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

1. What duties do drivers owe to other people on the road?

Answer: Drivers owe other persons upon the roadway a duty to use reasonable and due care in the operation of their vehicles so as to avoid injury to other persons using the roadway. This includes keeping a proper lookout, maintain proper control of the vehicle, turning appropriately, stopping appropriately, and maintaining an appropriate speed. A driver also has a duty to follow state laws and local ordinances in operation of their vehicle. One example of a state law that drivers must follow is that it is illegal to operate a vehicle under the influence of alcohol or other drugs. 

Common carriers (those that carry passengers for hire, such as buses and taxi cabs) are held to a higher standard of care. They must exercise the highest degree of care for their passengers’ safety.

2. What types of insurance may apply in a car accident case?

Answer: Several different types of insurance coverage apply in a car accident case. First, the at-fault driver’s automobile insurance may apply to cover the damages you sustain in a wreck. In Tennessee, all drivers are required to carry a minimum amount of automobile insurance, specifically $25,000 per person with a cap of $50,000 for each wreck. If two people are injured in a wreck, and the at-fault driver has minimum insurance policy limits, generally speaking the most the insurance company could ever have to pay is $25,000 to each person. If three people are injured in a wreck and the person at fault has minimum limits, the insurance company generally will not have to pay more than $50,000 to all three people combined, and each person cannot recover any more than $25,000. Of course, many drivers break the law and do not carry the required minimum car insurance limits. 

In the driver that causes the accident does not have insurance, your own automobile insurance coverage may also apply in a car accident case. This type of insurance coverage is called uninsured motorist coverage. Subject to certain limitations, you may recover under that portion of your own policy if the other driver is proven to be uninsured.

Similarly, if the other driver has insufficient coverage to pay for your damages and your insurance coverage exceeds the amount of the at-fault driver’s insurance coverage, then you may recover the difference between the at-fault driver’s coverage and your own coverage under your underinsured motorist coverage with your automobile insurance carrier. For example, if the at-fault driver has minimum limits of $25,000 per person and you have limits of $100,000 per person, you may recover an additional $75,000 under your uninsured motorist coverage if your damages are $100,000 or more.  The driver (or the driver’s employer, if they are on the job at the time of the wreck) may be required to personally pay in addition to the available insurance coverage. However, recovering more than the available insurance limits is often unrealistic.

You may also have coverage under your policy for medical care – often called medical payments coverage. This coverage is usually limited, with most people having $5,000 of coverage. The amount of your medical payments coverage depends on your contract with your automobile insurance company. You will most likely be required by your automobile insurance contract to pay your insurer back for any payments made on your behalf if you recover damages from the at-fault driver. This is called subrogation.

You can see that it is very likely that your own insurance company may not be on your side in a wreck in which at the at-fault driver did not have insurance coverage or did not have enough insurance coverage to pay you for your damages and losses. While you have a duty to cooperate with your own insurance company, it makes sense to talk to a lawyer before you give a statement to any insurance company, even your own. At Law Offices of John Day P.C., we will be happy to advise you on how to give an accurate statement to the insurance company representative.

3. What is the deadline to file a claim for a car wreck?

Answer: Subject to very few exceptions, you have one (1) year from the date of the wreck in which to file a lawsuit. Do not assume that any exception applies to you unless a lawyer familiar with all of the facts advises you that the exception applies.

4. Should I get a lawyer? When?

Answer: You should get a lawyer involved immediately after you are involved in an accident. You need a lawyer to protect your rights after a car wreck, and a lawyer will take the stress of dealing with the insurance companies off of you while you are recuperating from your injuries. You should definitely talk to a lawyer before giving a statement of the circumstances of the accident to any insurance company, even your own. 

5. Do I need a lawyer if the insurance company for the other driver is being nice and reasonable?

Answer: In some instances, the insurance company for the other driver will act reasonably in resolving your claim. However, beware of wolves in sheep’s clothing. Just because the at-fault driver’s insurance company is being nice does not mean they are being reasonable. Until you consult with a lawyer of your choice, it is difficult to understand your many rights in a car wreck case and to assess whether the insurance company is giving you a fair deal.

6. Should I sign a medical records release for the other driver’s insurance company?

Answer: In some instances, you should sign a medical records release for the insurance company. However, that decision is best made after you consult with the lawyer of your choice who can advise you about the ramifications of signing a medical release.

7. Should I give a statement to the other driver’s insurance company?

Answer: In some instances, you should give a statement to the insurance company. However, that decision is best made after you consult with the lawyer of your choice who can advise you about the ramifications of giving a statement to the insurance company. You should not give a statement to an insurance company if you are taking any medication that affects your mental status. 

8. Who will pay for my medical bills?

Answer: The answer to this question depends on the different insurance coverages available for the wreck and who is at fault for the wreck. Your medical insurance carrier should pay your medical bills related to the wreck. If you make a recovery for the wreck from the at-fault driver, you will most likely be required by your health insurance contract and/or by law to pay your insurer back for any payments made on your behalf. This is called subrogation. 

Your own automobile insurance coverage may also pay your medical bills related to the wreck under your medical payments coverage. This coverage is usually limited, with most people having $5,000 of coverage. The amount of your medical payments coverage depends on your contract with your automobile insurance company. Like your health insurer, you will most likely be required by your automobile insurance contract to pay your insurer back for any payments made on your behalf if you recover damages from the at-fault driver – also called subrogation.

9. What if the other driver does not have insurance?

Answer: If the other driver does not have insurance, your own automobile insurance coverage may apply to cover your damages. This coverage is called uninsured motorist coverage. You may recover under that portion of your own policy if the other driver is proven to be uninsured.

Similarly, if the other driver has insufficient coverage but your insurance coverage exceeds the amount of the at-fault driver’s insurance coverage, then you may recover the difference between the at-fault driver’s coverage and your own coverage under your uninsured motorist coverage with your automobile insurance carrier. For example, if the at-fault driver has minimum limits of $25,000 per person and you have limits of $100,000 per person, you may recover an additional $75,000 under your uninsured motorist coverage if you have $100,000 in damages. If the other driver (or the driver’s employer, if they were on the job at the time of the wreck) has significant personal finances, you may be able to recover from them directly.

10. Is there PIP coverage in Tennessee?

Answer: No. Tennessee does not have a no-fault system and therefore does not have PIP (Personal Injury Protection) coverage as a part of automobile or truck liability insurance policies issued in Tennessee. However, if you live in a state that has no-fault and PIP coverage, your insurance policy may give you benefits not available to Tennessee residents. If you are from out-of-state but were injured in a car or truck wreck in Tennessee, the attorneys at Law Offices of John Day P.C. will be happy to review your insurance policy and determine what benefits it provides under the circumstances.

11. Does Tennessee provide for “stacking” of uninsured motorist policies?

Answer: No. If a person owns three vehicles and each vehicle as $25,000 of uninsured motorist protection some states allow the car owner to “stack” each of the insurance policies together to provide for $75,000 in uninsured motorist benefits. That is not true in Tennessee. 

However, if you are an out-of-state resident who is hurt by the carelessness of a driver in Tennessee, your uninsured motorist policy may permit insurance coverage to be “stacked” to give you higher insurance policy limits. The attorneys at Day & Blair will be happy to review your insurance policy and determine what benefits it provides under the circumstances.

