Litigation Process

June 14, 2010

Lawyer Offers Potential Client Money for Living Expenses

I got hurt in a truck wreck. I spoke to a Tennessee lawyer and he said I had a really good case. I have lost my job as a result of the wreck and my finances are a complete mess. This lawyer said that if I would hire him to help me on the case he would loan me $1000 per month while the case was pending and that I could pay him back, without interest, when the case was over. Is there any reason I shouldn’t do that?

Yes. You should not do it because the lawyer’s offer of money to you was a violation of Tennessee ethics rules for lawyers. A lawyer can advance the costs of pursing the case, but cannot give a client money for living expenses or a fee for hiring the lawyer for the case.

So, you might ask, why should you care? The lawyer’s ethics are not your problem. You need money. The lawyer is willing to loan it to you. Whether he or she violates ethics rules is really none of your concern.

June 11, 2010

Number of Tennessee Medical Malpractice Trials

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

How many medical malpractice trials are there per year in Tennessee?

The Tennessee Jury Verdict Reporter gathers this data. For the 12-month period ending November 30, 2009, there were 32 medical malpractice trials in the state of Tennessee. The patient won nine cases and the health care providers won 23.

Davidson County (Nashville) had seven of those trials. Shelby County (Memphis) had five. In each county the providers won one more case than the patients.

June 10, 2010

How Does A Jury Know What The Law Is?

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

How does a jury know what the law is?

The judge tells the jury what the law is. The judge does this twice – once at the beginning of the case and once at the end of the case. The jury is told that it is its job to determine the facts based on the law given to them by the judge.

To see how jury instructions fit into the entire trial picture, read our Legal Guide called “Understanding What Happens At Trial of Personal Injury and Wrongful Death Cases in Tennessee.”

June 7, 2010

Negligent Transmission of Herpes

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

My wife gave me herpes. She did not have herpes when we got married. She confessed that she has been sleeping around. We are getting divorced. Can I sue her for giving me herpes?

Yes. A person can sue another for negligent (or intentional) transmission of a sexual disease. If you prove that you contracted the disease from her, you can recover damages for your medical expenses, future medical costs, and pain, suffering and loss of enjoyment of life.

One practical problem with this type of lawsuit is that any money you win can only be collected out of your wife’s assets and future income. If she doesn’t have any money and won’t be making much in the future you will have difficulty collecting any money from her. In addition, filing this type of suit can greatly increase tension in the divorce proceeding and, if children are involved, may impact your relationship with your wife as the two of you work to parent your children. These factors and others need to be considered before filing this type of lawsuit.

June 2, 2010

Why Does My Opponent Get To See My Tax Records?

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

I am a plaintiff in a personal injury lawsuit. Why does my opponent get to see my tax records?

If you are claiming you lost income as a result of the injuries you received in the incident that gave rise to the lawsuit, the defendant has a right to determine if you lost the income you say you lost. One way of determining that is looking at your income tax records.

However, the fact that tax records may reveal whether you lost income that does not mean that your entire tax return can be seen by the defendant. Tax returns contain lots of information other than income, and that information has nothing to do with whether you lost income.

An experienced personal injury lawyer will determine whether it is appropriate to release your entire tax return to the defendant or whether only some portions of it (such as your W-2, which is a statement of income from your employer) is appropriate.

May 26, 2010

Why Do Judges Whisper to Lawyers?

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

Why do lawyers and the judge whisper between one another during a trial up by the judge’s bench?

Usually, they are discussing whether certain testimony or other evidence should be heard or seen by the jury. The law of evidence governs what jurors should hear and see during a trial. When the lawyers are trying to introduce evidence before a jury or keep the jury from hearing it the discussions of the evidence will often reveal what the evidence is. If the law says that the jury shouldn’t hear or see that evidence then it would be foolish to have the jury hear the discussion about the evidence. This type of conference is called a “side bar.”

Sometimes, the judge will ask the jury to leave the courtroom during these discussions. This is called a “jury-out hearing.”

May 21, 2010

Physical Therapy is a Pain

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

I got hurt in an accident and my doctor said I should go to physical therapy. The therapist is 20 miles away and it is very inconvenient to go to therapy. Plus, it doesn’t seem to do any good. Will it hurt my case if I just stop going?

First, let me suggest you set the thoughts about your legal case aside for a moment. Your doctor prescribed physical therapy because he or she thought it would help you. It might not. But it might. The daily or even weekly progress you see in physical therapy might be small, but you still need to go to physical therapy because you want to do what you can to reach a full recovery.

Going to physical therapy may not help your case, but not going as the doctor asked you to do will probably hurt your case. Insurance adjusters and jurors may conclude that you may not have been having the problems you say you were having (or are having) if you followed your doctor’s advice. If you have to go before a jury in your case the jury will be told that it is your responsibility to minimize your damages.

May 20, 2010

Can I Be Sued?

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

A neighbor fell off my porch the other day and he had to be taken to the doctor with a broken arm. Can I be held responsible for this?

Only if it is determined that you did not keep the premises in a reasonably safe condition for him and other guests on your property. Therefore, it is important to understand how he came to fall of the porch. Did the railing break? Was it rotten? Did he fall over the rail? Was he sitting on the rail? Was there no rail there at all? Did local building codes require a rail? And so on.

There are all sorts of questions that must be asked to determine whether you can be held responsible for what happened.

May 19, 2010

Will My Stupid Mistake Many Years Ago Hurt My Case?

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

I was arrested for underage drinking when I was in high school 10 years ago. I was put on probation for a year. Now I got hurt in an car accident and the other driver’s lawyer wants to know if I have ever been arrested. Do I have to tell the truth about it – it happened so long ago? Is it going to come out in court that I was arrested?

Don’t worry about it. In a lawsuit your opponent gets to ask you questions about your background. The area of questions that can be asked during the "discovery" period in a lawsuit is very broad, much broader than questions that will be permitted in court at trial. So, your opponent can ask about prior arrests and you should tell the truth about what happened.

Will it come out in court? It almost certainly will not if you tell the truth about what happened. If you lie and your opponent finds out about it, what happened will probably come out in court, not because of what happened 10 years ago but the fact that you lied about it when asked in the lawsuit.

May 18, 2010

My Case Has Settled? Now What?

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

My personal injury case just settled and I have $45,000 after paying my medical bills and my lawyers. I have never had this much money in my life. What do I do with it?

You are not seeking legal advice here – this is financial advice. However, many of our clients have asked this question over the years and I will share some general thoughts.

First, you should set aside some money for what many people call an “emergency fund.” The emergency fund should be three or, even better, six months of the money that you need to operate your household. It should be kept in a savings account or a money market account and should only be used for emergencies – an unexpected car repair or medical bill or to meet normal expenses if you lose your job. You will gain an unbelievable peace of mind by having this amount of money in the bank.