Articles Posted in Litigation Process

In Manhattan this week, jurors are debating whether Matthew Martoma is guilty of insider trading while at SAC Capital Advisors, a prominent hedge-fund. For an injury lawyer, Mr. Martoma’s trial raises an interesting question: what kind of background searches are being performed these days?  

I ask this question because Mr. Martoma’s background contains some serious red flags. While attending Harvard Law School, Mr. Martoma forged his transcript in an attempt to get a clerkship with a federal judge. When the fraud was discovered, he was expelled from Harvard. Thereafter, he changed his name — prior to that time, he had been Mr. Ajai Mathew Thomas. Despite being expelled from Harvard, Mr. Thomas aka Mr. Martoma was admitted to Stanford, a highly-competitive school that has its choice of candidates and certainly does not need to take disgraced students out of some type of financial necessity. And after leaving Stanford, Mr. Martoma found his was to SAC Capital Advisors. So one is left to wonder if Stanford or SAC Capital Advisors performed any type of due diligence in researching Mr. Martoma’s background before accepting him as a student or hiring him as an employee.

Failing to perform a background search in some instances can result in liability. For instance, if a daycare hires someone with a history of a sexual abuse and then the employee sexually abuses a child at the daycare, then the daycare could be held liable for the assault under a theory of negligent hiring. By failing to perform due diligence before hiring the employee, the daycare placed a person unsuited for the job in a position where they could inflict harm on a student in their care.

There were five jury trials in personal injury and wrongful death cases in Davidson County (Nashville) Tennessee during the month of November 2013.

Two of those cases were slip and fall calls, also known as "premises liability" cases.  In one of those cases, the jury returned a verdict for the injured party for $450,000.  In another case, the Davidson County jury returned a verdict for the person or company that was sued, finding that the injured party was 75% at fault in causing the accident.  Under Tennessee law a finding of 50% or more fault on the part of the injured party means that the injured party can recover no monetary award whatsoever.

Two car accident cases were also tried by the jury and both resulted in a jury award for the injured party.  In one case the jury awarded $45,000 and in the other case the jury awarded $198,849.   No information is readily available about the injuries in these cases.

Let me begin with a confession: I married a defense lawyer. Well, a former defense lawyer. She has since left the "dark side" and joined our firm. But before she found the light, she was involved in all types of injury cases for insurance carriers and major corporations. Below is list of some of the things she used to love to uncover in her cases as it typically lowered the amount of compensatory damages her clients would have to pay (and sometimes destroy the case entirely).

1. Plaintiffs (the injury victim who brings the lawsuit) who are inconsistent in their reports of how their injuries affected them.  For instance, one injury victim claimed his injuries prevented him from cleaning his house yet records subpoenaed from his health club showed he was consistently able to go to the gym and work out.

2. Plaintiffs who refuse to concede that ANY of their problems have improved since the accident. While there are definite exceptions, most things tend to improve with time. They may never go back to pre-accident status, but they do get better. 

A scheduling order is a pretrial order that governs the progress of a case as it proceeds toward a trial. 

A scheduling order provides deadlines for taking depositions, conducting written discovery, identifying and deposing expert witnesses, filing certain types of motions, and other deadlines appropriate to the case.  It may also set a trial date.  Rule 16 of the Tennessee Rules of Civil Procedure gives the court a right to impose a scheduling order.

The lawyers for the parties in the case can agree on a scheduling order or the court may impose a scheduling order.  In Tennessee, a scheduling order can be changed if a party shows good cause for doing so.

A structured settlement is an agreement reached between a plaintiff (the person who files a lawsuit) and the insurance company for the defendant (the person or company that is sued) to pay a personal injury or wrongful death settlement to the plaintiff over time rather than paying the money in a lump sum.  

Such settlements can be structured to pay out the money over any period of time, from a year to a lifetime.  The payments can be a combination of monthly payments and "bonus" payments every five years.  There is virtually no limit as to how payments can be structured; the financial and other needs of the individual determine how a structured settlement will work.

Every structured settlement includes the payment of interest, and this interest is tax-free assuming that the appropriate rules are followed.  

Unlike Kentucky, Tennessee does not have a law that permits each patient to have a free copy of his or her medical record from a health care provider.  Tennessee law permits health care providers to charge for each and every copy of a medical record.

It is important to have a copy of certain medical records to evaluate every personal injury and wrongful death claim, including car and truck accident cases and each and other cases.  The number of providers from whom records must be obtained depends on the facts and circumstances of each case.  Some cases require us to obtain medical records from only one or tow health care providers.  Other cases require us to obtain records from ten or more health care providers.  The cost of obtaining records can be as little as $75 to well over $1000.

Our firm pays for the cost of acquiring the medical records for our clients. Even the event the case is successful, our fee agreement with our client provides that our client reimburses us for the out-of-pocket expenses we incur in the case, including the cost of obtaining medical records.

A subpoena is a court order requiring a person to appear in court to give testimony, produce documents or things, or both.

Subpoenas are issued by the clerk of the court in which the case is pending.  In Nashville and Davidson County, Tennessee, there is a $6.00 fee to issue a subpoena.  if the witness lives in Davidson County and the lawsuit is pending in Davidson County, the Davidson County Sheriff’s office will serve the subpoena for $9.00.

Different charges apply if the witness must be served in a different county.  The Clerk of Court will answer questions about the charges in such cases.

A jury is considered "deadlocked" when it is unable to reach an unanimous decision.  In Tennessee personal injury and wrongful death trials a jury of twelve people sits in judgment of the case and all twelve must agree on all issues.  When they fail to do so they are "deadlocked."

A judge faced with a deadlocked jury has two choices.  First, the judge can send the jury home, declare a mistrial, and order the parties to another trial.  This is an expensive option, both for the parties to the lawsuit and the justice system, because of the money that will be spent on the new trial.

The other option is for the judge to give what is known as a "dynamite" or "Allen" charge.  A dynamite or Allen charge is a jury instruction that strongly encourages each juror to reconsider his or her views and work toward compromise.  It tells jurors that a new trial will be very costly to the parties and that the jurors should work harder to solve their differences.