12. Does the person who caused the wreck have to pay to fix my car?

Answer: The person who causes the wreck must pay to have the car repaired to about the same condition as it was before the wreck. If the cost of repairs is about the same as or greater than the fair market value of the car the car will be considered “totaled” and you will be entitled to receive money equal to the fair market value of your car.

13. Does the person who caused the wreck have to pay for a rental car while my car is being fixed?

Answer: Legally, no but practically that frequently occurs. Technically, the person who caused the wreck must pay for “loss of use” of your car. That loss is often measured by the cost of renting a replacement vehicle. However, do not go out to a big-name car rental company and rent a replacement car and except the other driver’s insurance company to pay for it. Those companies often have contracts with lesser-known rental companies that charge less for rental cars. So, make sure you have a clear understanding with the other driver’s insurance company about what car you can rent and who will pay for it before you rent a replacement vehicle.   Better yet, let your lawyer help you with this issue. 

Your may also have replacement car coverage on your insurance policy.

14. 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.

15. How much uninsured motorist / underinsured motorist insurance coverage should I have?

Answer: You cannot buy more uninsured motorist / underinsured motorist (UM/UIM) insurance than you have in liability insurance coverage. Thus, if you have a $100,000 / $300,000 liability policy, you cannot buy more than $100,000 /$300,000 in UM/UIM.

The need for UM/UIM is another reason to buy higher liability insurance limits. There are hundreds of thousands of uninsured drivers in Tennessee, and hundreds of thousands of drivers who have minimum liability insurance policy limits. Many of these drivers are drivers who cannot afford more insurance because they have a past history of driving under the influence of alcohol or another drug, UM/UIM is very inexpensive protection from harm caused by these drivers.

Ask your insurance agent to give you quotes for several different levels of liability insurance coverage, including equal amounts of UM/UIM. You will be surprised at how little the “extra” insurance costs. Many times, you will be able to buy twice as much insurance coverage for a few dollars per week.

16. I was injured in a car wreck. What should I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010 Law Offices of John Day P.C. 

1. What is a wrongful death case?

Answer: A wrongful death case is a lawsuit in which it is asserted that one person intentionally, recklessly or negligently caused the death of another person.

Wrongful death cases can arise because of automobile wrecks, truck wrecks, bus wrecks, medical errors, pharmacist errors, fall injuries, construction accidents, and a large number of other situations.

2. Who has the right to file a wrongful death lawsuit?

Answer: Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:

• A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
• A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
• If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
• If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
• If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
• There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.

3. What deadlines apply to filing a wrongful death lawsuit?

Answer: You should assume that a lawsuit should be filed against the responsible parties within one year of the date of the injury that later resulted in death. If death was instantaneous, you should file suit within one year of the death. If there was a delay of one year or more between the date of the injury and the date of the death, you should file a personal injury lawsuit before the one-year anniversary of the personal injury and amend the lawsuit after the death to include a wrongful death claim.

There are several circumstances under which more or less time may be available. We recommend that you contact us as quickly as reasonably possible after an injury to determine what legal rights you have, including a determination of when legal action must be taken. Do not assume that you still have time to bring a case, or that the time has run to bring a case, unless you have received advice from a competent lawyer who has been informed of all of the relevant facts.

4. What damages may be recovered in a successful wrongful death lawsuit?

Answer: These are the types of damages that can be recovered: (a) medical expenses; (b) funeral bills; (c) conscious pain and suffering from the date of the injury until the date of death; (d) loss of enjoyment of life between the date of injury and death; (e) loss of earning capacity between the date of injury and death; and (f) the pecuniary value of life.

In all cases, the pecuniary value of life includes the present value of the decedent’s lost future earning capacity less those living expenses necessary to maintain the decedent’s person so that they can work. In cases involving the death of a spouse, the surviving spouse can recover damages for the loss of consortium of the decedent. In cases involving the death of a parent, the children can recover damages for the loss of love, society, affection and guidance of the parent. In cases involving the death of a child, the parents can recover damages for the loss of love, society and affection of their child. Each of these types of damages are included in the definition of the “pecuniary value of life.”

5. Who receives the damages recovered in a successful wrongful death lawsuit in Tennessee?

Answer: Generally speaking, damages for the personal injury claim (the claim that arises from the period of time between the injury and the death) are distributed under the will of the decedent and, if there is no will, under the law of intestate succession.

Funeral expenses are re-paid to the person who paid the funeral bills.

Medical expense monies generally must re-paid to the person or insurance company (or government entity) that paid the medical bills.

Damages awarded for the wrongful death portion of the award are generally divided between the “beneficiaries” under the law of intestate succession. For example, in a lawsuit where the decedent leaves a wife and two children behind, each of the three are “beneficiaries” under the law and each receives one-third of the pecuniary loss.

If the decedent left a wife and three children, the wife would receive 1/3 of the recovery and each child would receive an equal share of the remaining two-thirds.

If the decedent left no spouse and four children, each child would receive an equal share. If the decedent left no spouse and no children, the decedent’s parents would each receive 50% of the money.

If the decedent left no parents, spouse or children, the decedent’s siblings would split the money equally.

There are several exceptions to these general rules. For example, a parent that refused to support a minor child may lose rights to collect money if the child becomes a wrongful death victim. Likewise, a person who murders another person cannot be a wrongful death beneficiary. An experienced lawyer can help you understand the rules of distribution of wrongful death proceeds.

6. What do I do if a family member has lost his or her life because of another person’s error?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010, Law Offices of John Day P.C.

 1. What is a personal injury?

Answer: A personal injury is an injury to a person caused intentionally or by the negligence of another.

2. What types of personal injury cases are there?

Answer: There are many types of personal injury cases, including cases involving injuries sustained in automobile accidents, injuries sustained as a result of a landowner (called premises liability), injuries sustained as a result of a faulty, defective, or dangerous product (call products liability), injuries sustained as a result of medical mistakes or errors (called medical malpractice or medical negligence), injuries sustained as a result of derogatory statements, either written and spoken (called defamation), injuries sustained as a result of injuries at work (called worker’s compensation), and injuries caused by fights or assaults (called assault and battery).

Anytime you are injured as a result of someone else’s negligence, you have suffered a personal injury and you could potentially hold the negligent person liable for your injury.

3. What damages are recoverable in personal injury cases?

Answer: In most personal injury cases, you can recover monetary damages for medical bills, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

4. What medical bills can I recover? 

Answer: People injured by the negligence of another can recover the reasonable medical bills necessarily incurred as a result of the incident.   To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

5. What is physical pain and suffering?

Answer: Pain and suffering is physical discomfort caused by an injury.

6. What is mental or emotional pain and suffering?

Answer: Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

7. What is disfigurement?

Answer: Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

8. What is loss of enjoyment of life?

Answer: Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

9. What is disability?

Answer: Disability is the loss of your ability to do the same physical things that you did before you were injured.

10. What is loss of earning capacity?

Answer: Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

11. I know that it can take some time for cases to get settled or go to trial. Can I recover interest on my lost income, etc.?

Answer: If a trial is necessary, you win at trial, and the defendant appeals you can recover interest while the appeal is underway.  You can also recover interest if the defendant delays in paying you what you are owed. This is called post-judgment interest. The interest rate under current law is 10% per year.

