Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

 I have a trial in two weeks in Nashville.  What should I wear to court?  It is a jury trial.

That always depends on the type of case being heard by the jury.  We generally advise our clients tost to dress in such a way to show respect for the court. This usually means a suit or coat and tie.  For women, a conservative dress or skirt and blouse is appropriate.  Shoes should be clean, polished and conservative.

In some Tennessee counties it is appropriate to wear slacks or pants and a clean, pressed shirt. Jeans, shorts, tank tops, t-shirts and sandals should never be worn to court.  Also, you should not wear any clothes that would be considered "flashy."

If your trial lasts for several days and you don't have enough "nice" clothes do not be concerned if you have to repeat an outfit.  Just make sure that your clothes are clean and pressed.

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Am I permitted to talk to the jury during my trial?

No.  You should avoid talking with the jury at any other time, even if you meet a member of the jury in the hallway or restroom.  No one can speak directly with the jury except the judge;s court officer.

Of course, the jury will hear you testify.  But you should avoid any other contact with the jury whatsoever.  The jury will be told by the judge that they cannot talk with any lawyer or witness in the case, and therefore the jury will not hold it against you if you follow the judge's instructions.

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I have a trial that starts in two weeks.  Will I be able to eat and drink in the courtroom?

No.  You will be able to have water when you testify on the witness stand, but otherwise eating and drinking are not permitted in the courtroom when court is in session.  There is usually a morning, lunch and afternoon break, so it is highly unlikely that you will go more than 2 hours without the opportunity to eat, get a drink, or use the restroom.

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Do truck and bus drivers have more responsibilities than drivers of cars?

Yes.  Truck and bus drivers are required to live up to the same standards and laws as every other driver on the road., but there are special safety laws that also cover most commercial drivers.

First, to prevent drivers from driving so long that they become dangerously tired, the law sets maximum hours they are allowed to work before taking a break. Truck drivers cannot drive more than eleven hours in one shift without stopping to take a break. Also, no matter how much time they spend behind the wheel, a truck driver has to stop and take a break within fourteen hours of the time the driver first clocks in to work for a shift. A break has to be ten hours in a row completely off duty. It does not matter if a truck driver works for two or three different companies; to comply with the law, the truck river must take a ten hour break from any and all jobs.

Bus drivers cannot drive more than ten hours in one shift before taking a break. However, bus drivers are only required to be off duty for eight hours between shifts (instead of the ten hours for truck drivers), and can stay on duty for up to fifteen hours from the time they clock in for a shift.

There are also limits on the amount of time a commercial vehicle driver can be on duty in a week, depending on what type of company the driver works for.

In order for police to check whether a driver is complying with the law, truck drivers and bus drivers are required to keep log books detailing, for every fifteen minutes, whether the driver is driving, at work but not behind the wheel, completely off duty, or sleeping in a bed in the back of the vehicle's cab.

Truck drivers and bus drivers are required to check their vehicles and cargo before and after driving to make sure there are no safety issues, and to keep records of each time they checked and the vehicle's mileage at the time.

Both truck drivers and bus drivers are legally required to pull over and stop driving if the weather or road conditions become too dangerous.

If a truck or bus driver is involved in an accident and either the driver gets a ticket or someone dies as a result of the accident, the driver is required to promptly take a drug and alcohol test.

These are just a few of the  numerous rules that apply to those that drive commercial vehicles in interstate commerce. It is important to hire a lawyer that has substantial experience in this field to assist you in these cases.

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I was in a car wreck six months ago.  The wreck was not my fault.  I had a back injury and now the doctor says I need surgery.  The surgery will cost $40,000.   I don't really want surgery, but the pain is pretty bad and the doctor says it will get worse.  Will I get more money for my personal injury case against the other driver if I have the surgery?

Well, I really do not think that should be a factor in whether or not you have surgery.  You should have surgery based on medical advice.  If you do not agree with your doctor's opinion, seek the opinion of another doctor.  But, make a decision about surgery based on whether or not you need surgery, not whether or not it will impact your case.

