Straight Talk on Torts

Below is a link to an article written by Jim Marcinkowski entitled Tort reform made simple. It's from Freep.com. Here's a quote from page 3 of the article:

[T]ort reform is the equivalent of choosing not to prosecute criminals so they can remain on the streets to do more crime. We all suffer and pay as a society while the wrongdoers continue to make more profits without penalty....

http://www.freep.com/article/20100406/OPINION05/100405056/1336/Opinion/Tort-reform-made-simple

Happy Easter and Passover!

I hope you have a great holiday weekend.

Firm News: Tenn. R. App. P. 11 Application for Permission to Appeal Filed in Harris v. Horton

This post is related to two previous posts of mine: one on December 15, 2009 and the other on December 29, 2009. It has to do with the following case: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), reh'g denied (Feb. 2, 2010).

An application for permission to appeal the Court of Appeals' ruling was filed on Thursday. This means that the current cite to the case is now: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) ) (Tenn. R. App. P. 11 application for permission to appeal filed Apr. 1, 2010).

Medical Malpractice: Fraudulent Concealment

The Court of Appeals just issued its opinion in Tigrett v. Linn, No. W2009-00205-COA-R9-CV (Tenn. Ct. App. Mar. 31, 2010). The opinion offers a good discussion on the law of fraudulent concealment in medical malpractice cases.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Harrison%20Kerr%20Tigrett%20v%20John%20E%20Linn%20MD%20OPN.pdf

Jury Finds Lawyer Committed Malpractice

Below is a link to an article from Law.com. The link takes you to a story about a case where a jury found a lawyer liable for malpractice because he didn't tell his clients about a settlement offer before a verdict came in lower than the settlement offer.

http://www.law.com/jsp/article.jsp?id=1202447050876&thepage=1

Practice Tip: Questioning a Liar

If you haven't encountered this yet you will, i.e., questioning a liar in a deposition or during trial. A liar's worst enemy is cross-examination. However, can you just declare the witness a liar and expect the jury to believe you? Of course not. So, one may ask: how are you supposed to successfully question a liar? The best way --- the only way --- that I've found to be successful at it is to be prepared. I don't mean know your case inside and out like you're supposed to, you have to have go beyond that and have concrete proof that the witness is lying. You can't attack a witness if you don't have the proof, no matter how bad you want to. Below is a link to an article from the ABA about Bobby Lee Cook. Read the part about his cross-examination of Ms. Kidd in a federal habeas corpus proceeding. This is what I'm referring to when I say that you must be prepared. Here's the link:

http://www.abajournal.com/magazine/article/bobby_lee_cook/

GA Supreme Court Strikes Down Caps in Tort Cases

For anyone who has studied the law and knows how important juries are --- and how valued our founding fathers knew them to be --- they will recognize this as a just result. Below is a link to the online version of The Atlanta Journal-Constitution with the story:

http://www.ajc.com/news/georgia-politics-elections/state-high-court-overturns-392119.html?cxtype=rss_news_128746

A Decedent's Medical Records and HIPAA

Here's a link to a page on the AHIMA's Web site that discusses the proper ways to obtain a decedent's medical records in compliance with HIPAA, to wit: http://journal.ahima.org/2009/08/04/rights-to-deceased-patient-records/.

In Tennessee, medical records must be supplied to a patient or his or her representative within 10 days of a written request seeking them. See T.C.A. § 63-2-101(a) (requiring medical records to be delivered within 10 days of a written request). A small estate can be opened up to have a personal representative appointed to sign the HIPAA authorization to accompany such a request. See id. at §§ 30-4-101 to -105 (the Tennessee Small Estates Act).

Practice Tip: The Importance of an Order Being Final for Purposes of Appeal

Here is Chook v. Jones, No. W2008-02276-COA-R3-CV (Tenn. Ct. App. Mar. 17, 2010). It's a case from the Western Section of the Tennessee Court of Appeals that highlights how important it is to have a final order down for an appeals court to have jurisdiction. Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Barry%20I%20Chook%20v%20Tashawn%20Pirela%20Jones%20and%20Kenneth%20Jones%20OPN.pdf

Medical Malpractice: Dismissal in Favor of Defendant Reversed

The Western Section of the Tennessee Court of Appeals just released its opinion in Taylor v. Lakeside Behavioral Health Sys., No. W2009-00914-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2010). The Court reversed the trial court's dismissal of the plaintiffs' claims because it found that the amended complaint complied with applicable law as to notice pleading, among other things.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Tina%20Taylor%20v%20Lakeside%20BHS%20OPN.pdf

Products Liability Case: Plaintiffs' Claims Preempted

The Western Section of the Tennessee Court of Appeals just issued its opinion in Lake v. Memphis Landsmen, LLC, No. W2009-00526-COA-R3-CV (Tenn. Ct. App. Mar. 15, 2010). The Court held that the plaintiffs' claims, inter alia, were preempted by federal law. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/Clifton%20Lake%20etal%20v%20Memphis%20Landsmen%20OOC%20etal%20OPN.pdf

Need a Court Reporter?

This Web site will help you find one, to wit:

http://psl.ncraonline.org/index.asp.

Summary Judgment for Defendants Reversed

The Tennessee Court of Appeals just released its opinion in Landry v. S. Cumberland Amoco, No. E2009-01354-COA-R3-CV (Tenn. Ct. App. Mar. 10, 2010). The opinion discusses the proper standard for granting summary judgment and how the "cancellation rule" figures into the analysis.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Edward%20P%20Landry%20et%20al%20v%20South%20Cumberland%20Amoco%20et%20al%20opn.pdf

Medical Malpractice: Summary Judgment for One Defendant Reversed on Appeal

Here is another medical malpractice opinion regarding the proper standard for granting summary judgment under Hannan. The case is Turner v. Steriltek, Inc., No. M2009-00325-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2010).