However, under current Tennessee law, you cannot recover pre-judgment interest (interest on the amount of your losses between the time you incurred them and the time of settlement or trial) in Tennessee personal injury and wrongful death cases.

12. I believe that I have a personal injury claim. What should I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010, The Law Offices of John Day, P.C.

This Legal Guide will explain the various steps that take place during the trial of a personal injury or wrongful death lawsuit in Tennessee.

1. Jury Selection

Most of the trials in personal injury and wrongful death cases in state court in Tennessee are jury trials. The jury panel consists of thirty to sixty residents of the county where the trial is taking place.

The attorneys for the participants in the case select the jurors that will actually hear the evidence. The jury selection process is often called voir dire. The potential jurors are asked questions to determine if they will be able to fairly evaluate the evidence and apply the law as given to them by the trial judge. The judge has the power to deny jury service to those who the judge believes will not fairly judge the evidence. The attorney for each litigant can excuse at least four but no more than eight potential jurors for any reason not grounded in the juror’s race, gender, national origin, or religion.

Most jury trials in Tennessee have twelve jurors. It is not uncommon for there to be one or more “alternate” jurors who will serve in the event a regular juror becomes sick or is otherwise unable to serve.

2. Preliminary Jury Instructions 

In recent years, the jury is often given a brief summary of the law at the beginning of the case. The jury is reminded that it should listen to all of the evidence before deciding the case, that no member of the jury may discuss the case with any other person during the trial, and that no juror should do independent research in the case.

3. Opening Statements

After jury selection, the lawyer for each litigant has the right to present a summary of what the lawyer believes the evidence will be at trial. The summary is called an “opening statement.” The length of the opening statement often depends on the complexity of the case. A judge may limit the length of a lawyer’s opening statement. The lawyer for the plaintiff (the person bringing the lawsuit) goes first. Then, the lawyer for each defendant (the person who has been sued) gives an opening statement.

4. Presentation of the Plaintiff’s Evidence

The plaintiff presents evidence first. The number of witnesses called usually depends on the complexity of the case.

Each witness called by the plaintiff is asked questions on “direct examination.” Then, the opposing lawyer or lawyers get to “cross examine” the witness.

Witnesses may also be used to bring exhibits before the jury. In personal injury and wrongful death trials, exhibits often include diagrams, photographs, x-rays, medical records, and medical bills. These exhibits are sometimes called “demonstrative aids.”

The goal of the plaintiff is to put on enough evidence to legally establish that they should win the case if the jury believes plaintiff’s evidence. The goal of the defendant is to point out shortcomings or holes in the plaintiff’s case.

5. Defendant’s Motion for a Directed Verdict

After the plaintiff presents all of his or her evidence it is not unusual for the defendant to ask for a “directed verdict.” When a defendant asks for a directed verdict the defendant is saying that (a) the plaintiff did not prove each of the things that the law says must be proved to win a case or (b) no reasonable jury could find in the plaintiff’s favor given the evidence.

The judge decides whether the defendant’s request for a directed verdict should be granted. The judge first determines whether the plaintiff introduced some evidence of each of the things the law says must be proved to win a case. If so, the judge determines whether any reasonable jury could find in favor of the plaintiff. In making this decision, the judge looks at all of the evidence introduced in the case in a way most favorable to the plaintiff.

If the request for a directed verdict is granted, the case is over. If it is denied, the jury then hears the evidence of the defendant.

 6.  Presentation of the Defendant’s Evidence

The defendant introduces evidence through witnesses just like the plaintiff: questions are asked on direct examination. The plaintiff’s lawyer is permitted to cross-examine each witness called by the defendant.

The defendant may also introduce exhibits through the witnesses.

7.  Defendant’s Motion for a Directed Verdict

After the plaintiff and the defendant introduce all the evidence they have, the defendant typically asks again that the judge grant a directed verdict in defendant’s favor. Rarely, the plaintiff may ask for a directed verdict in plaintiff’s favor.

Usually, but not always, motions for a directed verdict are denied, and the jury makes the decision about who should win and who should lose.

8.  Closing Argument

Closing argument is the time when each lawyer reminds the jury of the evidence and explains why his or her client should win the case. The lawyer will argue that the evidence and the law support a ruling in favor of his or her client.

The lawyer for the plaintiff goes first. The lawyer for the defendant goes next. Then, the lawyer for the plaintiff has an opportunity to respond to what the lawyer for the defendant said. This is called a “rebuttal.”

9.  Jury Instructions

After closing argument, the judge then tells the jury the law applicable to the facts they have heard. The jury has an obligation to follow the law (whether they agree with it or not), but it is the jury that determines the facts (what happened) and applies those facts to the law.

In civil cases, juries are instructed that to find a fact as true they must only find that it is more likely true than not true. For example, in a case where the plaintiff alleges that the defendant ran a red light and caused a car accident, the plaintiff has a responsibility to prove that more likely than not the defendant ran a red light and caused the injuries. Plaintiff does not have to prove with 100% certainty that the defendant ran the red light.

At the option of the trial judge, the judge may given jury instructions before the lawyers make their closing arguments.

10.  Jury Deliberation

After receiving the jury instructions the jury is taken to the jury deliberation room to fulfill its duty as judges of the facts. Usually, the first task is to elect a foreperson to preside over the discussions. The jurors then debate what happened in the case and take one or more votes to determine how the case should be resolved.

The jurors are often given a jury verdict form to guide them in their deliberations. The jury verdict form will contain questions that the jury will have to answer. For example, the first question may be “Do you find that the defendant negligently caused the automobile wreck on August 14, 2009?” The next question may be “Do you find that the plaintiff was injured in the automobile wreck of August 14, 2009? Then there will be questions about the damages, if any, to which the plaintiff is entitled.

Jury verdict forms can be very simple or very complicated, depending on the complexity of the case.

11.  Announcement of the Jury Verdict

In Tennessee a jury’s verdict must be unanimous – all 12 jurors must agree. When a unanimous decision has been reached, the jury tells the court officer that they have reached a decision. The court officer then tells the judge that a decision has been reached and the jury is brought back into the courtroom to announce its verdict. The judge reviews the jury verdict form in the courtroom and then the verdict is announced by the jury foreperson. All jurors are then asked if they agree with the verdict that was announced by the jury foreperson. If all jurors are in agreement, the judge thanks the jurors for their service and their role in the case is over.

12.  Preparation of the Judgment

After the jury announces its decision, the winning side prepares a “judgment.” The judgment reports what the jury decided. The judgment is filed with the Court and, if it is accurate, is signed by the Judge.

The judgment will provide that post-judgment interest began to run on the amount of the jury’s verdict on the date the jury announced the verdict. The interest rate on judgments is ten (10%) per year in Tennessee.

13.  Post-Trial Motions

If either the plaintiff or defendant does not agree with the jury’s decision, they have thirty days from the date that the signed judgment is filed with the Clerk of Court to ask the judge to change the result. The judge has the power to do five things.

First, the judge can set aside the result of the jury entirely and enter a judgment for the other side. This is called a “judgment notwithstanding the verdict.” The judge will do this only if he or she believes that the no reasonable jury could reach the result it did. This is very rare. A judge’s decision to grant or deny a request for a judgment notwithstanding the verdict may be appealed to the Tennessee Court of Appeals.

