Litigation Process

November 15, 2010

What Happens If I Lose A Trial in a Personal Injury or Wrongful Death Case In Tennessee?

I have a jury trial in state court in Nashville in a couple weeks in my car wreck case. Do I have to pay the other side’s attorney’s fees or other costs if the jury rules against me?

Ordinarily, a person who loses a jury trial in personal injury or wrongful death case in state court in Tennessee does not have to pay the winning party’s attorney’s fees. However, the losing party may have to pay certain costs incurred by the winning party, such as costs for expert witnesses to give depositions and appear at trial, costs charged court reporters, etc. These costs are known as "discretionary costs" because a trial judge has the discretion to order that the loser pay some or all of certain costs incurred by loser. Your lawyer should be able to estimate what those costs would be.

The only time you would have to pay the winning party’s attorney’s fees after a loss in a personal injury or wrongful death case is if the trial judge determined that your lawsuit was "frivolous." The mere fact that a case is lost does not mean it is frivolous. You should ask your lawyer whether there is any risk that your case could be determined frivolous by the trial judge, but my experience is that it would be very uncommon for a judge to declare that a car wreck claim or defense was "frivolous." The only exceptions I can think would arise in situations where it was determined that a person faked (not just exaggerated, but truly faked) an injury, encouraged or paid others to give patently false testimony in support of the case, and other situations that are extremely rare.

November 13, 2010

What Does It Mean When A Lawyer Says He Will Work on A “Contingent Fee?”

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

I hear personal injury lawyers advertise that they will work on a "contingent fee." What does that mean?

A contingent fee is a fee that is payable only in the event the case is successful. No fee is owed if the case is not successful.

In personal injury and wrongful death cases some lawyers will accept the case for a percentage of the recovery. For example, if a lawyer agrees to accept representation in a case on a one-third contingent fee, that means that the lawyer will not charge any money if the case is lost. If the case is successful the lawyer will be paid one-third of the total recovery. For example, if the recovery is $60,000, the lawyer’s fee is $20,000. If the case is lost, the lawyer charges no fee for the work performed on the case.

November 12, 2010

Can I Require the Insurance Company to Pay Interest on My Personal Injury or Wrongful Death Settlement?

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

I was hurt in a car wreck six months ago. It wasn’t my fault. I have been waiting for over a year for the case to settle. I lost three months of wages and have had to pay some medical bills that were not covered by my health insurance. Can I get the insurance company to pay interest on my settlement? It doesn’t seem fair that they can delay my settlement and not have to pay interest.

Not under Tennessee law. Tennessee law does not permit the recovery of interest in personal injury or wrongful death lawsuits.

The only exception to this rule is if you win a case and a judgment is entered by the court you are permitted to recover interest. Interest accrues at the rate of 10% per year on the amount of the judgment that is unpaid.

November 12, 2010

What is a “Complaint?”

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

I am getting ready to sue someone over a car wreck. My lawyer says that she is going to file a "complaint." What is that?

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.”

The complaint is delivered to the person who is sued (the "defendant") with a court order to respond to the lawsuit (a "summons"). In Tennessee, a complaint must be responded to by a defendant within thirty days after it was received by the defendant.

November 11, 2010

Deadlines in Tennessee for Filing Medical Malpractice Cases

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

I believe that my doctor committed medical malpractice on me and injured me for life. What is the deadline for filing a medical malpractice case in Tennessee?

The short answer to this question is one year plus one hundred-twenty days. But the issue is really more complicated than that.

Generally, medical malpractice cases must be initiated within one year of the incident which causes the injury. For example, if a doctor performs surgery on the wrong arm of the patient, the patient will have one year from the date of the surgery to initiate a claim. A new Tennessee law requires that medical providers be given 60 days advance notice in the proper form before being sued for medical malpractice. The notice must be given before the expiration of the time limit for initiating the claim, so generally within one year. If proper notice is given, the deadline for filing the lawsuit is then automatically extended by 120 days.

November 9, 2010

Why Do I Have to Document My Lost Wages?

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

I was hurt when I fell in on a slippery floor in a grocery store. I broke my right leg. I missed ten weeks of work on my construction job. My lawyer says that we need a statement from my employer stating that I missed ten weeks of work and indicating how much money I would have made had I worked. Why is that necessary? I don’t want to hassle my boss with this.

Insurance companies need documentation to evaluate personal injury cases because some people don’t tell the truth about what happened to them or how the injuries they suffered cost them money. The claims adjuster for the insurance company has to make sure that his or her file demonstrates that they did a good job gathering evidence to properly evaluate the claim. This includes seeking information from other people, like your boss, to back up what you say.

I am sure that you are telling the truth about the time you missed from work. The insurance adjuster may think you are, too. But the adjuster needs to be able to prove to his or her boss that your claim was thoroughly and properly evaluated, and that is why documentation is necessary. The files of insurance adjusters are evaluated from time-to-time by auditors to make sure that they are not handing out the company’s money without good reason, and thus the insurance adjusters want to make sure that their files reflect a reasonable basis for the decision they made to settle the claim.

November 6, 2010

What Are Depositions?

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

My lawyer says I have to give a deposition. What is that?

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. In Tennessee 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.

November 5, 2010

Bankruptcy and Filing of Personal Injury or Wrongful Death Claims

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

I was hurt in a car wreck six months ago. I lost my job and my medical bills are enormous. I am behind on my mortgage and have been unable to make my car payments. Should I file bankruptcy, get my financial house in order, and then file a lawsuit against the trucking company? I want to be able to get rid of all this debt and be able to keep whatever money I recover in the lawsuit to meet my needs for the rest of my life.

There is a major problem with your plan. When you file for bankruptcy you are asked to answer questions under oath about your assets and liabilities. One of the questions you will be asked is whether you have any claims against another person or entity. Thus, you will have to tell the Bankruptcy Court that you have a claim pending against the driver of the other car. This is true even though you have not filed a lawsuit – you still are considered to have a claim pending that must be disclosed to the Court.

When you tell the Bankruptcy Court that you have a claim pending that fact will be taken into account in determining whether you are a candidate for bankruptcy and what amount should be paid to your creditors. As I explained in a prior post, you will also lose significant control over the progression of your case.

November 4, 2010

Can A Mother Who Did Not Pay Child Support Recover Money When Her Child Gets Killed in a Truck Accident?

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

My child was killed by a drunk driver. He was 10 years old. I want to file a lawsuit. His no-good mother, who never paid child support as ordered by the court and did not visit my son for the for the six year period after our divorce, says she is going to file a lawsuit, too. Can she do that? Does Tennessee law permit her to get money from the death of our son when she had nothing to do with our son when he was alive?

Unless you have some physical or mental health issue that you have not mentioned, you will have the right to bring the lawsuit.

Tennessee law provides that a parent who has a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period is not permitted to recover damages for the death of the child. Thus, to cut off the mother’s right to money out of any recovery you make, you will have to demonstrate that (a) there was a child support order; (b) the mother intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

November 2, 2010

What Are Motions in Limine?

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

My husband and I have a trial in Lebanon, Tennessee next month. Our lawyer said that the other side filed motions in limine. What does that mean?

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

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