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

1. Is there a deadline to file a lawsuit?

Answer: Yes.  Statutes of limitation passed by our legislature limit the time to file a lawsuit in all types of cases.  The length of time varies depending on the type of case.  In most instances you have one year from the date of the incident causing injury to bring a lawsuit, although shorter time limitations apply in some types of cases.  There are other laws known as “statutes of repose” that provide absolute deadlines on filing lawsuits.  This type of law may result in you losing your rights before you know you have suffered an injury.  Given the many factors that must be considered in determining your specific deadline to file a lawsuit, the best course of action if you believe you have a potential legal action is to contact a lawyer immediately. Our firm will meet with you at no charge to help you determine if you have a claim and help you understand what deadline for taking action actually applies in your case.

2. How do you initiate a lawsuit?

Answer: A lawsuit is initiated by the filing of a “complaint.”  A complaint identifies the persons or entities being sued.   It includes a short and plain statement of the pertinent facts, outlines the legal claims, and states the types of damages that resulted from the negligence of another person. The person who files a lawsuit is called a “plaintiff.”

3. What happens after the lawsuit is filed?

Answer: Once a lawsuit is filed, the party being sued (the “defendant”) must be provided with a copy of the lawsuit.  There are technical requirements for the timing and manner of serving notice of the lawsuit on the defendant.  Once the person sued is given proper notice, the person will have a period of time to file a response to the complaint.  The response is called an “answer.”  The next step is called “discovery.”

4. What is discovery?

Answer: The discovery phase of a lawsuit is the phase during which each side finds out about the other side’s claims and defenses. The various methods of gaining this information are often referred to as tools of discovery or simply “Discovery.” These methods include depositions, interrogatories, requests for production, medical evaluations, requests for admissions, and subpoenas. Each of these discovery tools is described below.

5. What are depositions?

Answer: A deposition is testimony given by a plaintiff, a defendant or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful.   The deposition is taken by a lawyer asking questions of the deponent.   Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff.   Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

6. What are interrogatories?

Answer: Interrogatories are written questions sent from one party in a lawsuit to an opposing party about issues related to the lawsuit.  For example, in a lawsuit arising from a motor vehicle collision, each driver may send interrogatories to the other ask for driving histories, including whether the opposing driver has ever received a driving citation. The party responding to interrogatories must sign a statement swearing or affirming that the responses to the interrogatories are true.

7. What are requests for production of documents?

Answer: Requests for production of documents are written requests sent from one party in a lawsuit to an opposing party for the production of documents related to the issues presented by the lawsuit. For example, in a lawsuit arising from a motor vehicle collision, each driver may ask the other driver to produce a copy of the driver’s licenses.

8. Why is my medical history important?

Answer: Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim.

9. What are Medical Evaluations?

Answer: If your medical well being is in question in a case the opposing party may request that you undergo a medical evaluation by a doctor of their choosing.   That doctor will offer his or her opinion about the nature and extent of your injuries and the impact of those injuries on your later life. That doctor may disagree with your doctor’s opinion as to the nature and extent of your injuries, and the jury will hear from both doctors at trial.

10. What are requests for admissions?

Answer: During the discovery phase of a lawsuit one party may send to an opposing party a list of facts and request that the receiving party admit the truth or accuracy of those facts. For example, in a lawsuit arising from an automobile collision one party may request that the other party admit that date, time and location of the collision. Requests for Admission are a discovery tool used to narrow the issues that are in dispute in the case.

11. What are subpoenas?

Answer: Subpoenas are legal papers issued by a court requiring the appearance or production of a person or thing at a deposition or hearing. A subpoena may be served on a person and require the appearance of that person to give a deposition or appear in open court on a specific date and time. Subpoenas may also be served on a person or business and require that documents or things be produced for inspection and copying on a specific date and time.

12. What is a scheduling order?

Answer: A scheduling order is an order entered by a court that sets certain deadlines in case such as the date depositions will be completed and the date the trial will be held.

13. What are “proof” depositions?

Answer: Depositions are sworn statements taken from a party or witness in a lawsuit and they are often part of the discovery process. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful. The deposition is taken by a lawyer asking questions of the deponent. 

“Proof” depositions are taken and presented at trial as evidence in lieu of having the witness testify in person. A “Proof” deposition may be taken for the convenience of the witness who cannot otherwise appear in person at trial or as a cost saving mechanism to avoid the expense of bringing the witness to testify live at trial. Certain people, such as doctors, are not required to come to trial to testify about their care and treatment of a patient who has brought a lawsuit and thus they testify at trial via a proof deposition.