Second, the judge can order a new trial if he or she is dissatisfied with the verdict. The judge does not have to give a reason why he or she is dissatisfied with the verdict. Ordinarily, a judge’s decision to grant a new trial because of dissatisfaction with the jury’s verdict cannot be appealed. If a new trial is ordered by the judge the litigants will then have another trial before a different judge and jury at a later date.

Third, the judge can approve the verdict and make the judgment a final judgment. If that occurs, the case is over unless there is an appeal to the Tennessee Court of Appeals.

Fourth, the judge can increase the amount of the verdict. This is called an “additur.” The judge will do this if the judge feels the amount awarded by the jury was unreasonably low. This rarely occurs. If a verdict amount is increased, the defendant can accept the increased amount and pay the judgment, accept the increased amount under protest and appeal the increase to the Tennessee Court of Appeals, or have a new trial before a different jury at a later time.

Fifth, the judge can decrease the amount of the verdict. This is called a “remittitur.” The judge will do this is the judge feels the amount awarded by the jury was unreasonably high. This too is rare. If a verdict is reduced, the plaintiff can accept the reduced amount, accept the reduced amount under protest and appeal the reduction, or have a new trial before a different jury at a different time.

14.  Appeals

If a plaintiff or a defendant has a complaint about the way the trial was conducted or the end result of the trial or the judge’s ruling on post-trial motions, he or she can appeal. In Tennessee, the first appeal is to the Tennessee Court of Appeals.

The Court of Appeals does not hear from witnesses. Rather, it looks at the transcript of the testimony given in the trial court, reviews the exhibits, and determines whether there were any errors than mandate a different result than reached in the trial court. The Court of Appeals can affirm the result reached in the trial court, order a new trial, and sometimes it can outright dismiss a case won by a plaintiff in the trial court.

A plaintiff or defendant that disagrees with the Court of Appeals decision about a case can ask the Tennessee Supreme Court to hear the case. The Tennessee Supreme Court does not hear every case it is asked to hear – it has the right to refuse to hear a case and does not have to give any reason for refusing to hear it. Usually, the Tennessee Supreme Court will not hear a case unless it presents an important issue of law.

Theoretically, the losing party can ask for the United States Supreme Court to hear the appeal. This is a complicated and expensive process. The United States Supreme Court will hear an appeal of a state court civil case only on extremely rare occasions. Most lawyers do not recommend that their clients incur the expense of asking for an appeal to the United States Supreme Court in state court civil cases absent very unusual circumstances.

15.  Payment of Judgments

If a judgment is not appealed, or it is upheld on appeal, the plaintiff must take steps to enforce the judgment.

In most personal injury and wrongful death cases the defendant has liability insurance to pay the amount of the judgment and any interest that has accrued on the judgment. Usually, all that it takes to collect a final judgment from a defendant that has sufficient liability insurance is to write a letter to the lawyer employed by the insurance company and insist that the judgment be paid.

If the defendant does not have liability insurance, or has inadequate insurance, other steps must be taken to collect the judgment. This may include seizing the defendant’s bank accounts, identifying property owned by the defendant and seizing control of it, etc. One threat of this action is that the defendant may file bankruptcy in federal court. If that happens, the plaintiff can take no further action to collect the judgment without permission of the Bankruptcy Court.

16. I believe I have a personal injury or wrongful death case. What do I do?

You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.  For a free consultation call John Day at 615.742.4880 or email John at jday@dayblair.com.

 1. What is a products liability claim?

Answer: A products liability lawsuit is a claim that a person was injured or died due to a problem with a product.  A "product" can be almost anything that can be manufactured, including cars and planes, medication, consumer goods like lighters and lawnmowers, and industrial machinery.

In a products liability lawsuit, the manufacturer of the product can be held liable for the problem with the product that caused an injury or death.  Manufacturers include designers and makers of products, as well as those who design or make parts of products (such as the maker of an axle to be used in an automobile).

Under some circumstances, others may also be held liable in addition to or instead of the manufacturer.  If the manufacturer is not available to be sued (for example, because the company has declared bankruptcy), the seller of the product may be liable for the harm it caused.  Someone who negligently maintained the product (such as a car repair shop) may also be accountable.

2. What must be proved to win a products liability lawsuit in Tennessee?

Answer: To win a products liability lawsuit, the person who files it must prove that the product was "unreasonably dangerous" or in a "defective condition" at the time it left the manufacturer's hands, and that is what caused the injury or death. 

To prove a product was "unreasonably dangerous," you must either prove that it was more dangerous than an ordinary consumer would expect, or prove that a reasonably prudent manufacturer would not put the product onto the market if they knew about the danger.  You do not need to prove that the manufacturer actually was aware of the danger.  Some products are so complex that an ordinary consumer would not be familiar with the way the product is expected to work.  For those complex products, you may be required to specifically prove that a manufacturer would not sell the product if it was aware of the danger.

To prove a product was in a "defective condition," you must establish that some condition of the product made it unsafe for normal or expected use.  A product can be unsafe for several reasons.  For one, the entire product line may be designed unsafely.  On the other hand, there may be a problem at the time the product was manufactured that keeps it from performing as it was designed.  (For example, a lawnmower may be designed safely, but because of a problem during manufacturing, a bolt comes loose during use and causes the blade to fly off.)  Finally, the product may be defective because of inadequate safety warnings about the dangers presented by the product.

To win the case, the product must have been in the same condition at the time of the injury as it was when it left the manufacturer's control.  This means that, if the product was made dangerous or defective some time after the manufacturer shipped it, the manufacturer may not be responsible for any harm the product causes. 

3. How much time does a person have to file a products liability lawsuit?

Answer: Under Tennessee law, in most cases a person has one year after the date of the injury or death to file a lawsuit.  There are a number of exceptions to this rule, some of them unique to products liability cases.

First, a lawsuit must be filed within six years after the injury occurred, even if the victim does not immediately know that he or she has suffered an injury.  For example, if a product exposes the victim to toxic chemicals without the victim knowing it, and the victim develops cancer seven years later, it may be too late to file a lawsuit even before the victim was aware of the possibility of a problem.

Second, a lawsuit must be filed within ten years after the product was first purchased for use or consumption (meaning the date the product was first sold to a consumer as opposed to a store).  For example, if a car explodes during normal use eleven years after it was first sold from a dealership to a consumer, the victim may not be able to pursue a lawsuit under Tennessee law.

Third, if the product is required by law to have an expiration date posted on it (like some foods), a lawsuit must be filed within one year after the expiration of the product's anticipated life.

Under current interpretation of the law, these three rules do not, however, apply to children who are injured by products.  Where a child is injured (but does not die), the child has until one year after the child's eighteenth birthday to file a products liability lawsuit.

Likewise, these three rules also do not apply to people who are injured by silicone gel breast implants or exposure to asbestos.  Claims for asbestos or silicone breast implant injuries are covered by different filing deadlines.

Finally, Tennessee law may not apply to a particular claim even if the injury or death occurred in Tennessee.  Only a lawyer familiar with the facts of the particular case can determine which state's law should determine the time limits applicable to that case.

As we hope the above paragraphs have demonstrated, the law of filing deadlines for lawsuits is very complicated.   You should never look at any of the general rules and assume any of them apply in your situation. Ask a competent lawyer for help in determining what deadline applies to your claim.

