Death Cases

November 1, 2010

How Many Jurors Do I Need to Win?

I have a personal injury case going to try in Cookeville, TN next month. How many jurors need to vote for me for me to win?

You will probably have a 12-person jury. That is the typical number of jurors in a civil jury trial in Tennessee. You and your opponent may agree to a lesser number of jurors, but you will almost certainly have 12 jurors (and one or more alternate jurors) hear the case.

All twelve jurors must vote for you for you to win the case. Some states permit a lesser number (10 of 12, 9 of 12) but in Tennessee the jury verdict must be unanimous unless the parties to the lawsuit agree on that the verdict may be something other than a unanimous verdict. For obvious reasons, the defense will rarely agree to such a proposal.

October 25, 2010

Some Lawyer Called Me About My Car Wreck

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

I was in a car wreck last week. I was hurt pretty bad. I got home from the hospital last night and a lawyer called me and said that he wanted to represent me in my case. I have no idea who this guy is or how he got my name and telephone number. Nobody in my family has ever heard of him. Can he call me like this? Should I hire him? He said he could get me a lot of money.

This lawyer is a scumbag – not only should you not hire him but you should report him to the Tennessee Board of Professional Responsibility. Rule 7.3(a) of the Rules of Professional Conduct says this about soliciting a potential client by telephone: "(a) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not solicit professional employment by in-person, live telephone, or real-time electronic contact from a prospective client who has not initiated the contact with the lawyer and with whom the lawyer has no family or prior professional relationship." The Comment to the rule explains why is exists:

[1] There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a specifically targeted recipient subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

October 11, 2010

How Quickly Will My Case Settle?

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

I was in a car wreck about 6 months ago. The other driver admitted fault. My medical bills are about $25,000. I have been released by my doctor. My lost wages are $2000. How quickly will my case settle?

At the outset you need to understand that your case may not settle at all. In Tennessee the insurance company does not have a duty to settle your case and in fact does not even owe you a duty to fairly evaluate your case. It can settle a case, or not settle a case, on whatever schedule it wants to put in place.

However, if the insurance company wants to settle the case it needs to have information from your lawyer. At an absolute minimum, the company needs the accident report, your medical records and bills, perhaps some of your previous medical records, proof of lost wages from your employer, and an understanding of how the injuries have impacted your life. To the extent you claim a permanent injury, future medical expenses, future loss of earning capacity, or other damages, the insurance company will need proof of that.

October 6, 2010

When Does A Personal Injury Case Become A Wrongful Death Case?

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

My dad was dropped in a nursing home. He broke his hip. He never recovered from it and died two months later. Do we have a wrongful death case or a personal injury case?

First, no one can tell you if you have a case at all without doing an investigation into the circumstances of the fall.

Second, if you do have a case, it will only be a personal injury case unless a doctor will testify that more likely than not the death was a result of the fall. To make this determination, a doctor will need to review your father’s medical records. An autopsy may also be necessary.

September 30, 2010

Value of a Wrongful Death Case

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

My wife was killed in a tractor-trailer wreck. The wreck was not her fault. What is this case worth?

That question is impossible to answer without a great deal more information. Was your wife working outside the home? What was her income? What was her age? What was her state of health before the wreck? How many children does she have? Do any of those children have special needs that required her to play a bigger role in their lives after they reached the age of 18 than the ordinary adult child?

These and many, many more questions must be answered before any lawyer can give you a reasoned opinion on the value of a wrongful death case.

September 27, 2010

Can a Sibling File a Wrongful Death Lawsuit?

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

My brother got killed in a car wreck. Can I file a wrongful death lawsuit for him?

You can file a wrongful death lawsuit for your brother under only limited circumstances. First, if you are named the executor of his will you have the right to file suit. Second, if the court names you the administrator of your brother’s estate you will have the right to file suit. Third, if you brother was not married, had no children, and your parents are dead you would be considered "next of kin" and you would have a right to file suit.

The right to file suit is different from the right to control the litigation. For instance, if your brother was married and his wife is competent, it is very possible that a court would let your sister-in-law control the lawsuit even if you were named executor of your brother’s estate.

September 11, 2010

What Happens If the Person That Hurt Me Dies?

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

I was hurt in a head-on automobile accident. The driver that crossed the centerline and hit me died in the wreck. Do I have legal rights against him even if he is dead?

Yes. Although you can’t sue someone who is dead, you can sue his estate. If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits).

August 13, 2010

Can Police Accident Reports Be Used as Evidence of How the Wreck Occurred at Trial?

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

The police accident report says that I was not at fault in my wreck and that the other driver was at fault. Can I used the police report as evidence at a trial to prove the wreck was not my fault?

Not in Tennessee state court. A rule of evidence specifically excludes police accident reports from the types of public records that can be admitted into evidence at trial to show how an accident occurred.

Why? Because unless the officer actually saw the accident the police report is only the officer’s opinion about what happened. That opinion may be based on solely on whether the officer believes one person or the other and may have little value in determining what actually happened.

August 9, 2010

The Other Driver Doesn’t Have Enough Insurance!

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

I was in a bad car wreck. I had $50,000 in medical bills and missed eight weeks of work (I make $800 per week as a mechanic). I am probably going to have to have another surgery. My doctor also says I will have arthritis for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what he did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)

August 8, 2010

Can A Father Who Did Not Pay Child Support Recover Money When His Child Gets Killed in A Car Accident?

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

My child was killed by a drunk driver. He was 10 years old. I want to file a lawsuit. His no-good father, who never paid child support as ordered by the court and did not visit my son for the for the five year period after our divorce, says he is going to file a lawsuit, too. Can he do that? Does Tennessee law permit him to get money from the death of our son when he had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit.

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child. Thus, to cut off the father’s right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the father intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.