If you have surgery and the surgery is determined to have become necessary because of injuries in the wreck, the jury can and should include the cost of that surgery in the wreck.  It can and should also include pain and suffering caused by the surgery and the wages you lost from work during the surgery and recovery process.

If you don't have surgery the jury can still award you the medical expenses for the surgery that the doctor says will likely occur in the future.  Likewise, the jury can award damages for the pain, suffering and lost wages that will result  when that surgery occurs.  Practically speaking, however, is that a jury may give that less weight because they might assume that the surgery will never occur.

If you don't have the surgery you can recover damages for the pain and suffering, etc. you experience because of the  back problem.  However, the jury will be told that you have a duty to mitigate your damages, and if they believe you should have surgery and that will eliminate or substantially reduce your problems, they may not award you damages for future pain and suffering, etc. from your back injury.

As you can see, this is a complicated problem.  My bottom line is that your health and well-being comes before a lawsuit, and you should seek the medical attention and advice you need to solve your medical issues.   

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I have a personal injury case going to trial.  My lawyer says that my medical doctor cannot be forced to come to a trial and that we have to introduce her testimony via a deposition.  I think she will make a good witness and I want her there.  Can't we just issue a subpoena and force her to come to trial?

Under Tennessee law, you can issue a subpoena for a doctor but she has to invoke a special law that gives doctors an exemption from subpoena to court.   The judge has the power to say that the law giving the exemption should not apply in your case, but that is very unlikely based on the facts that you have stated.

One way to enhance the doctor's deposition is to take it via video.   The video is then shown to the jury and they will have an easier way to judge the doctor's credibility.

Finally, you can always just ask the doctor to voluntarily appear at your trial.   AS I stated above, she has the right not to go (unless the judge specifically orders her presence) but there is no legal reason why she cannot simply agree to testify in person at your trial

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How many cases does the Tennessee Supreme Court hear per year?

Here is the data for the fiscal year ending June 20, 2009, the last year available as of the date of this writing.

First, the Tennessee Supreme Court has to decide only certain types of cases.  It was  asked to hear about 825 cases during the fiscal year.  It decided to hear about 56 cases.   Trying to decide what cases should be reviewed takes a lot of work.  Each judge must review the written papers filed in support of the request for hearing (and the papers of the opponent which argue that the case should not be heard) to decide whether the case should advance to the Court.  At least 2 of the 5 judges must agree that the case should be heard.

Then, more papers are filed, oral argument on the cases selected is heard, and the case is decided.  Each case results in a written opinion.  Some of those opinions are 10 papers long and some are many more.  The court issued about 58 opinions in that fiscal year.  In some cases more than one opinion was issued.  Concurring opinions are issued when one or more judges agree with the result of the majority opinion but have a different take on one or more issues in the case.  Dissenting opinions are issued when a judge disagrees with the result on one or more issues in the case.

In addition, the Court participated in 121 worker's compensation case appeals during that 2008-09 fiscal year and 3 cases in which the death penalty was imposed.

The Court also was asked to consider, and agreed to consider, 4 questions of Tennessee law certified to them by federal judges.

Casework represents about 50% of the work of the Tennessee Supreme Court.  The judges also have extensive administrative duties.

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Will my lawyer charge me if I send him an email?

It depends.   What does your fee agreement with the lawyer provide?  If your lawyer is charging you by the hour, he will probably charge you for reading a substantive email.  If he is charging you a flat fee for a given project, he will probably not charge you extra for reading an email related to that project.  

If you have hired a lawyer on a contingent fee, he will not charge you for reading an email because his fee is based on the results he obtains for you, not on the time invested in your case.

We frequently correspond with clients by email and find that it increases our ability to provide prompt service.  

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I was hurt in a car accident.  I received a broken arm and a back injury.  The arm is now fine but my back still hurts.  My friend has recommended that I go to her chiropractor for treatment.  Should I?

Tough question.  Have you had any treatment by an orthopedic surgeon?  Have you ever seen a chiropractor before?  Indeed, have you discussed this with your family doctor?