Here's a link to opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Sandra%20Yvette%20Turner%20v%20Steriltek%20et%20al%20OPN.pdf

Useful Web Site on Differential Diagnoses

http://en.diagnosispro.com/

Parliamentary Procedure

Have a question about parliamentary procedure? These two links might have some answers for you.

http://www.tmaa.us/pdfs/plan_meetings_guide.pdf

http://www.tmaa.us/pdfs/motions_guide.pdf

Practice Tip: Correct Result Based Upon Erroneous Grounds

Do you need a case that says even if the trial court's ruling is based upon erroneous grounds it will be allowed to stand because the court reached a correct result? You're in luck! Here are two, to wit:

Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986) ("[we] will affirm a decree correct in result, but rendered upon different, incomplete, or erroneous grounds"); Shutt v. Blount, 249 S.W.2d 904, 907 (Tenn. 1952) ("if the Trial Judge reached the right result for the wrong reason, there is no reversible error").

Another Summary Judgment Case

Here is another post-Hannan and -Martin summary judgment case from the Eastern Section of the Tennessee Court of Appeals, to wit: Dykes v. City of Oneida, No. E2009-00717-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2010).

This case stresses the importance of complying with our state's recently clarified summary judgment standard under Hannan and Martin (Nov 8 & 15, 2008 posts, respectively).

Here's a link to Dykes:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Wanda%20F%20Dykes%20et%20al%20v%20City%20of%20Oneida%20et%20al%20OPN.pdf

New Case on Retaliatory Discharge & Whistleblowing

The case is Burnett v. America's Collectibles Network, Inc., No. E2009-00591-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2010). Here is a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Ambrose%20C%20Burnett%20Jr%20v%20Americas%20Collectibles%20Network%20Inc%20opn.pdf

Criminal Law: Certified Questions

Here is an opinion from the Tennessee Court of Criminal Appeals that discusses the importance of doing certified questions properly, to wit:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/A01/State%20v%20Bradley%20Hawks.pdf

The case is State v. Hawks, No. W2008-02657-CCA-R3-CD (Tenn. Crim App. Feb. 19, 2010).

This case stands for the proposition that Tenn. R. Crim. P. 37 appeals must form the certified question presented to the court in a very specific and not overly broad manner.

Torts: Family Purpose Doctrine

Here is a new case from the Western Section of the Tennessee Court of Appeals on the Family Purpose Doctrine, to wit:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Arlene%20R%20Starr%20v%20Paul%20B%20Hill%20Sr%20and%20Paul%20B%20Hill%20Jr%20OPN.pdf

The case is Starr v. Hill, No. W2009-00524-COA-R3-CV (Tenn. Ct. App. Feb. 18, 2010).

Medical Malpracitce Redefined?

Here's an article from The Tennessean about a new bill in the Tennessee General Assembly that seeks to make it easier for ER doctors to get away with medical malpractice, to wit:

http://www.tennessean.com/article/20100217/COLUMNIST0304/2170359/1003/BUSINESS.

Please read the article.

The bill is bad policy, and worse, it's not supported by the numbers or facts. For example: (1) we have more doctors moving to Tennessee each year due to climate, lack of state income tax, etc.; (2) there have been fewer medical malpractice claim filed in the last two years due to recent legislation that went into effect in 2008 and 2009; and (3) lastly, medical malpractice claims are only a small part of healthcare costs (sometime less than one percent): reducing medical malpractice claims will do little to nothing to reduce healthcare costs.

How a Bill Becomes a Law in the U.S. Congress

I remember watching this clip on TV when I was just a boy. I think it aired in the mid-to-late '70s and early 80s. It is how I first learned how a bill becomes a law in Congress. Here it is:

http://www.youtube.com/watch?v=mEJL2Uuv-oQ

P.S. You'll catch yourself humming the the tune from this clip after you watch it.

Illinois Supreme Court Strikes Down Caps in Medical Malpractice Cases

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ar0E3Dg14ajo

Other Blogs: Part II

Here is a link to another good blog that I follow that is published by David Randolph Smith:

http://www.drslawfirm.com/lexscientia.html

Other Blogs

There is a very interesting blog on the subject of tort law that I thought you all would like to know about. It's called Torts Prof Blog. It is located at: http://lawprofessors.typepad.com/tortsprof/.

John Day brought this blog to my attention a while back. I want to thank John for that. By the way, John's blog it is at: http://www.dayontorts.com/.

Check out both blogs. They are informative and have useful content.

General Sessions Court: Appellant Has Right to Dismiss Appeal Any Time Before Trial

The Tennessee Court of Appeals for the Middle Section issued its opinion yesterday in Crowley v. Thomas, M2009-01336-COA-R3-CV (Tenn. Ct. App. Jan. 27, 2010). The case dealt with an appeal from general sessions court to circuit court. It held that an appellant (in this case the defendant in general sessions court) had a right to dismiss the appeal --- and the whole case --- any time before trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/101/James%20Crowley%20et%20al%20v%20Wendy%20Thomas%20OPN.pdf

Practice point: if you are the prevailing party in general sessions court, and your adversary appeals, it would be wise for you to file an appeal too. That way, your claim cannot be dismissed by your adversary's dismissal of its appeal.

