Litigation Process

July 7, 2010

What Questions Can I Be Asked in A Lawsuit?

I was hurt in a truck wreck. I could not get the case settled and I filed a lawsuit. Now the trucking company is asking me all sorts of personal questions. Can they do that?

Yes, within limits. A person who is sued has the right to ask you information about your claim and also questions reasonably designed to find evidence that might be admissible at trial. Thus, if you allege that you hurt your back in a lawsuit, they have the right to know if you ever hurt your back before and, if so, how you were hurt and what medical treatment you received.

If you claim you lost wage as a result of the accident the company has a right to know how much money you make and see documentation of your wage loss.

July 5, 2010

Liability for Injuries Caused by Fireworks

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

My neighbor was playing with fireworks this weekend. One of the fireworks shot into my yard and hit me right in the face. I was burned and I injured my left eye. I immediately went to the emergency room and am seeking additional medical treatment. What are my rights?

Some cities in Tennessee prohibit the use of fireworks. If you live in a city that prohibits fireworks your neighbor violated the law and you will have a very strong claim against him.

Even if the law does not prohibit the use of fireworks, your neighbor had the duty to exercise reasonable care while playing with the fireworks so as not to cause injury to anyone else. The strength of your case depends on exact facts.

June 30, 2010

Timing a Bankruptcy Filing and the Filing of a Personal Injury or Wrongful Death Claim

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

I was hurt in a wreck with a tractor-trailer 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 trucking company. 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.

June 29, 2010

Will Filing Bankruptcy Affect My Personal Injury Case?

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

I have a personal injury lawsuit pending in court. I am 3 months behind on my mortgage and the company is threatening foreclosure. My credit card bills are way behind. I think I need to file bankruptcy. How will filing bankruptcy affect my personal injury claim?

Your pending personal injury lawsuit will become an asset in the bankruptcy proceeding and the value of your case will be taken into account in determining whether you are in fact insolvent and the payment to your creditors.

More importantly, the bankruptcy trustee assumes control of your case and decides whether it should be settled or tried and, if it should be settled, how much it should be settled for. You will have the right to speak your opinion about such matters, but at the end of the day the bankruptcy trustee and the bankruptcy judge will make these important decisions.

Thus, filing bankruptcy will cause you to lose control over you case.

June 24, 2010

What Happens in a Trial?

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

I have never filed a lawsuit and don’t know anything about what happens in a trial of a personal injury or wrongful death suit. Can you explain it?

Sure. In fact, we have written this Legal Guide that I think will answer your questions

June 14, 2010

Lawyer Offers Potential Client Money for Living Expenses

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

I got hurt in a truck wreck. I spoke to a Tennessee lawyer and he said I had a really good case. I have lost my job as a result of the wreck and my finances are a complete mess. This lawyer said that if I would hire him to help me on the case he would loan me $1000 per month while the case was pending and that I could pay him back, without interest, when the case was over. Is there any reason I shouldn’t do that?

Yes. You should not do it because the lawyer’s offer of money to you was a violation of Tennessee ethics rules for lawyers. A lawyer can advance the costs of pursing the case, but cannot give a client money for living expenses or a fee for hiring the lawyer for the case.

So, you might ask, why should you care? The lawyer’s ethics are not your problem. You need money. The lawyer is willing to loan it to you. Whether he or she violates ethics rules is really none of your concern.

June 11, 2010

Number of Tennessee Medical Malpractice Trials

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

How many medical malpractice trials are there per year in Tennessee?

The Tennessee Jury Verdict Reporter gathers this data. For the 12-month period ending November 30, 2009, there were 32 medical malpractice trials in the state of Tennessee. The patient won nine cases and the health care providers won 23.

Davidson County (Nashville) had seven of those trials. Shelby County (Memphis) had five. In each county the providers won one more case than the patients.

June 10, 2010

How Does A Jury Know What The Law Is?

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

How does a jury know what the law is?

The judge tells the jury what the law is. The judge does this twice – once at the beginning of the case and once at the end of the case. The jury is told that it is its job to determine the facts based on the law given to them by the judge.

To see how jury instructions fit into the entire trial picture, read our Legal Guide called “Understanding What Happens At Trial of Personal Injury and Wrongful Death Cases in Tennessee.”

June 7, 2010

Negligent Transmission of Herpes

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

My wife gave me herpes. She did not have herpes when we got married. She confessed that she has been sleeping around. We are getting divorced. Can I sue her for giving me herpes?

Yes. A person can sue another for negligent (or intentional) transmission of a sexual disease. If you prove that you contracted the disease from her, you can recover damages for your medical expenses, future medical costs, and pain, suffering and loss of enjoyment of life.

One practical problem with this type of lawsuit is that any money you win can only be collected out of your wife’s assets and future income. If she doesn’t have any money and won’t be making much in the future you will have difficulty collecting any money from her. In addition, filing this type of suit can greatly increase tension in the divorce proceeding and, if children are involved, may impact your relationship with your wife as the two of you work to parent your children. These factors and others need to be considered before filing this type of lawsuit.

June 2, 2010

Why Does My Opponent Get To See My Tax Records?

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

I am a plaintiff in a personal injury lawsuit. Why does my opponent get to see my tax records?

If you are claiming you lost income as a result of the injuries you received in the incident that gave rise to the lawsuit, the defendant has a right to determine if you lost the income you say you lost. One way of determining that is looking at your income tax records.

However, the fact that tax records may reveal whether you lost income that does not mean that your entire tax return can be seen by the defendant. Tax returns contain lots of information other than income, and that information has nothing to do with whether you lost income.

An experienced personal injury lawyer will determine whether it is appropriate to release your entire tax return to the defendant or whether only some portions of it (such as your W-2, which is a statement of income from your employer) is appropriate.