I believe in chiropractic treatment but many insurance companies and juries discount it severely in Middle Tennessee.  To the extent that you want to make a claim and have the other driver's insurance company pay for your treatment you may wish to pursue conventional medicine first and see if that helps you.

Note that I am not suggesting that you seek medical treatment you don't believe in.  If you don't have confidence in treatment of back injuries through conventional medicine then don't go to that type of doctor.  But, if you go to a chiropractor first, be prepared to have to fight to get those bills covered by the other driver's insurance company.

To you chiropractors out there:  I am not maligning your profession.  I am just stating my view of the insurance industry's take your efforts to treat accident victims.  I think it is unfair, but I still believe that insurance companies in this area discount claims where the only treatment has been chiropractic.

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My hip replacement, a DePuy ASR, has been recalled?   I had my surgery in Nashville 3 years ago  and it has given me a lot of trouble.  What is my deadline for taking legal action?

You have what is known as a product liability claim, and under Tennessee law you have one year from the date you discover or reasonably should discover that you have a problem related to a defective hip.  Exactly when your rights expire depends on when you knew or should have known of the condition, but certainly it is no later than one year after you received the recall letter.

Failure to take appropriate legal action within the period required by law will result in a loss of your rights.

Our firm has filed several of these cases and is investigating several more.  We will be happy to discuss this matter with you.  There is no charge for an initial consultation.

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I received a back injury at work.  I told my employer about it, told him I needed to see a doctor and he fired me on the spot.   What are my rights?

You have a right to receive medical treatment for you back injury.  To the extent that miss work you have a right to receive "temporary total disability" payments until you are released by your doctor to go back to work.  You also have a right to another payment for "permanent partial disability" if you have a long-term problem as a result of your injury.  The fact that your employer fired you will impact the amount of a permanent partial disability payment you are eligible to receive if you have a long-term injury.

You will need the help of an experienced worker's compensation lawyer to help you with this problem.  Feel free to contact our office at 615.742.4880.  We will be happy to discuss this matter with you and help you if we can.   There is no charge for an initial consultation, and if we are able to help you we will accept your case on a contingent fee.

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I had a case in court and a witness lied about me.  What can I do about it?  Can I sue him?

Practically speaking, there is little you can do.  The chances that a district attorney will prosecute the witness for perjury are almost zero.   You cannot sue someone for statements - even untrue statements - made while testifying in court, even if the statements would have constituted slander if they were said out of court.   Witnesses who testify in court are protected from slander lawsuits by what is known as the "litigation privilege."

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I was in a bar minding my own business when some idiot wanted to start a fight.  I ignored him for a while but then went to the bar and told the bartender that they needed to throw the drunken idiot out before someone got hurt.  When I went to the bathroom about an hour later the same guy and his friend jumped me and beat me up.  The idiots who hit me are going to jail but can I sue the bar where this happened?   My medical bills are more than $50,000 and I missed three months of work.

You may well have a claim against the bar.  You have to prove that the bar had notice of the dangerous propensities of the customer who hit you and failed to take reasonable steps to protect you and the other patrons.

An experienced lawyer will need to investigate this matter before he or she can tell you whether you have a good case. 

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 How much liability insurance coverage should I have on my vehicle?

Answer: The amount of coverage you should have should depend on your assets and on your ability to pay. You must have at least $25,000 per person, $50,000 per accident.   Most people who have a household income over $50,000 per year should have $100,000 per person, $300,000 per accident. If your household income exceeds $100,000 per year, you should have even more insurance, such as $250,000 per person, $500,000 per accident or even more. Ask your agent to quote you the rate on several different liability insurance policy limits – you will be surprised to see how inexpensive the “extra” insurance coverage is.

People who have significant assets should have high liability insurance limits and should also have an “umbrella” or “excess” insurance policy to give them even more protection from if they make a mistake and harm another person. Many wealthy individuals (people with a net worth of over $300,000 or an income of over $150,000 per year) have several million dollars worth of liability insurance.