14. How long does discovery last?

Answer: It depends on the type of case, the number of parties to the lawsuit, the number of lawyers involved, the type of injuries suffered by the plaintiff and how quickly the plaintiff recovers from those injuries, the willingness and ability of the plaintiff’s lawyer to push the case forward, the willingness of the defense counsel to cooperate in scheduling depositions, the willingness of the parties to answer interrogatories and other discovery devices on time, the willingness of the court to intervene and impose and make all parties follow a scheduling order, and a host of other factors.

15. What is a pre-trial conference?

Answer: Generally, conferences are held prior to a trial so that the Judge and lawyers can resolve disputes about the admissibility of evidence, the timing of witness testimony, and other logistical matters. Pre-trial conferences can greatly streamline the progression of a trial thereby minimizing the financial cost on the parties, witnesses, jurors and the Court.

16. What are motions in limine?

Answer: Motions in limine are requests by the parties to the Court for rulings regarding the admissibility of evidence in advance of trial. 

17. When will the trial occur?

Answer: Trial dates are set by the Court. When a trial will be held in any particular case depends on many factors including what court the case is filed in, what county or district the case is filed in, the type of case, the complexity of the case, whether the case is a jury trial or a non-jury trial, and how long the trial will last. 

18. Will my case be settled before trial?

Answer: Now days, most cases do not go all the way to trial. 

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

It is difficult to predict, however, whether any particular case will settle. In addition, our experience is that a case is more likely to settle at a higher dollar value if the insurance company (a) sees that the case has been prepare for trial and (b) has been appropriately prepared by lawyers who it knows are not afraid to go to trial. Thus, our office prepares all cases as if the case is going to be tried. Quite frankly, this means we invest more time and money into cases than many other lawyers, but we believe that this approach leads to better results for our clients.

19.  I think I have a personal injury or wrongful death case. 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 accident 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.

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.

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.

1. Do I have to pay a consultation fee to meet with a lawyer about my personal injury or wrongful death case?

Answer: At The Law Offices of John Day, P.C., we never charge a consultation fee to a potential client who consults with us about a personal injury or wrongful death case. This is true for virtually every lawyer who regularly does personal injury or wrongful death cases, although it would always be wise to ask about the need to pay a consultation fee before meeting with any lawyer about any type of legal matter.

2. How do lawyers charge in personal injury and wrongful death cases?

Answer: Most lawyers charge what is known as a contingent fee in personal injury cases and wrongful death cases. A contingent fee is a charge based on a percentage of the recovery of money damages. The fee is “contingent” upon a monetary recovery, and means that if the case is unsuccessful there is no fee for the lawyer’s services.

Lawyers who do personal injury and wrongful death work usually also require the client to reimburse them for expenses they incur in preparing and trying the case. The fee agreement with the lawyer may require that the expenses be paid to the lawyer if the case is unsuccessful, or may provide that the lawyer will “write off” the expenses if the case is unsuccessful. You should ask the lawyer you are thinking about employing for a copy of written fee agreement and understand what expenses will be charged and what responsibility, if any, you will have for expenses if the case is unsuccessful.

The Law Offices of John Day, P.C.  typically accepts contingent fees in personal injury and wrongful death cases. However, at the request of the client we will work by the hour. We have learned that some clients have the resources to pay for our services by the hour (fees are billed monthly; retainer required).

The amount of the contingent fee we charge depends on the type of case we are asked to undertake. Some contingent fees are set by statute. For example, in worker’s compensation cases the contingent fee cannot exceed 20% of the gross recovery. Medical malpractice cases are much more complex, and the law requires that the maximum fee in those cases is 33 1/3 % of the gross recovery.

3. Do I incur any expense in litigation other than the attorney’s fee?

Answer: Most lawyers who do personal injury and wrongful death litigation ask to be reimbursed for expenses they incur in prosecuting your case. Some lawyers hold the client responsible for those expenses if the case is unsuccessful. Other lawyers will “write-off” some or all of those expenses if the case is unsuccessful. The written fee agreement between you and the lawyer should disclose whether the client will be responsible for expenses if the case is unsuccessful.