4. What damages can I recover if I win a products liability case?

Answer: In a personal injury cases, you can recover monetary damages for past and future medical bills incurred because of the injuries, past and future physical pain and suffering, past and future mental or emotional pain and suffering, loss of earning capacity, disability, lost capacity for the enjoyment of life, and disfigurement.

A significant part of many personal injury claims in the recovery of the reasonable medical bills necessarily incurred as a result of the incident.   To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

Physical pain and suffering is physical discomfort caused by an injury. In the event you suffer an injury that will cause pain in the months and years after a settlement or trial, you can recover damages for that as well.

Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities you once enjoyed.

Disability is the loss of your ability to do the same physical things that you did before you were injured.

Loss of earning capacity is the loss of your ability to work and earn money. It may be an amount equal to your lost wages as a result of the injuries you received in the incident. If you have suffered permanent injuries that affect your ability to work and earn money, it includes those monies you are likely to lose in the future because of your injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s.   Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

5. I was injured by a product. What do I do?

Answer: First, make sure that the product involved is not changed, further damaged, or lost.  Do not test the product or try to re-create what occurred.  The actual product must be preserved – if the product is lost or altered from the condition it was immediately after the incident your rights will be substantially affected.  If the product that harmed you is not yours, a lawyer can help you secure the product and prevent additional damage from being done to it.

© 2010, The Law Offices of John Day, P.C.

If you look around it seems like there are thousands of lawyers who say that they handle personal injury and wrongful death cases. In Tennessee and many other states, any lawyer can say that they do personal injury and wrongful death litigation, and it is left to the consumer to figure out what to look for in determining which lawyer to hire for your case.

This Guide will help you conduct the right research and ask the right questions so that you can hire the best lawyer for your case.

1. Is the lawyer a member of the American College of Trial Lawyers?

Answer: Look at the lawyer’s website and determine if he or she is a Fellow in the American College of Trial Lawyers. The American College of Trial Lawyers is a very prestigious organization that has less than 200 members in Tennessee. A lawyer who is a Fellow of the American College of Trial Lawyers has gone through a very rigorous, confidential selection process and is elected to the organization by other outstanding lawyers in the state. There are fine lawyers who are not members of this organization, but a lawyer who has achieved the status of Fellow has been recognized by his or her peers as among the finest trial lawyers in the state.

John A. Day was elected as a Fellow of the American College of Trial Lawyers in 2002 and serves as Vice-Chair of the College in Tennessee.    There are less than 15 other lawyers in Tennessee who typically represent consumers in personal injury and wrongful death cases who have been elected to fellowship in this organization and are still practicing law.

2. Is the lawyer board-certified as a Civil Trial Specialist?

Answer: Look at the lawyer’s website and determine if he or she has been certified as a civil trial specialist. Tennessee recognizes a specialty in civil trial litigation, and there less than 160 lawyers in the state who have achieved certification (less than 1 percent of all licensed lawyers). Certification requires substantial trial experience, successful completion of an exam, and satisfactory references. A certified lawyer must be re-certified every five years. There are fine lawyers who are not certified specialists, but a lawyer who is certified has demonstrated that he or she has the experience and background necessary to meet state requirements necessary to meet that standards imposed by the Tennessee Supreme Court.

John A. Day has been certified as a civil trial specialist in Tennessee since 1992. In fact, John is a Past President of the National Board of Trial Advocacy, a division of the National Board of Legal Specialty Certification, the group that certifies trial and other types of lawyers across the nation. 

3. Has the lawyer been recognized by “Best Lawyers?”

Answer: “Best Lawyers” is a national organization that recognizes outstanding lawyers in each state in a large number of legal specialties. Best Lawyers compiles lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. In the U.S., Best Lawyers publishes an annual referral guide, The Best Lawyers in America, which includes 39,766 attorneys in 80 practice areas, covering all 50 states and the District of Columbia. This publication is another way you can determine if the lawyer who you are thinking about hiring is respected by his or her peers.

John A. Day has been listed in Best Lawyers in America every year since 1993, when he was 36 years old. John has also been recognized on “best lawyer” lists selected by “Super Lawyers,” Business TN magazine, and the Nashville Business Journal.  

In addition, John was recognized as the Best Lawyers as “Personal Injury Lawyer of the Year” in Nashville in 2009 and the “Medical Malpractice Lawyer of the Year” in Nashville in 2010.

Once again, there are many fine lawyers who are not included on these lists. Nevertheless, it is fair to say that “best lawyer” lists are yet another way for a consumer to gauge the reputation of a lawyer in the legal community.

4. What is the lawyer’s Martindale-Hubbell rating?

Answer: The Martindale – Hubbell publication has been around for many decades and assigns ratings to law firms and lawyers based on votes cast by other lawyers in the community.

Law Offices of John Day P.C. is recognized by Martindale Hubbell as a Preeminent Law Firm. John A. Day earned an AV rating, the highest rating available, in 1993 at the age of 36 and held that rating for over 16 years. The rating system has now changed and John’s rating is “Preeminent,” with a rating of 5.0 out of 5.0, the highest possible rating.  Brandon Bass, another lawyer is the firm, also has a rating of "Preeminent," and has a rating of 4.9.

Once again, the legal rating system is subjective. It is (and should be) very difficult for younger lawyers to get high ratings. Nevertheless, these ratings are another factor you should consider because it gives you some indication of the reputation the lawyer has in the legal community.

5. What is the lawyer’s AVVO rating?

Answer: AVVO is a relatively new attorney rating organization. It rates attorneys on a 1 to 10 scale, with 10 being the highest rating. A ranking of “10” is rated as “Superb.”

John Day and Brandon Bass have each earned a 10.0 rating.  Laura Bishop has a rating of 9.1, which also ranks in the "Superb" category.

6. What role has the lawyer played in bar associations?

Answer: This may seem like an unusual thing to consider, but we bring it to your attention because sometimes consumers put too much weight on this factor and other times they put to little weight on it. Let us explain.

Many lawyers advertise that they are members of the Tennessee Bar Association, the American Bar Association, and / or their local bar association. Mere membership in these organizations tells consumers virtually nothing about a lawyer’s competence – all one needs to join these organizations is a law license and the money to pay the dues.

However, active membership in a bar association tends to indicate that the lawyer is interested in advancement of his or her profession. This is a relevant factor to be weighed by consumers because it indicates a passion for the law. A lawyer who has been active in bar associations will list those activities on his or her website. Those that do not list activities probably have not been active and are probably just dues-paying members.

Membership, particularly active membership in certain other types of bar associations is an important consideration for those who seek to hire a personal injury or wrongful death lawyer. A lawyer who does personal injury or wrongful death litigation on behalf of consumers should be a member of the Tennessee Association of Justice and the American Association of Justice. Once again, these associations have no entrance qualifications other than a law license and the ability to pay dues, but a lawyer who says he or she does personal injury and wrongful death work and does not belong to these organizations is, in our opinion, either not truly committed to protecting the rights of personal injury victims and their families or is too cheap to support the efforts of these organizations.

Both of these organizations work with legislators to help keep the courthouse doors open for ordinary people and work to educate their members. If a lawyer who seeks your case does not belong to these groups (both of them, not just one or the other), we respectfully suggest that you not even consider he or she to be your lawyer. If the lawyer is a member of both groups, then look to see how active he or she is in the organizations.