Firm News: Practice Areas

Someone asked me the other day if I would post what areas of the law that I practice in on my blog. That is the reason for this post. Below is a list of the areas that I focus my practice on:

Medical Malpractice
Motor-vehicle/Tractor-trailer Accidents
Personal Injury
Wrongful Death
Product Liability
Criminal Defense

New Trial Not Allowed Under Rule 606(b)

The Tennessee Court of Appeals just issued an opinion that discusses when a new trial is allowed under Rule 606(b) of the Tennessee Rules of Evidence. The case is Gaines v. Tenney, E2008-02323-COA-R3-CV (Tenn. Ct. App. Jan. 21, 2010). Rule 606(b) generally makes juror testimony as to what occurred during deliberations inadmissible except under certain circumstances, which are listed in the rule. See Tenn. R. Evid. 606(b).

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Linda%20Kay%20Gaines%20etux%20v%20Leslie%20McCarter%20Tenney%20et%20al.pdf

Medical Malpractice: Doctor Removes Wrong Kidney

This "never event" (euphemistically called a "hospital acquired condition" by some in the healthcare industry) should never happen, which is why it's called a never event. Here's a link to the story from MSNBC:

http://www.msnbc.msn.com/id/34906847.

Here's a link to a publication that lists certain serious reportable events in healthcare, i.e., never events, to wit: Serious Reportable Events in Healthcare – 2006 Update. Notice that the number 1 never event is surgery on the wrong body part.

New Tennessee Supreme Court Opinion on Comparative Fault: The Original Tortfeasor Rule "Tweaked"

Today, the Tennessee Supreme Court released its opinion in Banks v. Elks Club Pride of Tenn. 1102. No. M2008-01894-SC-S09-CV (Tenn. Jan. 13, 2010). Regarding the original tortfeasor rule, it held that joint and several liability no longer applies, to wit:

[T]he doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury. We hold that an actor whose tortious conduct causes physical harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other’s injury, as long as the enhanced harm arises from a risk that inheres in the effort to render aid. In light of our consistent holding that the doctrine of joint and several liability no longer applies to circumstances in which separate, independent negligent acts of more than one tortfeasor combine to cause a single, indivisible injury, it is improper to maintain joint and several liability in cases involving subsequent medical negligence where there is even less cause....

Id., slip op. at 17.

However, consistent with our state's system of comparative fault, the original tortfeasors' fault is to be compared with the fault of subsequent tortfeasors as described in the opinion. Here's a link to it:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/101/SC%20Alice%20J%20Banks%20v%20Elks%20Club%20Pride%20of%20TN%20opn.pdf

Negligence: Summary Judgment Upheld on Appeal Via a Duty Analysis

The Court of Appeals issued its opinion in Greene v. Titi, No. M2008-02788-COA-R3-CV (Tenn. Ct. App. Jan. 11, 2010). This case dealt with negligent security at a night club. The Court of Appeals held, inter alia, that the security company owed no duty to the plaintiff, which was fatal to the plaintiff's claim. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20OPN.pdf

Judge Swiney concurred in the result but disagreed with the majority as to whether a duty was in fact owed to the plaintiff. Here's a link to that opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/A01/Corey%20Greene%20v%20Yaseen%20Kamleh%20Titi%20dba%20Crush%20CON.pdf

Fourth Anniversary!

Wow! This month marks the fourth anniversary of this blog. I cannot believe it. Four years have gone by so quickly. Thank you all for reading my blog. I really appreciate it. I hope it helps.

Medical Malpractice: A Surgeon's Nondelegable Duty to Remove a Sponge from a Patient's Body Following Surgery

This is a photograph of a laparotomy sponge that was sewn up in my client's abdomen during a surgery that was performed upon him by Richard Geer, M.D. in 2006. At present, this case is up on appeal to determine, among other things, whether a surgeon has a nondelegable duty to remove foreign objects from a patient that were introduced into the wound during surgery. My clients contend that such a duty exists in Tennessee. Their position is supported by the following authorities:

1. 61 Am. Jur. 2d Physicians, Surgeons, etc. § 240, at 343 (2002); id. § 242, at 345-46;

2. 70 C.J.S. Physicians and Surgeons § 99, at 587 (2005);

3. 21 R.C.L. § 33, at 388-89 (1918) (Note: "R.C.L." stands for "Ruling Case Law"); and

4. Tutton v. Patterson, 714 S.W.2d 268, 270 (Tenn. 1986) (citations omitted).

Happy New Year!!

I hope you have a great 2010.

Medical Malpractice: Plaintiff Survives Summary Judgment with a Negligence Per Se Claim

The Tennessee Court of Appeals just issued its opinion in Watkins ex rel. Watkins v. Affiliated Internists, P.C. No. M2008-01205-COA-R3-CV (Tenn. Ct. App. Dec. 29, 2009). The plaintiff was able to survive summary judgment with a negligence per se claim. The court held as follows:

Thus, we must respectfully disagree with the trial court’s finding that TENN. COMP. R. & REGS. 0880-2-.18(7) cannot support the Plaintiff’s claim of negligence per se. We find that it constitutes a standard of care, and that the trial court erred in denying the Plaintiff’s motion to amend the complaint to allege a claim of negligence or negligence per se based on the breach of that standard.

Id., slip op. at 31 (emphasis added). As you can surmise, the defendant failed to comply with the above-referenced rule/regulation. See id.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/John%20Mark%20Watkins%20v%20Affiliated%20Internists%20and%20TK%20Pardue%20MD%20OPN.pdf

Harris v. Horton: Petition to Rehear Filed

I posted about Harris v. Horton on December 15, 2009. A petition to rehear under Rule 39(a) of the Tennessee Rules of Appellate Procedure was filed yesterday.

