A Tennessee Legal Resource

I was doing some research on the Web and I came across this page:

http://law.vanderbilt.edu/library/research/tennessee
_legal_publications.html.

There's some good stuff there (e.g., Tennessee specific resources on evidence, civil procedure, etc.). It shows you where to find a resource in Vanderbilt's law library too.

Enjoy!

Tennessee Local Rules of Court

Here's a link for the local rules throughout Tennessee:

http://www.tsc.state.tn.us/geninfo/courts/LocalRules
/LocalRules.htm

I'd safe this link so that you can access it in the future.

Wrongful Death Proceeds: How Are They Distributed?

In Tennessee, wrongful death proceeds are distributed under the laws of intestate succession. Kline v. Eyrich, 69 S.W.3d 197, 202 n.3 (Tenn. 2002).

Also, the proceeds pass free of creditors' claims. Tenn. Code Ann. sec. 20-5-106 (a),(b).  There may, however, be exceptions to this premise: namely, Medicare subrogation, etc.

Calaway: The Petition to Rehear

For those of you that haven't heard, and who have followed Callaway, here's the link to the per curiam order of the Tennessee Supreme Court regarding the petition to rehear, inter alia:

http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/062/calawayord.pdf

For purposes of explanation, Calaway held that a minor's medical malpractice claim is not tolled during minority. Based upon prior case law, most everyone familiar with Tennessee law thought minors' claims were tolled. Justice Barker writing for the Court held that this was a matter for the legislature because the Tennessee Medical Malpractice Act does not allow for tolling of such a claim.

Hope You Have a Happy Holiday

Happy Easter or Passover to you all.

Sorry if there has not been a substantive post in a while, I've been swamped. I will get back to the grind on Monday. Meanwhile, I hope everyone has a great holiday.

Personal Injury Claims & Bankruptcy

Have you ever had a personal injury client come to you and they're in bankruptcy, or have been recently discharged? If you have, you need to read this case: Headrick v. Bradley Cnty. Mem'l Hosp., No. E2005-00925-COA-R3-CV, 2006 WL 236931, at *2-7 (Tenn. Ct. App. January 31, 2006) (no application for perm. to appeal filed as of March 27, 2006). It largely depends upon whether the debtor's case was a Chapter 7 or 13, and when the debtor's cause of action accrued.

You should also look at Witko v. Menotte (In re Witko), 374 F.3d 1040, 1043-44 (11th Cir. 2004) for a general view of the effects of bankruptcy law on a post-petition tort suffered by a debtor.

Headrick is available at:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/061/headrick.pdf

Curious About Tennessee Verdicts?

If you're curious about Tennessee verdicts, try this site: http://juryverdicts.net/

This site has jury verdicts for other states, and federal verdicts, too.

Health Cost Controls Inc. Part II

For those of you who follow subrogation or related issues in Tennesee, you must read this case:

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/061/
HealthCostControlsOPN.pdf

This is the second round of a fight that is far from over.

Another Great Book

Here's a great book. It's called Facts Can't Speak for Themselves, and it's written by Eric Oliver. It's available from the National Institute for Trial Advocacy ("NITA") at a cost of $65. If you have a trial practice, you've got to get -- and read -- this book!

Here's the link to NITA's Web site:
http://www.nita.org/bookorder.asp?Action=Show&Part=1-55681-790-8.

A Great Federal Court Reference Book

If you practice in federal court much you don't need this book. However, if you are a little rusty on certain points of federal practice, this is a great book to have on your shelf. It is the Federal Civil Rules Handbook (2006 ed). It's available from Thompson-West. It is easy to use and has a lot of information in one place.

Orthopaedic Research

Do you have an orthopaedic subject that you need to research? If so, here's a great place to start: http://www.wheelessonline.com/. This is Duke Orthopaedics online version of Wheeless' Textbook of Orthopaedics.

This site is handy if you're reviewing medical charts at you desk and need to find an answer right then and there.

Discovery Abuse

I'm writing an article about discovery abuse and ran across my friend's post on his blog today about the same subject (see www.dayontorts.com). I thought this would be worth sharing.

For those of you in Tennessee, take a look at the comments to Rule 30 of the Tennessee Rules of Civil Procedure. Most of us have experienced some form of discovery abuse in depositions, the comments let you know what you can do about them (e.g., seek sanctions).