Here is a list of the types of expenses that may be charged to your case:

i. Expert Witness Fees. Some cases require, and many cases benefit from, the use of one or more expert witnesses. Expert witnesses charge by the hour – some medical experts charge as much as $1500 per hour to consult with a lawyer and give testimony at trial. In some cases there are no expert witnesses and therefore no expert witness fees. In medical malpractice cases expert witness fees frequently exceed $50,000. In products liability cases expert witness fees may exceed $150,000.

ii. Doctor Fees. In cases involving personal injury and wrongful death, a doctor must usually testify that the incident that is in dispute caused the client’s injury or death. These witnesses also testify about whether the injuries caused pain, suffering and disability and whether there is any permanent pain, suffering or disability caused by the incident. These doctors – usually the doctors who treated you in the hospital or on an out-patient basis – charge $300 to $750 per hour to testify in your case.

iii. Court reporter Fees. Court reporters transcribe depositions and trial testimony. Court reporter charges vary, but it costs about $2000 per day to have a court reporter present at a deposition or trial and to have a copy of a transcript prepared.

iv. Videographer Fees. Experienced personal injury and wrongful death lawyers know that video-taped depositions are very useful at trial and will ask that depositions of certain witnesses be video-taped if the dollar value of the case justifies the expense. Professional videotaping of a deposition costs about $1000 per day.

v. Demonstrative Aids (Exhibits). Some exhibits (photographs of a wrecked car or an intersection) are inexpensive. Other exhibits (computer animations) are very expensive. Experienced personal injury and wrongful death lawyers take the dollar value of the case into account in determining what exhibits are necessary to maximize the value of the case.

vi. Travel. Sometimes the case involves out-of-town witnesses and thus the lawyer must travel. The expenses attendant to such travel are charged to the client as case expenses. The amounts of those expenses vary from case to case. Two other points must be mentioned here. If you employ an out-of-town or out-of-state lawyer you may be charged for travel expenses for that lawyer to work on your case in Tennessee. This will decrease your recovery. Make sure you understand if you have to pay the lawyer’s expenses for traveling to see you or to work on your case and weigh that factor in determining whether you should hire that lawyer or a local lawyer. Second, some lawyers use the fact that they have private planes to impress clients. If you hire such a lawyer, make sure you understand how much you will be charged for use of the private plane during your case. Private plane expenses can be much higher than commercial air travel or ground travel, and you need to know how you will be charged. Responsible lawyers who use private planes in their law practice will charge you only the cost of what a commercial airline would charge for a pre-purchased, coach ticket on a commercial airline for the same flight.

viii. Miscellaneous expenses. Lawyers also include as case costs the out-of-pocket expense incurred for conference calls, long-distance calls, photocopies, postage and express delivery service.

4. I have heard that some lawyers charge their personal injury and wrongful death clients interest. Is that true?

Answer: As mentioned earlier, lawyers usually advance money to finance the costs of litigation. These expenses may be small – several hundred dollars in worker’s compensation cases to hundreds of thousands of dollars in certain medical malpractice cases and products liability cases. Our law firm almost always advances these expenses to its clients and does not charge interest or any other fees. In the event we win the case, we are repaid from the money we recover for the client. Expenses are deducted after the fee is calculated.

Some law firms require the client to pay the expenses or require the client to pay the first several thousand dollars toward these expenses. There is nothing wrong with a lawyer asking for a payment toward expenses, and the client simply must decide whether to employ a lawyer who makes such a request or hire a lawyer who will advance these expenses for the client.

Other law firms borrow money for the client and pay the expenses, and then charge the interest and fees incurred by the law firm to the client at the end of the case. Lawyers are permitted to do this as long as the financing arrangement is fully explained to the client at the time the lawyer is employed. However, a client thinking about hiring a lawyer who uses this method of financing cases must understand that (a) the effective interest rate and fees can be substantial and can be as high as the rate on a credit card; and (b) there are many good law firms that will not charge interest and fees and thus the overall charge for legal representation from a firm that does not charge interest may well be less.

5. Can a lawyer give me money for living expenses while my case is pending?

Answer: In Tennessee a lawyer cannot ethically pay for your living expenses or give you cash while a case is pending. A lawyer who offers to do so has committed an ethical violation and should be reported to the Tennessee Board of Professional Responsibility.

6. Does a contingent fee agreement with a Tennessee lawyer need to be in writing?

Answer: Yes, in Tennessee lawyers are supposed to document all contingent fee contracts in writing. If you do not have a written contract with your lawyer, you should ask for one to eliminate any possible future misunderstanding.

7. I think I have a personal injury case. 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.