The current cite to the case, as of December 28, 2009, is as follows: Harris v. Horton, No. M2008-02142-COA-R3-CV, 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009), petition for reh'g filed (Dec. 28, 2009).

Municipal Codes in Tennessee

Here is a link to Tennessee municipal codes, which has been updated as of December 12, 2009, to wit:

http://mtas-notes.ips.utk.edu/public/web.nsf/Web/View+Codes

Merry Christmas!

I hope you all have a great Christmas. I'm looking forward to spending this one with my family.

Interference with and Mishandling of Human Remains; Invasion of Privacy; and Reckless Infliction of Emotional Distress

The Court of Appeals released its opinion yesterday in Harris v. Horton, No. M2008-02142-COA-R3-CV (Tenn. Ct. App. Dec. 14, 2009). The opinion has to do with the causes of action of interference with and mishandling of human remains under the Restatement (Second) of Torts section 868 (1979); invasion of privacy under the Restatement (Second) of Torts sections 652B & 652D (1977); and reckless infliction of emotional distress under the Restatement (Second) of Torts section 46 (1965).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Debbie%20Harris%20et%20al%20v%20Don%20Horton%20and%20Robertson%20County%20opn.pdf

Summary Judgment: Another Post-Hannan Tennessee Supreme Court Case

Yesterday the Tennessee Supreme Court issued its opinion in Mills v. CSX Transp., Inc., No. E2006-01933-SC-R11-Cv (Tenn. Dec. 7, 2009). While this is a FELA case, it offers further explanation and clarification of when summary judgment is appropriate in a Tennessee state court action. Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Charles%20D%20Mills%20v%20CSX%20Transportation.pdf

Miranda Rights

The United States Supreme Court recently heard a case from Florida regarding an accused's Miranda rights. The case is Florida v. Powell. Here's a link to a story about that case:

http://news.yahoo.com/s/ap/20091207/ap_on_go_su_co/us_supreme_court_miranda

Summary Judgment: New Tennessee Supreme Court Case

The Tennessee Supreme Court issued its opinion in Stanfill v. Mountain, M2006-01072-SC-R11-CV (Tenn. Dec. 3, 2009). The opinion offers a good discussion of our state's recently clarified summary judgment standard, which is discussed in my November 8 and 15, 2008 posts to this blog.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20OPN.pdf

Chief Justice Holder wrote a separate opinion, which concurs in part and dissents in part with the majority opinion, to wit:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20Robin%20Lee%20Stanfill%20et%20al%20v%20John%20T%20Mountain%20et%20al%20DIS.pdf

Computation of Time Under the Federal Rules of Civil Procedure to Change December 1, 2009

Here's a link to an article written by Professor Paine on the matter, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/369?ed=24

NPR Blog: "Docs Case for Tort Reform Harder to Make"

http://www.npr.org/blogs/health/2009/11/docs_case_for_tort_reform_gets.html

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

The Court of Appeals just reversed a grant of summary judgment for the defendants in a slip-and-file case. The case is Burks v. The Kroger Co., M2008-02664-COA-R3-CV & M2008-02667-COA-R3-CV (Tenn. Ct. App. Nov. 23, 2009).

Here's the link:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Elizabeth%20Burks%20v%20The%20Kroger%20Company%20OPN.pdf

Happy Thanksgiving!

I hope you all have a great Thanksgiving holiday.

I spent some time yesterday thinking about this past year and the year to come. I am very thankful for many things in my life; I have truly been blessed by God. And for that, I am grateful.

Unfavorable Sixth Circuit ERISA Opinion

The United States Court of Appeals, Sixth Circuit, recently issued an opinion that is unfavorable to tort plaintiffs who have had their medical care paid for by an ERISA plan. The case is The Longaberger Co. v. Kolt, 09a0399p.06 (6th Cir. Nov. 16, 2009).

The opinion is a must-read for all tort-practitioners because of one very important thing: the court specifically disallowed a reduction for attorney's fees from the amount paid back to the ERISA plan.

Here's a link to the opinion:

http://www.ca6.uscourts.gov/opinions.pdf/09a0399p-06.pdf

Admissibility of Autopsy Reports, Etc.

I found this statute while looking for something else and thought I'd share it, to wit:

The records of the division of post mortem examination, the county medical examiner, or transcripts of the records certified to by the chief medical examiner or the deputy medical examiner or the duly appointed representative of the chief medical examiner, and the reports of the toxicology laboratory examinations performed by the testing laboratory or transcripts of the reports certified to by the director of the testing laboratory or the director's duly appointed representative, shall be received as competent evidence in any court of this state of the facts and matters contained in the records or reports.

T.C.A. § 38-7-110(a) (emphasis added).

The Return to Notice Pleading in Federal Court

Here's a recent article on this subject that I found interesting:

http://www.law.com/jsp/article.jsp?id=1202435525918&rss=newswire

Veterans Day: Thanks to Vets

My dad was in the Army and fought in Korea. I have a friend and a mentor of mine who is a West Point grad who fought in Viet Nam. My cousin, who is more like a brother to me, fought in Iraq during Desert Storm; so did a very good friend of mine. I think a lot of our Vets. It is my pleasure to say "Thank you!" to all Vets on this day. Your service is greatly appreciated.