Those lawyers that are or have been committee chairs or members of the executive committee of these organizations have demonstrated that they are willing to volunteer their time to preserve the right of citizens to access the court system. Those who are merely members are at least saying that they will pay dues to support the organizations, but are unwilling or unable to make the sacrifice necessary to advance the goals of the groups.

All of the members of Law Offices of John Day P.C. are members of the Tennessee Association for Justice and the American Association for Justice. John A. Day has been President of the TAJ’s predecessor organization and has served on its Board for 25 years. John has also served on the Executive Committee of AAJ’s predecessor and as Chair of the Council of State Presidents.

Brandon Bass serves on the Board of Governors of TAJ, the Board of Governors of the New Lawyers Division of AAJ, and the Board of Governors of the New Lawyers Division of the Tennessee Bar Association.   Laura Bishop serves on the board of the Lawyers' Association for Women.

7. How many years has the lawyer been practicing personal injury or wrongful death law?

Answer: There are lawyers who have been practicing law for 20 or 30 or even 40 years who lack the experience to handle a complicated personal injury or wrongful death case. There are lawyers who have been practicing eight years who have been fortunate enough to have worked in an environment that has fostered their ability to handle complicated personal injury or wrongful death cases.

Thus, while it is true that the number of years that a person has been practicing law is a relevant factor in determining whether they can handle a given case, it is only one factor. It is the actual experience of the lawyer, not the mere age or number of years of practice of the lawyer has, that is critical to understanding a lawyer’s competence.

So how do you determine that? Well, the best way, as we have discussed above, is the reputation of the law firm. The reputation of the firm among lawyers is a good way of determining the experience level and competence of the lawyers in it. Lawyers are simply not going to assign high ratings to other lawyers who lack experience or who do not do high quality work.

8. Does the lawyer have experience in the type of case you have?

Answer: As mentioned above, the issuance of a law license means you can practice law. Virtually any type of law. Legally, the lawyers of the Law Offices of John Day could practice tax or securities law, even though, quite frankly, we know little about either subject.

Thus, a lawyer who says that he or she accepts medical malpractice cases tells you nothing about the experience of the lawyer. Absolutely nothing. Why? There are no rules to stop a tax lawyer from advertising for medical malpractice cases. There is nothing to stop a lawyer who handles relatively simple car wreck cases from advertising that he or she seeks complicated medical malpractice cases. A license to practice law is a license to practice almost any kind of law (patent law is different) and unfortunately a lawyer can tell the public that he or she can do anything.

So, how can you tell what kind of experience a lawyer really has? It is difficult, but here are some tips.

• Ask. Simply say, have you ever handled a case like this one before? Most lawyers will not lie about their experience.
• Look at the lawyer’s website. Today, most lawyers will give an idea of the types of cases they have done in the past on their website. If they don’t have examples of your type of case on the website, they may well not have handled that type of case before. Likewise, if they describe themselves as practicing in every conceivable area of law, one must wonder if they have significant experience in any one area.
• Look at the lawyer’s speeches. Most lawyers who are recognized by peers as having some degree of expertise with a given type of case are invited to speak about their expertise to other lawyers. The speeches the lawyer has given often will be listed on the lawyer’s website. Look at those speeches and you will often get an understanding of what areas the lawyer has some level of expertise in.
• Publications in Legal Journals. Lawyers who are recognized by peers as having some degree of expertise with a given type of case are invited to write about their expertise to other lawyers.
• What about amounts of verdicts and settlements? That may tell you something, and may tell you nothing. Lawyers tell an old joke that goes like this: Do you know how to get a $1,000,000 settlement? Mess up a $2,000,000 case. Experienced lawyers know that that the size of a verdict or settlement does not reveal much information on how well the case was prepared or tried. Indeed, a sizeable verdict or settlement could mean that the client had a good case and good have had even a better result if a more capable lawyer had handled the case. So, while the size of verdicts and settlements gives you an idea of the size of case the lawyers have experience working on, it does not tell you much about the quality of the work done on that case. That is why reputation is so important – other lawyers recognize a high-quality work product and ethical practice and reward those efforts with professional honors.

9. What staff support does the lawyer have?

Answer: Lawsuits of any size are a team effort, and each person in the office plays an important role in helping preparing the case and maximizing the recovery for the client. Thus, you should look at the other lawyers and staff in the office and determine whether they can work as a team to help you with your case.

On our larger cases we almost always have two or more lawyers working on every case. Why? Assigning two or more lawyers to every case means that if one lawyer is busy in trial or is out-of-state taking depositions in other cases work can still be done on your case.

So, we believe that a consumer thinking of employing a lawyer to help them should look at the experience of the entire firm. What should you look for? The same items on this list. The younger lawyers may not have achieved the professional recognition from peers that often comes with many years of sophisticated law practice, but you can often tell by their description of their experience whether they are on-track to achieve a reputation for professional excellence.

In conclusion, we believe that you should hire a law firm that has what a football coach would call “depth.” Any major case requires a team approach, and a review of the qualifications of the people in our firm reveals that we have a rock-solid team.

10. Understand how the lawyer charges for time and expenses.

Answer: Ask the lawyer how they charge for their services. We believe that you will find that the most experienced, highly regarded lawyers and their firms rarely charge a higher contingent fee than less-experienced lawyers. Indeed, we are aware of many lawyers with no- or little-experience in a particular area of law who actually charge more than those who have experience. A reasonable consumer would ask this question: why should I pay the same fee (or more) for a lawyer with less experience?

11. What is the disciplinary history of the lawyer?

Answer: Lawyers are regulated by the Tennessee Supreme Court through the Board of Professional Responsibility. The Board of Professional Responsibility investigates lawyers that are accused of violating the ethical standards of the legal profession, which are set forth in Rule 7 of the Rules of the Supreme Court of Tennessee. A lawyer who violates the rules can be sanctioned by the Board of Professional Responsibility. The sanctions can be a private reprimand or as serious as disbarment, which means that the lawyer is prohibited for practicing law for some period of years or even life.

Lawyers and non-lawyers can file complaints with the Board about the conduct of a lawyer. The mere fact that a lawyer has had a complaint does not mean that the lawyer has done anything wrong – anyone can file a complaint about anything. Indeed, the clients of criminal defense lawyers not infrequently file complaints against their own lawyers, and people involved in divorce cases may file complaints against their spouse’s lawyers that have little basis fact. Thus, it is the substance of the complaint, not the facts of it, that is important.

You can look at the Board of Professional Responsibility website and see if a lawyer has received sanctions for violating a disciplinary rule. If you learn that your lawyer has had a disciplinary complaint filed against him or her, ask about it. If they deny it and you know it occurred, the denial says something about their integrity. If they explain what happened, use your common sense to determine whether the lawyer’s error was serious or minor or whether it is likely to happen again.

For example, some lawyers have had disciplinary complaints filed against them for not filing a lawsuit on time, with the result that the client has lost a right to bring a lawsuit. This is almost always a mistake that should not occur. However, most lawyers believe that if the lawyer readily admits the mistake, tells the truth about what occurred, and turns it over to the lawyer’s malpractice insurance carrier so that the client can be treated fairly the lawyer should not be judged too harshly. Lawyers are human, and mistakes will happen.

