for how manufacturers, distributors and retailers of consumer products report and respond to consumer complaints.

The concerns? First, the CPSC's control of the database "creates the potential for an increased number of, and potentially less efficient, investigations and recalls implemented by the CPSC."

Second, there are concerns on how companies should monitor or use the new site.

Third, "the database will serve as an easily accessible tool for plaintiffs in future litigation to locate potential evidence of "alleged other similar incidents" or evidence to support a punitive damages claim. "

Fourth, "the database will undoubtedly serve as a new resource for an always creative plaintiffs' bar searching for potential lawsuits. The searchable capacities of the database will enable plaintiffs' attorneys to search for potential personal injury or consumer claims, as well as to identify potential class actions or mass torts."

Thompson Hine reports that the target deadline for the new public database is March 11, 2011.

Read the entire paper here.

Distraction.Gov - A Website About Distracted Driving

John Day — Mon, 18 Jan 2010 03:03:39 -0600

The National Highway Traffic Safety Administration has set up a website called "Distraction.Gov."

The website reveals some interesting statistics:

In 2008, there were a total of 34,017 fatal crashes in which 37,261 individuals were killed.
In 2008, 5,870 people were killed in crashes involving driver distraction (16% of total fatalities).
The proportion of drivers reportedly distracted at the time of the fatal crashes has increased from 8 percent in 2004 to 11 percent in 2008.
The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group (12%).
Motorcyclists and drivers of light trucks had the greatest percentage of total drivers reported as distracted at the time of the fatal crashes (12%).
An estimated 21 percent of 1,630,000 injury crashes were reported to have involved distracted driving.
Nationwide, those drivers observed visibly manipulating hand-held electronic devices increased from 0.7 percent to 1.0 percent.
Some 1.7 percent of drivers 16 to 24 years old were observed visibly manipulating hand-held electronic devices, up from 1.0 percent the previous year.
More drivers in Western States were observed manipulating hand-held electronic devices (2.1%) than in the other regions of the country (from 0.4% in the Northeast to 0.8% in the Midwest).
The use of hand-held devices increased the most in the West, from 0.6 percent in 2007 to 2.1 percent in 2008.
The observed use rate of hand-held electronic devices was higher among females (1.2%) than among males (0.8%).

The site also contains a list of states which ban driving while using cell phones or while texting.

Doctors and Hospitals Seek Special Treatment for Emergency Room Malpractice

John Day — Fri, 15 Jan 2010 14:57:24 -0600

Legislation has been introduced that would require a patient suing an emergency room doctor, on-call specialist, or hospital providing emergency room services to prove that the negligence of the provider rose to level of gross negligence.

Given the declining number of medical malpractice cases and the fact that there are only 6 or 7 verdicts for patients in any given year, one must wonder about the need for such legislation. It springs from arrogance, greed, or both.

That being said, I support the legislation, with one little amendment that says this:

(a) Every Internet or print advertisement or other publication by a hospital or doctor that provides any type of emergency treatment in the emergency room of a hospital shall include the following language in bold type of not less than 18-point font on each page:

This health care provider is not liable for its negligence in caring for you in an emergency room unless you or, if you die, your family can prove gross negligence. Under Tennessee law, gross negligence is a conscious neglect of duty to care for you or a callous indifference to whether you are injured or die as a result of our care. No emergency room in any adjoining state is protected by such a law.

(b) Every radio or television advertisement by a hospital or doctor that provides any emergency treatment in the emergency room of a hospital shall have the three sentences immediately above read out loud as a part of the advertisement.

(c) Any hospital which or doctor who agrees to waive the gross negligence standard in a writing filed with the Department of Health no later than July 1 of each year beginning in 2010 need not comply with the requirements of (a) or (b) and may advertise that (i) it has agreed to be liable for negligence and (b) may identity the health care providers that have chosen to be liable only for gross negligence.

I mean, if you really think you are entiltled to special treatment, why would you be embarassed about telling your prospective patients about it?

A Wise Word From a Wise Lawyer: "Always Draft Angry Briefs. Never File Them."

John Day — Fri, 15 Jan 2010 05:40:31 -0600

If you do not regularly read Max Kennerly's Litigation and Trial blog you are not taking advantage of a wonderful opportunity to learn. I have never met Max, but his blog is well-written, thoughtful, and informative.

Need to be convinced? Read his post titled "Always Draft Angry Briefs. Never File Them."

An excerpt:

We've all been there. We've all read briefs and heard oral arguments that were (at least to us) irrelevant, unfounded, or directly contradicted by controlling precedent or the plain meaning of the statute. ...

But a brief is no place to question the intellect or motives of opposing counsel. Get mad, then get over it.