The Return of Seized Property Under T.C.A. § 39-11-709

The Court of Appeals issued an interesting opinion today in McWhorter v. Selby, M2008-01502-COA-R3-CV (Tenn. Ct. App. Nov. 9, 2009). It has to do with the return of property seized by state authorities. Here is the summary of the opinion:

This appeal concerns the return of seized property. In the course of a criminal investigation, the respondents seized personal property from the petitioner. After a year passed with no forfeiture proceeding, the petitioner filed a petition for the return of his seized property, pursuant to Tennessee Code Annotated § 39-11-709. The respondents filed a motion to dismiss or for summary judgment, asserting that they no longer had possession of the property. The trial court granted the motion. The petitioner now appeals. We reverse and remand, finding that the petition was correctly filed in the county in which the property was seized, that it correctly named as the respondents the parties who seized the property, and that the respondents were not entitled to dismissal of the petition on the basis that the respondents had transferred possession of the property.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/James%20C%20McWhorter%20v%20Allen%20Selby%20and%20Sparta%20opn.pdf

Manual on Recurring Problems in Criminal Trials

This is a good resource from the late Judge Vorhees and the Federal Judicial Center, to wit: Donald S. Vorhees, Fed. Judicial Ctr., Manual on Recurring Problems in Criminal Trials (2001), available at http://www.fjc.gov/public/pdf.nsf/lookup/ManRecPr.pdf/$file/ManRecPr.pdf

Criminal Law: Probable Cause

This is a rare post to this blog because it has to do with criminal law. However, it's an important case from the Tennessee Supreme Court on probable cause, to wit: State v. Saine, No. M2007-01277-SC-R11-CD (Tenn. Nov. 4, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/094/SC%20State%20v%20Cedric%20Ruron%20Saine%20opn.pdf

Article on Balance Billing

Here's an AP article from the Miami Herald on balance billing:

http://www.miamiherald.com/news/florida/AP/story/1314183.html

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment

The Tennessee Court of Appeals issued its opinion today in Range v. Sowell, No. M2006-02009-COA-R3-CV (Oct. 30, 2009). The Court held that summary judgment was proper due to a number of reasons, most notably the statute of limitations.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Katherine%20Range%20v%20CM%20Sowell%20Jr%20DDS%20Opn.pdf

There is also discussion in Range on discretionary costs.

Wrongful Death vs. Non-Fatal Personal Injury to the Deceased

The Court of Appeals issued its opinion in Timmins v. Lindsey, No. M2009-00500-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2009). This case discusses the difference between a wrongful death claim and a claim for personal injury to the deceased, which does not cause death, and how the proceeds from each claim are to be distributed.

Here's a link to the case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Timmins%20v%20Lindsey%20OPN.pdf

Medical Malpractice: Plaintiff Fails to Survive Summary Judgment on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Estate of Cusatis v. Casey, No. E2008-01786-COA-R3-CV (Tenn. Ct. App. Oct. 28, 2009). The Court held that the plaintiff's expert failed to satisfy the requirements of Tennessee's medical malpractice act.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/094/Estate%20of%20Jeffrey%20M%20Cusatis%20v%20Robt%20R%20Casey%20MD%20opn.pdf

A Person's Character

This has to do with the law, and almost everything else too. A few years ago, a friend of mine said to me: "You can tell a lot about a person's character by how they treat people when they don't have to be nice to them." That struck a cord with me and I've never forgotten it. I doubt I ever will.

Food for thought.

What is a "Tort"?

You hear people talk about "torts" and "tort reform" a lot, but not may people know what a tort is. According to a leading legal dictionary, here's the definition: a tort is defined as "a civil wrong for which a remedy may be obtained, usu. in the form of damages[.]..." Notice that it's a civil wrong as opposed to a criminal wrong. As we all know, the state or federal government prosecutes criminal wrongs (i.e., crimes).

Tort law exists to protect you and me. For example, if your car gets hit from behind, with you in it, you get hurt, and your car is totaled, tort law says you have a remedy for the harms to your property and body. Further, suppose a young husband with a wife and kids is wrongfully killed by another. The law --- specifically tort law --- says the dead husband's wife and kids have a claim for the wrong done to them. This way, the wife and kids have some form of compensation from the wrongdoer and won't have to rely upon family or others to get by after such a devastating loss. Doesn't this make sense? Doesn't this seem like the right thing to do? Shouldn't we as a society make a wrongdoer accept responsibility? That's what tort law is all about.

This is why I'm so baffled, shocked, and amazed when others speak of tort reform (which should actually be called tort deform); and when they say they want to get rid of our civil justice system. Frankly, the civil justice system that we have now has worked well for hundreds of years. As the old saying goes: "If it ain't broke, don't fix it."

Medical Malpractice: Another Locality Rule Opinion

Yesterday the Court of Appeals issued its opinion in Plunkett v. Bradley-Polk, OB-GYN Serv's., P.C., No. E-2008-00774-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2009). Plaintiffs' expert primarily practiced in a large metropolitan community in Virginia near Washington, D.C. but demonstrated that he was familiar with other smaller communities in Virginia that were similar to the community in Tennessee where the defendants practiced. The trial court held that the plaintiffs' expert was disqualified under the locality rule. The Court of Appeals reversed the trial court and held that it abused its discretion in disqualifying Plaintiffs' expert.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sara%20E%20Plunkett%20v%20Bradley-Polk%20OBGYN%20OPN.pdf

Medical Malpractice, Collateral Estoppel & Comparative Fault

The Tennessee Supreme Court just issued its opinion in Mullins v. State of Tennessee, E2007-01113-SC-R11-CV (Tenn. Sept. 30, 2009). It is a medical malpractice case, which was originally filed in federal court. However, it was later discovered that some of the defendants were immune from suit under federal law and had to be sued in the Tennessee Claims Commission. This opinion illustrates the interplay between federal and state court in Tennessee and how collateral estoppel affects that interplay.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Juanita%20Mullins%20v%20State%20OPN.pdf

I'd like to thank John Day for bringing this opinion to my attention. Thanks John!