On the other hand, if a lawyer covers up or lies about a mistake, or makes repeated mistakes of the same type, one must question the integrity and competence of the lawyer or, at a minimum, his or her attention to detail.

You should be very concerned with a lawyer who has an extensive history of complaints found to be valid by the Board of Professional Responsibility.

12. Does the lawyer have malpractice insurance coverage?

Answer: Believe it or not, there is nothing in the law that requires lawyers to have malpractice insurance coverage. As has been explained earlier, any lawyer can make a mistake, and he or she should have malpractice insurance to protect a client from harmed by the mistake. Feel free to ask the lawyer you are thinking about hiring whether he or she has malpractice insurance coverage and ask them to confirm their answer in writing. If they don’t have it, hire a different lawyer.

Law Offices of John Day P.C., and its predecessor firms, have had malpractice insurance coverage since it was founded in 1993. We will continue to do so. In the unlikely event that we make an error that causes harm to a client (none of the lawyers in the firm have ever been sued for legal malpractice by a client) we want the client to have the benefit of the insurance coverage we purchased to protect them.

13. What is the size of the lawyer’s caseload?

Answer: Lawyers maintain different numbers of cases, and their ability to do so is dependent on several factors. First, the type of case is a very relevant. One lawyer can able do very competent, timely work on 75 or 100 worker’s compensation cases at one time if he or she has well-trained support staff. One lawyer would have a very difficult time working doing very competent, timely work on ten medical malpractices cases on behalf of the patient at one time, even if he or she has well-trained support staff.

Thus, a consumer should inquire about the lawyer’s caseload and case-mix (the type of cases) in an effort to determine whether the lawyer will be able to give the consumer’s case the attention it deserves. To be sure, it will be difficult for the consumer to evaluate the answers to these questions, but the way the lawyer responds to these questions will give the consumer a better understanding of the lawyer’s practice and personality.

14. Does the lawyer have the ability to finance the litigation appropriately?

Answer: As discussed in more detail in another Law Offices of John Day, P.C.  Legal Guide, the litigation of certain types of personal injury and wrongful death cases, particularly medical malpractice, products liability, and tractor-truck cases, can be very expensive. A lawyer who accepts those cases for consumers must have the financial ability to advance money for those expenses because most consumers are unable to do so. Some lawyers are very under-capitalized, i.e., they lack the ability to adequately finance a case to completion. The lack of financial resources can affect the outcome of the case, because the lack of financial resources can impact the quality of expert witnesses the lawyer employs to assist in the case, the number of expert witnesses, the number of depositions that are taken (court reporters are paid to transcribe depositions, and they are expensive), the quality of demonstrative exhibits at trial, etc.

So how does a consumer evaluate this factor? It is very difficult. Most lawyers will not turn over their balance sheets to prove to you that they have the financial resources to finance the case. One way a client can gain information about this issue is by determining if the lawyer is asking the client to borrow money or pay interest on the money the lawyer borrows to finance case expenses. This indicates one of two things: either the lawyer lacks the ability to finance the case, or the lawyer has the ability to do so but is shifting the cost of financing case expenses to the client (which increases the total cost of hiring that lawyer and increases the lawyer’s profit). If a lawyer asks you to borrow money to finance the case, make sure you understand the total cost of borrowing. Many of the companies who do financing for lawyers have charges in addition to interest that greatly increase the effective interest rate charged to the client.

Once again, the consumer must ask why they would hire a lawyer who refuses or lacks the ability to finance a case when there are highly-regarded lawyers who do not do so.

At Law Offices of John Day P.C. we have never charged interest or required our clients to borrow money to pay case expenses. This means that the total cost of our legal representation is less that lawyers who charge the same contingent fee but also charge interest or force the client to borrow money for expenses.

15. What is the personality of the lawyer?

Answer: Lawyers are people (really!) and have different personalities. There are some inaccuracies in every generalization, but most lawyers would agree that lawyers who successfully try personal injury and wrongful death cases tend to more aggressive than passive, more self-confident (or perhaps even arrogant) than unusually humble, and better communicators than certain other types of lawyers. Frankly, lawyers who lack self-confidence do not belong in courtrooms.

Thus, before you hire a lawyer you need to meet the lawyer. Do not rely solely on a commercial or a website description of the lawyer or the lawyer’s firm. Sit down and talk with the lawyer, preferably in the lawyer’s office, and try to figure out if (a) the lawyer is the type of person you want to work with during the pendency of your case; and (b) the lawyer is the type of person you want as your advocate before a jury if your case has to be tried? Use your common sense in making this decision, considering all of the other factors that are mentioned above.

Why do we recommend meeting the lawyer in his or her office? It has nothing to do with the convenience of the lawyer. A lawyer’s office may provide valuable information about the lawyer. Does it appear well-organized? Is it clean? Does it present a professional appearance? Are you treated with respect by other employees of the firm? Does the lawyer meet with you at the appointed time? Is he or she prepared for the meeting? Are you given the opportunity to ask questions? Are those questions answered in language you can understand?

This is not to say that a lawyer needs to have a fancy office in a fancy building to be a good lawyer. Indeed, a fancy office may just be a sign that the lawyer spends money on material things that make it appear that he or she is knowledgeable and successful when the reality is quite different. That being said, the appearance of a lawyer’s office says something about the lawyer.

Many lawyers offer to visit with you at your home or even if the hospital if your circumstances are such that you cannot come to their office. This is often an offer made for your convenience, and should be viewed as such. However, unless you or a trusted loved one has researched the other factors on this list carefully before a home or hospital visit by a lawyer, most lawyers would recommend that you not to hire a lawyer simply because he or she advertises or offers to visit with you at your home or at the hospital.

You should also pay careful attention to whether and how the lawyer explains the law and what he or she will do to investigate your case. Your lawyer should be able to articulate the law to you in words you understand. If the lawyer cannot do so you will understandably question whether he or she will be able to articulate your position before a jury. You should ask the lawyer questions about anything you do not understand, and if the lawyer will not take the time to answer your questions, or does an inadequate job of answering them, you need to be concerned. Communication is a key part of the attorney client relationship, and a lawyer who cannot communicate effectively at the initial client meeting may have difficulty communicating with you as the case progresses and difficulty communicating with a judge or jury.

You should also be very wary of a lawyer who offers only positive thoughts about your case. This is a difficult thing for some people to understand, but excellent lawyers strive to be objective during their conversations with their clients. That is, these lawyers understand that it is their job to learn, evaluate and communicate the strengths and weaknesses of every case, and not just tell the client or potential client what they want to hear. Almost every case has a weakness, and the lawyer should be able to articulate those the weaknesses in a case very early based on the information that is available. You want to know about both the strengths and weaknesses of your case because both impact the value of your case. A lawyer who does not discuss case weaknesses either does not recognize them or is afraid of hurting the client’s feelings by having an open and honest discussion about the case. Excellent lawyers know that such conversations are an essential part of the attorney-client relationship, and know how to communicate their concerns without offending the client.

In summary, you want a lawyer who will be your effective advocate, but you also want one who can recognize and appropriate handle any negative aspects of your case. You also want a lawyer to tell you the truth about the positive and negative aspects of your case so that you have a full understanding of what is necessary to win your case and how any negative aspects of the case will affect your ability to do so. Finally, you want a lawyer who has compassion for your situation, the ability to communicate the law to you, and a professional appearance.