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My wife was hurt in a car wreck in Tennessee +on December 15, 2009 and died in the hospital on January 21, 2010.  What is my deadline for filing a lawsuit against the driver who caused the wreck?

Unless a lawyer familiar with all of the facts advises you to the contrary,  you should assume that you must file suit against the responsible parties before the one-year anniversary of the wreck.  

In some states the date of death triggers the start of the time period to take legal action.  That is usually not so in Tennessee.   Thus, to be safe work under the assumption that the one-year period starts to run from the date of the original injury that later resulted in death.

Of course, you should not wait that long to contact a lawyer.  Valuable evidence can be lost as time passes, and delay increases the possibility that all at-fault parties will not be timely identified and located.

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I am in a lawsuit in Tennessee.  The other side has served a set of request for production of documents.  There are 60 different requests.  Do I have to turn over all of this stuff?  Is there no limit to the number of requests for production?

Your lawyer will be able to tell you what you have to turn over and what you do not, but generally speaking there is no limit to the number of requests for production of documents.  Many local rules of court limit the number of interrogatories that can be served, and it is possible that local rules may limit the number of requests for production, but I do not ever remember seeing a limit on requests.

Absent a numerical limit, the only limitation on requests for production of documents is that they must seek relevant evidence or information reasonably calculated to lead to the discovery of admissible evidence and cannot seek information deemed "priviliged" under the law.  Once again, your lawyer will review each request with that standard in mind, and will object when appropriate.

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Does Tennessee have a deadline for filing motions in limine?

"Motions in limine" are papers filed with the court asking the court to reach a pre-trial ruling on certain matters, usually evidence issues.  For example, if I am representing a person  who was convicted of a crime 15 years ago and now has a trial in a car wreck case I will probably file a motion in limine asking the court not to let our opponent mention the prior criminal conviction.  This motion in limine gives the judge the opportunity to rule on the issue before the jury has any chance of hearing about it. 

The judge does not have to reach a decision on any motion in limine before trial.

In Tennessee, there might be a deadline on filing motions in limine imposed by local rule or by court order.  

Some local rules of court require that motions in limine be filed a certain number of days before trial.   Some scheduling orders or pre-trial orders imposed deadlines for filing motions in limine.

If you are represented by a lawyer he or she will file motions in limine and will worry about the deadlines - that is one of the things that  they get paid to do.

If you are a non-lawyer attempting to represent yourself at trial you should review the scheduling order, the pre-trial order and the local rules of court to see if there is a deadline for filing or responding to motions.

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I am in a car wreck lawsuit.  Depositions are happening next week.  How long do depositions last?

It depends on many factors.  There is no time limit on depositions in state court in Tennessee.  

The length of a deposition depends on the complexity of the case, the complexity of the injuries, the medical history of the plaintiff, the personality of the examining lawyer and many other factors. 

For example, in a car wreck case involving two cars, broken bones, a plaintiff with a relatively clean medical and work history and a reasonable insurance company lawyer the deposition of the plaintiff will last 3 or 4 hours.

If the medical history of the plaintiff is complicated another hour or two can be readily added to the deposition.

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I was hurt in a Tennessee car wreck.   I really don't want to go to court but the one-year filing deadline for personal injury claims is coming up and I need to file my lawsuit.  However, I don't want to go through the discovery process.  How often do cases settle without any discovery?

It is impossible for me to know the answer to that question.  Many cases resolve before a lawsuit is filed.  Many others are also resolved after a lawsuit is filed but before trial.  Unless active negotiations are underway in your case at the time you file suit and you are filing suit solely for the purposes of filing before the deadline but with a goal of getting the case resolved (and the insurance company has the main mindset) it is reasonable to assume that discovery will happen.   

Remember, you can settle your case (assuming the insurance company also wants to settle) and avoid litigation, including discovery.  If the insurance company wants to settle and you want it to settle, it will settle - just not at the dollar value it should settle.   By that I mean that if your case has any merit whatsoever you can almost always settle it for less than the true value of the case.