John's blog can be viewed at: http://www.dayontorts.com/. You should check it out on a regular basis.

Civil Procedure: Motions to Revise Under Tenn. R. Civ. P. 54.02

Here's a good opinion from the Tennessee Court of Appeals that discusses motions to revise under Rule 54.02 of the Tennessee Rules of Civil Procedure, motions for summary judgment, and the Dead Man's Statute. The case is Johnson v. Tanner-Peck, LLC, W2008-00767-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Clarence%20E%20Johnson%20v%20Tanner-Peck%20LLC%20OPN.pdf

Affirmative Defense Must Be Properly Pleaded

The Court of Appeals recently issued its opinion in Allgood v. Gateway Health Sys., M2008-01779-COA-R3-CV (Tenn. Ct. App. Sept. 22, 2009). The Court held that the defendant waived the affirmative defense of insufficiency of service or process by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Wm%20and%20Rose%20Allgood%20v%20Gateway%20MC%20and%20Dr%20HOffman%20OPN.pdf

This opinion is consistent with prior decisions from the Tennessee Supreme Court regarding affirmative defenses and Rule 8.03. See generally Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000); George v. Alexander, 931 S.W.2d 517 (Tenn. 1996).

Federal Practice: Pleading Standards

It has recently become more difficult for a plaintiff to obtain justice in federal court. The difficulty arises due to more-stringent pleading requirements imposed upon plaintiffs, which must be met in order to survive a motion to dismiss. Read this article that describes the problem:

http://amlawdaily.typepad.com/amlawdaily/2009/09/the-battle-over-pleading-standards.html

The Release of Civil Claims in Tennessee

Here is a recent Court of Appeals' opinion that covers the law in Tennessee on the release of civil claims (i.e., settlements). The case is Peatross v. Shelby County, W2008-02385-COA-R3-CV (Tenn. Ct. App. Sept. 10, 2009).

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/S%20Peatross%20Administrator%20of%20B%20Greenwood%20v%20Shelby%20County%20OPN.pdf

Trial Practice: The Mention of Insurance at Trial

We all know that a defendant's liability insurance coverage should not be intentionally interjected into a personal injury trial. However, what happens when it is mentioned incidentally? The Court of Appeals just issued an opinion on this subject in Steward v. Smith, No. M2009-00048-COA-R3-CV (Tenn. Ct. App. Sept. 14, 2009). The Court of Appeals held that the mention of a defendant's liability insurance coverage will not per se cause a mistrial; nor does it necessitate a remittitur.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Emily%20Steward%20v%20William%20F%20Smith%20III%20OPN.pdf

Sept. 11, 2001

This is the eighth anniversary of the cowardly attacks upon our nation that occurred on September 11, 2001. This is a somber day in our history.

We must never forget those who died that day or their families. And may God continue to bless America.

Slip-and-Fall Case: Summary Judgment for Defendant Reversed

Recently the Court of Appeals issued its opinion in Masters v. Wal-Mart Stores East, L.P., No. M2008-02752-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). This opinion does a good job of analyzing the law of summary judgment in a slip-and-fall case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Victoria%20and%20Michael%20Masters%20v%20WalMart%20Stores%20East%20OPN.pdf

New Governmental Tort Liability Act ("GTLA") Case

The Middle Section of the Tennessee Court of Appeals issued its opinion in Petty v. City of Whitehouse, No. M2008-02453-COA-R3-CV (Tenn. Ct. App. Sept. 1, 2009). The case offers an excellent explanation of the removal of a governmental entity's immunity for an injury caused by a dangerous or defective public improvement under Tennessee Code Annotated section 29-20-204, which is part of the Tennessee GTLA.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Sharon%20Petty%20v%20White%20House%20OPN.pdf

Tort Reform Won't Lower Healthcare Costs

Q: Will tort reform lower healthcare costs?

A: No.

Here's a link to a New York Times piece that you should read, to wit:

http://prescriptions.blogs.nytimes.com/2009/08/31/would-tort-reform-lower-health-care-costs/

Medical Malpractice: Summary Judgment for Defendant Affirmed

The Eastern Section of the Court of Appeals issued its opinion today in Harris v. Jain, No. E2008-01506-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2009). This is an unfortunate case involving adolescent suicide. However, the opinion offers good insight into the general qualifications of experts (e.g., when the common-knowledge exception is inapplicable) in medical malpractice case.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Herb%20A%20Harris%20v%20Pradumna%20S%20Jain%20MD%20OPN.pdf

A Trial Lawyer's Prayer

Grant me the wisdom of Solomon; the patience of Job; and the aim of David.

Abe Lincoln

This is one of my favorite pics of Abe Lincoln. Take a look at this link to see what I'm talking about:

http://www.lawgallery.com/go.php?page=detail&pid=71&gid=2

Judicial Notice

The Tennessee Supreme Court just issued a criminal opinion that has a good discussion of judicial notice starting on page 4. The opinion is State v. Lawson, No. E2007-00330-SC-R11-CD (Tenn. Aug. 24, 2009).

