Litigation Process

December 15, 2015

Make Me A Witness

A few weeks ago, I received a voicemail from a lawyer indicating he would like me to be a witness in a case and wanted to talk to me about my recollections surrounding the event at issue. I will confess my response was to cringe a little. As a trial lawyer, I am intimately familiar with the litigation process so nervousness about the process, etc. was not the issue as it understandably is with some who get a subpoena. Instead, my cringing had more to do with the time involved in being a witness and getting involved in a conflict with folks that I happen to know. But once the cringe moment passed, I realized this was an opportunity similar to the one I received when I was called for jury duty. It was an opportunity for me to be reminded of what it is like to be a part of litigation in a role other than as a lawyer.

So I thought it might be helpful to write a few posts about the overall process of being a witness in hopes it might be helpful to others in the same situation. Let’s start with the cardinal rule: any trial lawyer worth his or her salt does not want you to testify at a trial without knowing what you intend to say. So that only leaves a few options. Continue reading

September 23, 2015

I Signed A Sports/Liability Waiver for My Kid. Is It Valid?

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

Whether your kid is involved in softball, baseball, basketball, gymnastics, soccer, football, cheerleading or other type of sport, the registration process almost certainly included a sports or liability waiver. Typically, the parent or guardian is asked to release the organization, coaches, etc. from any claims arising from their child’s participation. And, because the waivers are presented as a take-it or leave-it, negotiation is not an option. So, you sign it. And then, the worst happens: your child gets injured. What do you do next? Continue reading

August 27, 2015

Five Things You Can Do To Improve Your Credibility in Litigation and in Life

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

I have been following the prep school rape trial involving Owen Labrie. Mr. Labrie stands accused of raping a 15 year-old girl as part of a ritual known as Senior Salute at St Paul’s School. Mr. Labrie claims he had consensual sexual contact with the accuser but denies having sexual intercourse. The accuser claims she twice told Mr. Labrie “no” but he persisted and ultimately raped her.

Throughout the trial, and especially in closing arguments, the credibility of the accused and accuser were front and center. While there was some other evidence including texts, Facebook messages, lists of girls Mr. Labrie was pursuing, etc., the reality is, like so many cases, this trial is largely a “he said” v. “she said”. In litigation, as in life, there are some key things you can do to maintain your credibility. So here are 5 crediblity boosters for life and litgation. Continue reading

August 25, 2015

Pina Coladas and Ashley Madison

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

Remember the old song? Escape by Rupert Holmes. The guy is lounging in bed with his significant other and reading the personal columns. He notices one that catches his eye and, because he is in a rut in his relationship, he responds. A meeting is set up, and when he shows up at the appointed time, it turns out that it was his girlfriend who he intended to cheat on had actually placed the ad. She appears at the rendezvous not knowing it was her lover who had responded and is equally, but happily, surprised: “they laugh for a moment and I said I never knew that you like Pina coladas and getting caught in the rain . . .” A happy ending; all is well.

Today, most folks looking to cheat in their relationship apparently don’t use the personal columns but instead 32 million of them turned to Ashley Madison. And after the hack of the company’s website, spouses around the globe are checking to see if their spouse was a user of the site. Doubtful there will be any happy endings. In fact, divorce lawyers are seeing an uptick in business. Continue reading

August 10, 2015

Just Telling It Like It Is

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

Recently, we were contacted by a woman who had sustained a broken elbow in an accident. She called our office and we reviewed her accident and her legal options with her. Given the circumstances of her accident, we told her we did not think we would be able to help her. But, we gave her some advice on what she could do to, at least, get the company to pay her medical bills. We later heard back from this woman who expressed her gratitude for us spending the time to talk to her and helping her find a way to get reimbursed for her medical bills. She ended her email by saying we had reshaped her opinion of personal injury lawyers.

Personal injury lawyers do get a bad name as ambulance chasers, sharks, etc. And to a large extent, some of our brethren have brought this on through a variety of practices including taking on too many cases causing them to neglect clients, airing tacky commercials with such catchy phrases as: “turn your wreck into a check”, unethically pursuing injury victims, etc. I could go on but I think you know the conduct to which I am referring. Continue reading

June 18, 2015

Subrogation: The Injury Victim’s Boogie Man

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

First, allow me to use an example to explain subrogation: You are hurt in an accident. You go to the emergency room, are admitted to the hospital for several weeks and then have a few months of follow-up appointments and physical therapy. After deductibles and co-pays, your health insurance company pays all of your medical bills. After you recover from the accident, you settle your injury case with the at-fault party’s insurance company. Using the money you got from your settlement, you buy your first home. Several months later, you get a letter from your medical insurance carrier demanding to be paid back for the medical bills they paid on your behalf after the accident. You no longer have the cash because you bought a home, but they are threatening to sue you.

Can they do that? What about if you are on Medicare or Tenncare? Isn’t that why you paid the premiums for your medical insurance? If they sue me, could they take my house or garnish my wages? What if I never tell them about my accident? Continue reading

May 27, 2015

Tennessee Trial Stats: How Many Injury and Death Cases Were Filed, Who Won and How Much Did They Get?

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

According to the Administrative Office of the Courts data, for the 2013-2014 reporting year, there were 10,232 tort cases filed in the State of Tennessee. (Tort cases are claims for injury or death and include medical malpractice or healthcare liability claims.) During that same time frame, 10,322 cases were concluded in some fashion such as dismissal, settlement or trial. However, very few were concluded by way of a trial. In fact, only 416 cases or 4% of tort or healthcare liability cases were tried in the entire State of Tennessee last year. So what kind of verdicts were returned in these 416 cases? Continue reading

May 21, 2015

How Do I Win My Accident Case At Trial?

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

Not surprisingly, every accident victim whose case goes to trial wants to know the answer to this question. Of course, victory at trial depends upon a number of factors including the facts of your case, your lawyer, the opposing lawyer, the judge, the jury pool, etc. Below we will examine each of these in a little more detail and how you can help your case: Continue reading

May 8, 2015

Facebook: So Many Ways To Get In Trouble

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

Last month, a judge was publicly admonished by the Texas Commission on Judicial Conduct because she posted comments on Facebook about a trial she was presiding over. Then, earlier this month, a Michigan prosecutor lost her job due to statements she posted on Facebook related to the looting in Baltimore. And for accident victims, Facebook is just as dangerous.

As soon as an accident victim makes a claim, a claims adjuster or a defense lawyer will likely try to find the person on Facebook to glean as much information as they can. And if your Facebook posts are not consistent with the allegations of your lawsuit, then they start doing a happy dance. Let me give you some examples of how Facebook can be used against an accident victim. Continue reading

March 11, 2015

Day Inducted as Fellow of the International Society of Barristers

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

This week, the International Society of Barristers (ISOB) inducted John Day as a fellow. The ISOB is dedicated to preservation of the adversary system, the right to jury trial and an independent judiciary. Membership is by invitation only and includes a rigorous screening process involving both judges and fellow lawyers. The ISOB extends membership to those lawyers “of exceptional talent, whose qualities including integrity, honor and collegiality embody the spirit of the true professional”. Of course, those of us at The Law Offices of John Day, P.C. have always known that John possesses these traits but we are certainly pleased that the prestigious ISOB has recognized it as well. Congratulations, John!