Another Helpful Book

Here's a helpful book: The Merck Manual of Medical Information. It's an easy-to-use resource if you have a question about a medical condition, symptoms, or treatment.

It's not the ultimate resource, but it is an inexpensive book that can lead you in the right direction when doing research.

Good luck!

Practice Pointer: Drafting Complaints

Here's a good practice pointer for drafting complaints. When drafting your complaint, take a look at the applicable pattern jury instructions to establish your prima facie case (assuming the facts will support your allegations). It's reverse engineering to ensure that you have pled the essential elements of your causes of action. It also helps in your research too.

Good luck!

Products Liability in Tennessee: Defective or Unreasonably Dangerous

In Tennessee, there is a deviation from section 402A of the Restatement (Second) of Torts (1965). Section 402A requires that a product be both defective and unreasonably dangerous. Tennessee, however, uses the disjunctive and does not require both. Instead, liability is imposed if a product that causes injury was in a defective condition or was unreasonably dangerous. See Cruze v. Ford Motor Co., 1999 WL 1206798, at *10 (Tenn. Ct. App. 1999).

Workers' Compensation: Determining Partial Dependency in a Death Case

Do you know how to determine the amount to be paid to a partial dependant in a death case under Tennessee's Workers' Compensation Law? The formula is set out in Sullivan Elec. Co. v. McDonald, 541 S.W.2d 112, 117-19 (Tenn. 1976).

This issue doesn't come up very often, but, when it does, it's nice to know where to look.

Tort Law Education

How many of you have heard of a case called Grimshaw v. Ford Motor Co. I bet you have, except you know it as the Ford Pinto case. The case where Ford knew there was a problem with the Pinto and that it would blow up if it was rear-ended. Ford chose not to fix it. As a result of Ford's conduct people died and were seriously injured.

There was a trial and Ford was found to be at fault. Also, punitive damages were awarded against Ford in the amount of $125 million and later remitted (reduced) to $3.5 million by the judge. The verdict was sustained by the California Court of Appeals.

If you'd like to read more about it, here's a link to the opinion:

http://online.ceb.com/CalCases/CA3/119CA3d757.htm

You're safe in your cars -- and so are your kids -- partly due to the efforts of trial lawyers. The only way that your average person can hold a company like Ford or Merck accountable for their conduct is via a lawsuit, and possibly a trial. That is the only way.

So, if you are ever rear-ended and your car doesn't explode, thank a trial lawyer. And remember this, the current push for tort "reform" doesn't seek to protect your interests. It seeks to protect the interests of big business -- at your expense.

Another Book

Okay, I had promised a few weeks back that I would start recommending a book (or two) each week. If my memory serves me right, I offered up two a few weeks back and haven't suggested another book since then. So, here's another: The Redbook: A Manual On Legal Style, by Bryan A. Garner (West 2002). Bryan Garner is the current Editor-in-Chief of Black's Law Dictionary and a known authority on legal writing.


The Redbook is an easy-to-use guide that can help answer a legal writing question in a hurry. I use it on a regular basis and it helps; I think it will help you too.

A Tennessee Legal Malpractice Note

Once a case settles, do you think that a former client can bring a subsequent claim for legal malpractice against his or her attorney for malpractice that occurred in the case that settled? They can! At least they can in Tennessee -- New York, too. Take a look at Parnell v. Ivy, 158 S.W.3d 924 (Tenn. Ct. App. 2004).

Congressionally Certified Copies

Have you ever had to get a copy of a document that was certified under acts of Congress? I have...twice in ten years. The first time was when I was in law school working for a law firm; the second time was the other day. You normally use this method of certification to obtain copies of out-of-state wills, birth certificates, and marriage licenses. When you call to get one, people will talk to you like you're crazy. Bottom line: Getting congressionally certified copies is not easy!

Why go to all this trouble you ask? Well, a congressionally certified copy of any document is entitled to be treated the same way in a foreign state as it would be in the state of its origin (i.e., for the most part, the documents are self-authenticating and not subject to exclusion based upon hearsay). This means that the congressionally certified copies are admissible. Sometimes you need to have them to prove your case, e.g., proof of a marriage, death, and so on.

The copies can be of judicial and non-judicial documents. See 28 U.S.C. §§ 1738, 1739.

Take a look at Sections 1738 and 1739. They can help you prove an element of your case.