Here's the link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20State%20v%20Neddie%20Mack%20Lawson%20OPN.pdf

New Tennessee Products Liability Case

Today the Tennessee Supreme Court issued its opinion in Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., No. M2008-01427-SC-R23-CV (Tenn. Aug. 21, 2009). The Court answered a certified question of law that it accepted from the United States District Court for the Middle District of Tennessee, to wit: Does Tennessee law recognize an exception to the economic loss doctrine under which recovery in tort is possible for damage to the defective product itself when the defect renders the product unreasonably dangerous and causes the damage by means of a sudden, calamitous event? The Court answered it in the negative.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/093/SC%20Lincoln%20General%20Ins%20v%20Detroit%20Diesel%20Corp%20et%20al%20Opn.pdf

Medical Malpractice: Summary Judgment for Defendant Reversed

The Tennessee Court of Appeals just issued its opinion in Givens, Administrator of the Estate of Jessica E. Givens v. The Vanderbilt Univ., M2008-COA-R3-CV (Tenn. Ct. App. Aug. 18, 2009). Plaintiff never received Defendants' motion for summary, which was granted. Upon finding out what had happened, Plaintiff filed a motion to set aside the grant of summary judgment. Plaintiff's motion was was denied. This appeal ensued.

The Court of Appeals reversed the trial court and held that it abused its discretion in failing to grant Plaintiff's Rule 60.02 motion for relief.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Aubrey%20E%20Givens%20v%20Vanderbilt%20OPN.pdf

Medical Malpractice: Update

This post concerns Cox v. M.A. Primary and Urgent Care Clinic, No. M2007-01840-COA-CV (Tenn. Ct. App. Jan. 30, 2009). It was the subject of my February 2, 2009 post. Today the Tennessee Supreme Court granted M.A. Primary and Urgent Care Clinic and Austin Adams's application for permission to appeal. The new docket number is M2007-01840-SC-R11-CV.

Does a "Free Lunch" Still Exist?

Despite the old saying that "There's no such thing as a free lunch," some lawyers in Tennessee are enjoying one. Why? Because lawyers who do personal injury cases and who do not belong to the Tennessee Association for Justice ("TAJ") and the American Association for Justice ("AAJ") are getting a "free lunch." They simply do not support the organizations that support and improve the very system from which their livelihood is derived.

Moreover, lawyers who belong to the above-referenced organizations have access to a wealth of knowledge and experience to draw from that will benefit their clients.

So, if you're a Tennessee lawyer who handles personal injury cases, please consider joining TAJ and AAJ. Here's their Web sites:

http://www.tnaj.org/TN/

http://www.justice.org/cps/rde/xchg/justice/hs.xsl/default.htm

P.S. If you are already a member, ask someone you know who is not a member to join. Thanks!

Medical Malpractice: 2.78 Million Dollar Jury Verdict Upheld on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Farley v. Oak Ridge Med. Imaging, P.C., No. E2008-01731-COA-R3-CV (Tenn. Ct. App. Aug. 13, 2009). The Court of Appeals upheld the jury's verdict for 2.78 million dollars because the defendants were negligent in diagnosing Mrs. Farley's breast cancer.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Robin%20Farley%20et%20al%20v%20Oak%20Ridge%20Med%20Imaging%20PC%20et%20al%20OPN.pdf

Chain-of-custody Case

This is a rare post on this blog because it involves a criminal case styled State v. Banks, No. 40600738, No. M2008-00044-CCA-R3-CD (Tenn. Crim. App. Aug. 11, 2009). Pages 9-12 of this slip opinion offer a good discussion on the law relating to the chain of custody of evidence offered at trial.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/tcca/PDF/093/State%20v%20John%20M%20Banks.pdf.

Sonia Sotomayor Confirmed

The U.S. Senate confirmed Sonia Sotomayor. She will be our newest U.S. Supreme Court associate justice. Here's a link to the story:

http://www.msnbc.msn.com/id/32312026/ns/politics-white_house?GT1=43001

Municipal Codes in Tennessee

Here's a link to municipal codes for most of Tennessee's major cities, to wit:

http://www.municode.com/Resources/code_list.asp?stateID=42

This may assist a practitioner looking for a cause of action based upon negligence per se. Good luck!

Medical Malpractice: Summary Judgment for Defendant Affirmed

Here is an opinion from the Middle Section of the Tennessee Court of Appeals styled Badgett v. Adventist Health Sys. Sunbelt, Inc., No. M2007-02192-COA-R3-Cv (Tenn. Ct. App. July 31, 2009). The Court held that the plaintiffs' expert did not satisfy the locality rule under the Medical Malpractice Act and affirmed the trial court's grant of summary judgment.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/George%20Badgett%20et%20al%20v%20Adventist%20Health%20Sys%20dba%20TN%20Christian%20Med%20Ctr%20Opn.pdf

Medical Malpractice: Another Summary Judgment for Defendants Reveresed on Appeal

The Eastern Section of the Tennessee Court of Appeals just issued its opinion in Lane v. McCartney, No. E2008-02640-R3-CV (Tenn. Ct. App. July 30, 2009). The Court of Appeals reversed the trial court's ruling, which held that the plaintiff's expert had not demonstrated that the community he practiced in when the alleged tort occurred and the defendants' community were similar (which is required under the locality rule).

The opinion offers a good analysis of what is sufficient to qualify an expert under the locality rule. The Court of Appeals also mentions how similar this case is to Nabors v. Adams, which is the subject of my July 23, 2009 post. See infra.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Nancy%20L%20Lane%20v%20Jodi%20D%20McCartney%20MD%20et%20al%20OPN.pdf

Civil Procedure: The Motion to Revise

Q: How do you go about making changes to an interlocutory order in a Tennessee state court civil action?

A: File a motion to revise. Tenn. R. Civ. P. 54.02 (stating that interlocutory orders are subject to revision at any time prior to entry of judgment).

Please note that final orders are subject to revision under different rules. Tenn. R. Civ. P. 59 & 60.