Learn more about discovery in personal injury and wrongful death litigation here.

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I was in an intersection wreck.  I say it was the other guy's fault.  He says it was my fault.  Who decides who was at fault?

If a lawsuit is filed a jury usually decides who is at fault (unless a jury is not requested by either party to the case, in which event a judge decides).  The jury will listen to your side of the story, the other driver's side of the story, the testimony of any witness, and review any physical evidence at the scene.   Sometimes expert witnesses are hired to explain what happened.

At the end of the day the jury considers all of the evidence, hears the law explained by the judge and uses common sense to decide who probably caused the wreck.  Under our system of justice, the person who files a lawsuit only needs to prove that more likely than not the other driver caused the wreck.  If the person who files the case is unable to prove that the other driver more likely than not caused the wreck the case will be lost.

An experienced personal injury lawyer knows how to gather the evidence, help you present it to a jury, and how to try to persuade the jury to find in your favor. A lawyer uses many of the same skills before a trial to try to persuade the insurance adjuster for the other driver that a jury will find the other driver at fault and therefore the insurance adjuster should settle a case in your favor.

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How much do expert witnesses charge?

It depends on the type of expert.  Most experts charge by the hour.  I have paid as little as $50 per hour to hire a mechanic to serve as an expert witness.  Some neurosurgeons charge $2000 per hour for a video deposition to testify about their care for a patient.  I have never heard about anyone charging more than $2000 per hour but I guess it is possible.

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I have a medical malpractice case.  The doctor's insurance company has refused to settle the case.  What are the odds that I will prevail at trial?

Health care providers generally win medical malpractice cases that are tried to a jury.  That does not mean that your case is likely to be lost - each case depends on its facts and,many other factors.

That being said, for the year ended June 30, 2009 there were 26 medical malpractice cases tried in Tennessee.  the data is not available, but based on past experience only 5 or 6 of those cases were won by the patient.  Stated differently, the win-rate for patients is less than 25% for cases that go to trial.

Tennessee is not an oddity in this regard.  According to Shannon Ragland, editor of the  the 2010 Kentucky Trial Court Review,  there were 47 medical trials in Kentucky in 2010. Only 13 of those cases resulted in a verdict for the patient or, in other words, a 27.6% win percentage for patients. The 13-year win-rate percentage (for 754 medical trials) in Kentucky is 23.2%.

Once again, the fact that more cases are lost than won does not mean anything about the likelihood of winning your case.  In fact, the only thing the loss rate tells us is that when medical malpractice insurance companies talk about all of these crazy jury verdicts in malpractice cases they must be talking about the cases they won.

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I was injured by the negligence of a state of Tennessee employee.  Can I sue the employee or the State?

The State will be responsible for the employee's negligence under two conditions.  First, the employee must have been acting in the course and scope of his or her employment at the time of the negligent act or omission.  Second, the State must have given permission to have been sued in the particular type of circumstance where the negligence has occurred.

That last condition is a little confusing.  The State cannot be sued without permission, but it has given permission in advance to be sued for a number of types of cases.  For instance, if a state employee runs a red light and causes a traffic wreck while on the business of the State the State has given permission to be sued.  There are a laundry-list of other circumstances in which the State has given permission to be sued.

If the two conditions are satisfied, you cannot sue the employee but can only bring your claim against the State.  The employee is immune from personal liability.

Lawsuits against the State are not filed in court.  Instead, they go through a claims process and the actual trial is conducted before a claims commissioner.  

The claim must be filed within one year of the date of the negligent act or omission that causes an injury.

You should contact an experienced personal injury lawyer to help you navigate through this process.

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I am thinking about filing a personal injury case.  What are my responsibilities to my lawyer? 

