Litigation Process

August 15, 2010

Will My Case Go to Trial?

I was hurt when I was swimming and got run over by a jet ski. I have filed a lawsuit but am scared to death about going to trial. Will there be a trial?

Now days, most cases do not go to trial.

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

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 12, 2010

What is Mediation?

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

I have a personal injury case in Tennessee. The judge has ordered the case to mediation. What does that mean?

Mediation is a process where a person who has no stake in the outcome of the case (the "mediator") helps the parties to the litigation try to resolve their differences. Mediation has increased greatly in Tennessee in the last twenty years.

I had the honor of being appointed by the Tennessee Supreme Court to a commission that drafted the original court rule concerning mediation and other forms of alternative dispute resolution. I served on that commission about twenty years ago.

August 11, 2010

Are Settlement Proposals Disclosed to the Jury?

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

We offered to settle my car wreck case for $40,000. The insurance company for the guy that caused the wreck only offered $22,000. Will the jury be told about what I was willing to take in settlement before trial? Will they be told that I was offered $22,000?

No. Absent extraordinary circumstances, settlement offers from either party are not admissible at a later trial. The purpose of this rule is to encourage people to engage in settlement discussions, and thus usually the proposals made by one side or the other are not admissible in a later trial.

Of course, there are certain exceptions to this general rule but I must say that they are quite rare. An experienced personal injury lawyer can explain whether any exception to the rule is applicable in your case.

August 10, 2010

Why Juries Are Not Told About Liability Insurance?

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

I was in a car wreck and it doesn’t look like we will be able to reach a settlement – the other driver’s insurance company does not want to pay me a fair amount to settle the case. Will the judge and jury know that the other driver has insurance?

No. They may assume that the other driver has insurance, but they will not know he or she has insurance. Absent extraordinary circumstances neither you, your lawyer, nor any of your witnesses can mention that the other driver has insurance.

Why? Because the presence or absence of insurance should not influence the jury’s decision. A person is responsible for the harm they cause. Smart people who can afford it buy insurance to protect themselves from the financial consequences of making a error that hurts someone. But the law does not permit the jury to be told – one way or the other – about insurance because technically it should have no impact on the value of the case.

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 7, 2010

How Much Do Expert Witnesses Charge?

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

I am in a car wreck case. My lawyer says that we need to hire an accident reconstructionist. What will that cost?

First, most lawyers in personal injury and wrongful death cases will advance the expenses associated with the case, including the cost of hiring expert witnesses. Usually, those expenses are re-paid by the client after the successful prosecution of the case out of the settlement monies.

Second, the cost of an expert accident reconstructionist can vary substantially, from $100 per hour to $400 or even $500 per hour. These experts usually charge for travel time. The expert I frequently use charges about $3000 for the initial work-up at the scene of the accident, and additional monies for what must be done at the office.

August 6, 2010

What Does a Court Reporter Do?

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

I had to testify in court recently and there was someone there typing in a little machine, apparently writing everything down. My lawyer says that he was a court reporter. That looks like a fun job. What else do they do?

In Tennessee court reporters record and prepare transcripts of depositions, hearings and trials. Unlike some states, court reporters in civil cases are hired by the people involved in the litigation, and are not employees of the State of Tennessee or any local government.

Court reporters also may record and prepare transcripts for witness statements, corporate meetings, and other gatherings of people.

August 4, 2010

What Are Requests for Production of Documents?

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

I am in a lawsuit and the other side wants me to give them documents. I don’t want to share my evidence with them. Can they make me turn over my documents before trial?

Yes. The Tennessee Rules of Civil Procedure have a special rule (Rule 34) that permits one side in litigation to ask the other side for documents that are "reasonably calculated to lead to the discovery of admissible evidence." Practically, this means that one side to a lawsuit can ask the other side for anything reasonably related to the case.

If you don’t turn over requested information, you risk being sanctioned by the court. If you fail to turn over information that is helpful to you and you later try to use that document at trial, the judge can exclude it from evidence as if it never existed. Finally, it is possible that for a judge to dismiss your lawsuit (or order that the other side wins) if he or she finds that your failure to produce requested documents was willful.

July 29, 2010

Why Does An Insurance Company Insist on Documentation?

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

I was hurt when I fell in on a slippery floor in a fast food restaurant. I broke my left arm. I missed six weeks of work on my construction job. My lawyer says that we need a statement from my employer stating that I missed six weeks of work and indicating how much money I would have made had I worked. Why is that necessary? I don’t want to hassle my boss with this.

Insurance companies need documentation because some people don’t tell the truth about what happened to them or how the injuries they suffered cost them money. The claims adjuster for the insurance company has to make sure that his or her file demonstrates that they did a good job gathering evidence to properly evaluate the claim. This includes seeking information from other people, like your boss, to back up what you say.

I am sure that you are telling the truth about the time you missed from work. The insurance adjuster may think you are, too. But the adjuster needs to be able to prove to his or her boss that your claim was thoroughly and properly evaluated, and that is why documentation is necessary.