Here's a link to the Tennessee Rules of Civil Procedure:

http://www.tsc.state.tn.us/OPINIONS/TSC/RULES/TNRulesOfCourt/civlproindex.htm

Medical Malpractice: Summary Judgment for Defendants Reversed on Appeal

The Western Section of the Tennessee Court of Appeals just released its opinion in Nabors v. Adams, No. W2008-02418-COA-R3-CV (Tenn. Ct. App. July 23, 2009). The trial court granted the defendants' motion for summary judgment due to the plaintiff's expert's unfamiliarity with the Memphis, Tennessee medical community (as was required by the locality rule) during his deposition. The plaintiff moved to amend the trial court's judgment under Rule 59.04 of the Tennessee Rules of Civil Procedure with a curative affidavit from her expert, which was denied by the trial court. The appeal followed.

The Court of Appeals held that the affidavit cured the problems with the plaintiff's expert's testimony and that the trial court abused its discretion in not reversing the grant of summary judgment to the defendants.

Here's a link to the opinion:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/093/Samantha%20Nabors%20v%20William%20M%20Adams,%20MD%20OPN.pdf

Walter Cronkite

This post has nothing to do with the law and everything to do with a kid who grew up in the '70s and '80s watching Walter Cronkite on television (i.e., me). He was THE news for my family and me.

I once heard someone say, "If Walter didn't say it happened, it didn't happen!" He would come into our living room every night and talk to us about the news and we took what he said as dead-on accurate --- because it was! After all, he was "the most trusted man in America."

Good bye, Mr. Cronkite. You'll be missed. I wish there were more out there like you.

More on Out-of-state Depositions

http://www.abanet.org/yld/litigation/lit101pdf/Wilkins.pdf

Out-of-State Depositions

Here's an interesting article that I found while doing some research over the weekend, to wit:

Victoria C. Fitlow, How to Take an Out-of-State Deposition, Utah B.J., Feb./Mar. 2001.

I apologize for the cite not being complete in that there's no page number for the first page of the article. I couldn't find one in the online version; nor could I find one in PDF or another version that had been scanned and placed online from the actual magazine (which would have shown a beginning page number).

While it's written from the perspective of a Utah lawyer, there's some good information in there (even though it might be a little dated because it was written in 2001). Even if you don't practice in Utah, it can help point you in the right direction.

Here's the link to the article:

http://www.utahbar.org/sites/litigation/how_to_take_out_of_state_depositions.html

The Declaration of Independence

I watch this every year at this time, to wit:

http://www.youtube.com/watch?v=rMaAtNHAtNI

http://www.youtube.com/watch?v=ZxTvS-kyHzs

Turn the volume up and have a great Fourth!

Medical Malpractice: New Legislation III

The new medical malpractice legislation goes into effect today. Here's an article from the Tennessee Bar Journal, which is authored by John Day, that explains the ins and outs of the new law. The article is a must-read for the medical malpractice practitioner.

Here's the link:
http://www.tba.org/journal_new/index.php/component/content/article/300?ed=20

Tennessee Legislative History

Oftentimes, when a statute is ambiguous, a determination must be made as to the legislative intent behind it to construe the law. This link provides you with information needed to research legislative history in Tennessee, which will assist you in determining the legislative intent behind a law.

Here's the link:

http://state.tn.us/tsla/legislative.htm

More Problems at a VA Hospital

Here's a link to a story from yesterday's New York Times, to wit:

http://www.nytimes.com/2009/06/21/health/21radiation.html?pagewanted=1&_r=1&ref=todayspaper

Medical Malpractice, Wrongful Death & Bankruptcy

The Middle Section of the Tennessee Court of Appeals just issued its opinion in Gordon ex rel. Gordon v. Draughn, No. M2008-02224-COA-R10-CV (Tenn. Ct. App. June 16, 2009).

The opinion offers an excellent analysis of appellate court jurisdiction during an extraordinary appeal, judicial estoppel, and related civil procedure matters, among other things. Specifically, it addresses the issue of a parent's standing to bring a claim for the wrongful death of his or her child due to medical malpractice after the parent has filed for bankruptcy.

Here's the link to the opinion:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/092/Gordon%20v%20Draughn%20OPN.pdf

Tennessee Evidence Law: Four New Amendments Effective July 1, 2009

Tennessee evidence law will have four new amendments effective July 1, 2009. Rules 404(a)(1), 703, 803(26), and 804(b)(2) are the subjects of those amendments. You can read about them at this link, to wit:

http://www.tba2.org/journal_new/index.php/component/content/article/294?ed=19

Medical Malpractice: New Legislation II

Governor Bredesen signed the new medical malpractice legalisation into effect on June 11, 2009. Here is a link to the summary of the bill. I will have a link to the actual bill he signed later on.

http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=HB2233&ga=106

Free Legal Research

http://www.plol.org/Pages/Search.aspx

Medical Malpractice: New Legislation

Tennessee's Medical Malpractice Act has just been recently amended, again, by the General Assembly. The bill is on its way to the Governor. It is anticipated that he will sign it. Once he does, I will have more information for you.

For purposes of information, the bill clears up some of the uncertainties from the prior amendments (Act of Apr. 24, 2008, ch. 919, 2008 Tenn. Pub. Acts 93, codified at Tenn. Code Ann. §§ 29-26-121 to -122) having to do with notice, extension of the statutes of limitations and repose, etc.

Appellate Practice in Tennessee

My friends Donald Capparella and Amy Farrar wrote these two articles on appellate practice. They are excellent articles that will help out a lot if you have an appeal coming up.

Here's the links:

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20Writing%20the%20Brief.pdf

http://www.dodsonparker.com/publications/Tips%20for%20Becoming%20a%20Better%20Appellate%20Advocate-%20The%20Oral%20Argument.pdf