16. The Lawyer’s Early Evaluation of the Case

Answer: You should not hire any lawyer who tries to tell you that he or she knows the value of your case the very first time you meet with them. Never. Under any circumstances.

Why? Because experienced lawyers know that an investigation must be undertaken before a value can be put on a case. Lots and lots of factors impact the value of a case, and no lawyer can honestly, accurately evaluate a case the first time they meet a client, particularly if they have not done an investigation of the case before meeting the client.

So why do some lawyers do so? These lawyers want you to hire them and they think that if they tell you the value of the case and the dollar value meets or exceeds your expectations you will hire them Stay away from these lawyers. They are too eager for your case.

In fact, if you meet such a lawyer, ask them this question: Are you willing to guarantee that the settlement or judgment in my case will be $X (the amount they suggested earlier)? Almost all of them will quickly back off their previous number, and will quickly say that there are lots of different factors that can impact the value of the case. (If that is so, why didn’t they just say that earlier rather than give you a number?) I repeat: do not hire a lawyer who tries to tell you that he or she knows the value of your case the first time you meet with them.

16. What about a lawyer who suggests that they have a special relationship with the judge and that  you should hire them because they have such a relationship?

Answer: Lawyers who say such things are scumbags. 99.9% of judges would never allow their personal feelings for a lawyer to directly affect the outcome of the case. To do so would be unethical, and 99.9% of judges would never consider acting in such a fashion.

It is true, of course, that judges tend to respect lawyers who are prepared, who show up to court on time, who understand law and court procedure, and who answer the judge’s questions directly and honestly. And judges, like every other human, would tend to more readily accept the word of a lawyer who earned respect than a lawyer who demonstrated that he or she was not entitled to respect. But disregard the facts or the law simply because of a personal relationship? No, folks, it rarely happens.

Finally, think about it this way: If you were a judge and learned that your lawyer “friend” was going around telling people that he or she could improperly influence you in a case, how would you feel about it?

No, stay away from this type of lawyer. Like the lawyer who evaluates a case too early, this lawyer is trying too hard to get your case and, at the end of the day, you are very likely to be disappointed in the service you actually receive.

17. Thinking About All of These Things is a Lot of Work.

Answer: Yes, it is a lot of work to hire the right lawyer for your case. But these are the things that other lawyers take into account when hiring a lawyer, so it just makes sense to go through the same process for yourself. Hopefully, you will only have to hire one personal injury lawyer in your entire life (you certainly don’t want another injury!) and therefore you should do the work necessary to make the right choice.

© 2011, Law Offices of John Day P.C.

INJURY TO A CHILD:

1. My child has been injured. How long do I have to bring a lawsuit on behalf of my child?

Answer: Under the law in Tennessee, there are time limits on which any person can bring a lawsuit against another. The general rule is that a child has until one year after his or her eighteenth birthday to bring a lawsuit to recover for a personal injury. Some people argue, however, that a parent’s claim for medical expenses incurred on behalf of the child must be filed by the parent within one year of the incident causing the injury, and thus it makes sense to consult with a lawyer promptly about any injury to your child that you believe was caused by someone else’s negligence.

If the child was injured as a result of medical malpractice, different rules apply. Medical malpractice claims are subject to a statute of repose. A statute of repose imposes an absolute time limit for bringing a claim regardless of the age of the injured person. The statute of repose for bringing a medical malpractice claim is three years. This means that a medical malpractice claim must be initiated within three years of the date of the malpractice regardless of the age of the injured person. Therefore, for example, a medical malpractice claim for a child injured during birth must be initiated within three years of the date of the birth of the child. There are certain other types of lawsuits where a minor must take legal action before his or her 19th birthday.

A new Tennessee law requires that medical providers be given 60 days advance, formal notice before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated. The consequence of a late filing – even by one day – is the loss of your legal rights. Therefore, the safest course of action is to contact an attorney as soon as possible if you believe you may have a claim. Most lawyers do not charge for this type of consultation.

2. What damages are recoverable in a lawsuit arising from an injury to a child?

Answer: An injured child may recover the cost of past and future medical expenses and (if working) lost wages. If the child’s ability to earn a living has been impaired then the child can recover for the lost capacity to earn money. The child may also recover for pain and suffering, the loss of enjoyment of life, disability and disfigurement.

If a parent or family member has paid expenses (such as medical expenses) on behalf of the child as a result of the injury then those may be recovered. Parents may also recover for the loss of services of a child who has been injured.

3. What medical bills can be recovered?

Answer: People injured by the negligence of another can recover the reasonable medical bills necessarily incurred as a result of the incident. To the extent that the injuries likely require on-going medical bills in the future, those future medical expenses can also be recovered.

4. What is physical pain and suffering?

Answer: Pain and suffering is physical discomfort caused by an injury.

5. What is mental or emotional pain and suffering?

Answer: Mental or emotion pain and suffering includes anguish, distress, fear, humiliation, grief, shame, or worry.

6. What is disfigurement?

Answer: Disfigurement is a permanent injury that impairs a person’s appearance. This includes permanent scars and lost limbs.

7. What is loss of enjoyment of life?

Answer: Lost capacity for the enjoyment of life compensates the injured person for limitations put on the ability to enjoy the pleasures of life as a result of an injury. This includes the inability to engage in activities he or she once enjoyed.

8. What is disability?

Answer: Disability is the loss of the claimant’s ability to do the same physical things that he or she did before the injury.

9. What is loss of earning capacity?

Answer: Loss of earning capacity is the loss of the ability to work and earn money. It may be an amount equal to lost wages as a result of the injuries received in the incident. If your child had suffered permanent injuries that affect his or her ability to work and earn money, it includes those monies likely to lost in the future because of the injuries.

The reason loss of earning capacity may exceed lost wages is because sometimes it can be shown that a person is earning a particular wage only temporarily and will be progressing up the income ladder. For example, if a college student is injured and can never work again, it would be unfair to say that the student’s earning capacity is what he or she was making at a part-time job at McDonald’s. Instead, expert witnesses are employed to demonstrate the likely earnings of the student over his or her work-life expectancy if the injury had not occurred.

10. I think I have a personal injury claim to bring on behalf of my child. What do I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

 DEATH OF A CHILD:

1. How long do I have to bring a lawsuit arising from the death of my child?

Answer: The most conservative answer to this question is one year from the date of the injury that later gives rise to the death.

If the child died as a result of medical malpractice, then a new Tennessee law requires that the medical providers be given 60 days advance, formal notice before being sued. The notice must be given before the expiration of the one year time limit for bringing the lawsuit. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

Determining the deadline for filing suit in a particular case is very complicated and therefore the safest course of action is to contact an attorney as soon as possible if you believe you may have a claim.

2. What damages are recoverable in a lawsuit arising from the death of a child?

Answer: Damages recoverable for the loss of a child include medical and funeral expenses. The parents may also recover for the pecuniary value of the child’s life. This is determined by taking into account many factors including the wages the child would have earned during the child’s lifetime, and the loss of the child’s love, society and affection.

3. My child lost his life as a result of someone’s mistake. What are my legal rights?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010 Law Offices of John Day P.C.