Excellent advice from which all can benefit. Thanks, again, Max.

List of Themes For Use at Trial

John Day — Thu, 14 Jan 2010 04:51:06 -0600

The Civil Litigation Blog has shared a list of themes that can be used in personal injury trials. While there is nothing particularly original on the list, I do not recall ever seeing such a list of potential themes in one place.

1,600,000 Crashes From Cell Phone Use and Texting While Driving

John Day — Wed, 13 Jan 2010 06:38:13 -0600

The National Safety Counsel announced yesterday that it estimates at least 28% of all traffic crashes – or at least 1.6 million crashes each year – are caused by drivers using cell phones and texting.

From the organization's press release:

The estimate of 25% of all crashes -- or 1.4 million crashes -- caused by cell phone use was derived from NHTSA data showing 11% of drivers at any one time are using cell phones and from peer-reviewed research reporting cell phone use increases crash risk by four times. The estimate of an additional minimum 3% of crashes -- or 200,000 crashes -- caused by texting was derived by NHTSA data showing 1% of drivers at any one time are manipulating their device in ways that include texting and from research reporting texting increases crash risk by 8 times. Using the highest risk for texting reported by research of 23 times results in a maximum of 1 million crashes due to texting; still less than the 1.4 million crashes caused by other cell phone use.

Organizing for Trial

John Day — Wed, 13 Jan 2010 04:29:19 -0600

Once again we turn to Paul Luvera for guidance on some aspect of trial practice. Paul is an extraordinary lawyer who is kind enough to share his knowledge with us on a regular basis via his Plaintiff Trial Lawyer Tips blog.

This time, Paul shares his method of organizing for trial in non-complex cases.

An excerpt:

The first thing I did was to collect all the materials and physically stack them in piles by year. I then organized the piles chronologically. I put the material in one large notebook arranged in chronological order using numerical dividers. There is an index with tab number and identification of the document. By looking at the index I can trace the first event through the last one and have the tab number for any document that corresponds to that date. A set of the hearing rules are also in this notebook under a divider. This notebook becomes my "resource notebook."

Paul goes on to describe how he takes that information and moves it into trial notebooks.

I use a system similar to Paul, except I tend to have a timeline developed before depositions in the case. (Paul's case was an administrative hearing, and therefore it is possible that there were no depositions taken in the matter.) Creation of a solid timeline early in the case, with additions to it as more information is known, helps me keep a solid grasp on the case at a glance.

I encourage you to read the remainder of Paul's post and see if you can pick up any other tips to help you in your practice.

Lawyer Advertisement From Texas

John Day — Tue, 12 Jan 2010 03:41:22 -0600

Check out this commercial.

I don't think this type of advertising would impact the lawyer's credibility before the average Texas jury. Do you?

Thinking About the Unexpected When Preparing for Trial

John Day — Mon, 11 Jan 2010 11:59:00 -0600

I am an optimist. Nevertheless, I attempt to have a "Plan B" in the event things go wrong.

For example, consider a case that Rebecca Blair and I tried a few years ago. We needed a computer in the courtroom. But because both of us have been around long enough to know that things can go wrong, we brought a back-up computer with the same information loaded on it that we had loaded on Computer 1.

Computer 1 died. No problem. Plug in Computer 2. It worked for a day or so. Then it died. A third computer was brought from the office with relatively little downtime (we had the info we needed on a CD) and it survived until the end of trial.

I use this example to demonstrate that even with appropriate planning stuff happens. If you don't plan at all, I can guarantee you that stuff will happen.

Here is an excellent blog post on this subject from a wonderful blog, Winning Trial Advocacy Tips. Titled "What's Your Emergency Plan for Jury Trials, " the post does a very nice job describing why we need to plan for the unexpected and gives several fine examples of what can go wrong at trial.

Here is an excerpt from the post:

Being a trial lawyer is kind of like being a top notch surgeon performing an appendectomy. Removing the appendix is easy. Heck, I could probably teach you how to do it in a 30 minute seminar. But surgeons don’t get paid the big bucks because they know how to remove the appendix — they get paid the big bucks because they know how to respond to the thousand different complications that can arise while you’re removing it.

That’s why you get paid the big bucks. Trying cases is pretty easy. A high school student could probably do it if everything went according to plan. But things never go according to plan, and that’s why you get paid the big bucks. Script out your responses to all of the different scenarios before trial begins, and you’ll be the lawyer representing the prevailing party, rather than the lawyer apologizing to your client.

I agree with everything but the last sentence. Even perfect preparation cannot turn every bad case into a winner. But solid preparation can make it much more likely to win the cases you should win and perhaps even win a few you would have otherwise lost.