The lawyer / client relationship is a special one and, just like a lawyer has certain obligations to the client, a client must do certain things to assist the lawyer in the representation. We expect the following of our clients:

• You have an obligation to tell your lawyer the truth.
• You have an obligation to tell your lawyer the truth even if you think it will hurt your case or the truth embarrasses you.
• You have an obligation to truthfully testify at trial and in depositions.
• You have an obligation to truthfully answer interrogatories.
• You have an obligation to produce documents and other items  in your possession that your lawyer asks you to produce.
• You have an obligation to timely respond to your lawyer’s requests for information.
• You have an obligation to let your lawyer know of changes in your medical condition.
• You have an obligation to let your lawyer know if you move or you change your phone number.
• You have an obligation to tell your lawyer if you are injured in another incident.
• You have an obligation to tell your lawyer if you are arrested or get a traffic ticket.
• You have an obligation to tell your lawyer if you are contemplating filing for bankruptcy.
• You have an obligation to listen to and carefully consider your lawyer’s advice. You are not required to take the advice, but you should listen carefully to the advice and the potential impact to your case if you do not take the advice.

Filing a lawsuit is a serious endeavor and you should not take it lightly.  While a lawyer will do the vast, vast majority of the work on your case,  there are certain things only you can do and other things that the lawyer (and the legal system) have a right to expect of you.

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I was in a car wreck and was hurt bad.  The other driver was driving a new car.   I have been talking with the insurance company for the other driver.  I asked how much insurance was on the car and the insurance adjuster would not tell me.   I guess the other driver has lots of insurance because she was driving a new car, right?

Maybe.   There is no way to know for sure how much insurance someone has just by looking at the type of car they are driving.  It is reasonable to assume that a person who has a new car has enough money to purchase a responsible amount of liability insurance, but some people spend all of their money on their car and buy the minimum insurance they are required to have in Tennessee - $25,000 per person, $50,000 per accident.

Because Tennessee has no formal way of insisting that insurance companies reveal how much insurance coverage they have until after a judgment is obtained, I often look at the type of car, the at-fault driver's home, the at-fault driver's job and other factors to make an educated  guess about how much insurance is available.  Sometimes my guess is  right, sometimes my guess is wrong.  At the end of the day, however, if my client has a case that is worth more than the offer the insurance company has given and has represented that no more insurance is available, I insist (with my client's permission) that the insurance company prove that the at-fault driver has no more insurance applicable to the claim.  The is accomplished by requiring a copy of the declarations page for the insurance policy and an affidavit from the insured stating that no additional insurance is available.

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Some states place a cap on damages in personal injury and wrongful death cases.  Does Tennessee?

No, with a couple of exceptions.  At the present time, Tennessee does not cap damages in any type of personal injury or wrongful death cases except cases filed against state and local governmental entites.  There are no caps against people or non-governmental entites.

The amount of damages in any case is determined by a judge or, if a jury is requested, a jury.  If a jury is requested, the judge reviews the jury's decision after the trial and can lower or increase the amount of damages.  Damages are rarely increased.

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I was beat-up by a guy and incurred $10,000 in medical bills and missed two weeks from work.  I want to sue him but I cannot find a lawyer to help me.  They all want to know if the guy that beat me up has any money and when I tell them I don't think so the lawyers lose interest.  How can I get money out of this guy?

You are probably trying to hire a lawyer on a contingent fee.   If a contingent-fee lawyer thinks a case is weak or that any damages won are not going to be collected he or she will not take the case because, like everyone else, lawyers like to get paid for their work.

You have two options.  You can hire a lawyer by the hour to sue the guy that hurt you.  Or, you can find a new lawyer (one recently out of school) who would be more likely to take a case where he or she is not likely to get paid.  You may have to front the filing fee and other out-of-pocket expenses.

How do you collect what you win?  You can get a court order taking a percentage of the person's paycheck.  You can serve papers on the guy's bank and take whatever money is in his checking account and savings account.  You can put a lien against his house.  There are other things you can do, but each of these things require more time and work by your lawyer.

In summary, it can be hard to collect money from someone who hurts you and either does not have liability insurance or does something that is not covered by insurance.  Most lawyers will give you a free consulatation to see if they can help you but to the extent that you need to hire someone on a contingent fee basis there needs to be some reasonable expectation that they will be paid.

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