Articles Posted in Litigation Process

A scheduling order is a pretrial order that governs the progress of a case as it proceeds toward a trial. 

A scheduling order provides deadlines for taking depositions, conducting written discovery, identifying and deposing expert witnesses, filing certain types of motions, and other deadlines appropriate to the case.  It may also set a trial date.  Rule 16 of the Tennessee Rules of Civil Procedure gives the court a right to impose a scheduling order.

The lawyers for the parties in the case can agree on a scheduling order or the court may impose a scheduling order.  In Tennessee, a scheduling order can be changed if a party shows good cause for doing so.

A structured settlement is an agreement reached between a plaintiff (the person who files a lawsuit) and the insurance company for the defendant (the person or company that is sued) to pay a personal injury or wrongful death settlement to the plaintiff over time rather than paying the money in a lump sum.  

Such settlements can be structured to pay out the money over any period of time, from a year to a lifetime.  The payments can be a combination of monthly payments and "bonus" payments every five years.  There is virtually no limit as to how payments can be structured; the financial and other needs of the individual determine how a structured settlement will work.

Every structured settlement includes the payment of interest, and this interest is tax-free assuming that the appropriate rules are followed.  

Unlike Kentucky, Tennessee does not have a law that permits each patient to have a free copy of his or her medical record from a health care provider.  Tennessee law permits health care providers to charge for each and every copy of a medical record.

It is important to have a copy of certain medical records to evaluate every personal injury and wrongful death claim, including car and truck accident cases and each and other cases.  The number of providers from whom records must be obtained depends on the facts and circumstances of each case.  Some cases require us to obtain medical records from only one or tow health care providers.  Other cases require us to obtain records from ten or more health care providers.  The cost of obtaining records can be as little as $75 to well over $1000.

Our firm pays for the cost of acquiring the medical records for our clients. Even the event the case is successful, our fee agreement with our client provides that our client reimburses us for the out-of-pocket expenses we incur in the case, including the cost of obtaining medical records.

A subpoena is a court order requiring a person to appear in court to give testimony, produce documents or things, or both.

Subpoenas are issued by the clerk of the court in which the case is pending.  In Nashville and Davidson County, Tennessee, there is a $6.00 fee to issue a subpoena.  if the witness lives in Davidson County and the lawsuit is pending in Davidson County, the Davidson County Sheriff’s office will serve the subpoena for $9.00.

Different charges apply if the witness must be served in a different county.  The Clerk of Court will answer questions about the charges in such cases.

A jury is considered "deadlocked" when it is unable to reach an unanimous decision.  In Tennessee personal injury and wrongful death trials a jury of twelve people sits in judgment of the case and all twelve must agree on all issues.  When they fail to do so they are "deadlocked."

A judge faced with a deadlocked jury has two choices.  First, the judge can send the jury home, declare a mistrial, and order the parties to another trial.  This is an expensive option, both for the parties to the lawsuit and the justice system, because of the money that will be spent on the new trial.

The other option is for the judge to give what is known as a "dynamite" or "Allen" charge.  A dynamite or Allen charge is a jury instruction that strongly encourages each juror to reconsider his or her views and work toward compromise.  It tells jurors that a new trial will be very costly to the parties and that the jurors should work harder to solve their differences.

Tennessee law requires juries of twelve citizens in injury trials and in all other types of civil and criminal jury trials.  Rarely, the lawyers in the case will agree that the case can be decided by less than twelve people, but a very, very high percentage of jury trials in Tennessee are decided by twelve jurors.  A judge cannot require that a case is decided by less than twelve jurors.

Depending on the anticipated length and complexity of the trial, a judge may also have one or more alternate jurors hear the case.  An alternate juror will replace one of the twelve jurors who have been designated to hear the case if one of those jurors becomes ill or for some other reason cannot continue serving as a juror in the case. If none of the group of twelve jurors is required to leave jury service for any reason the alternate jurors are dismissed from the case immediately before the jury begins to deliberate a verdict in the case.  No more than twelve jurors are permitted to decide the case.

In Tennessee a jury’s verdict must be unanimous.  In other words, all twelve jurors must agree on the result.  If the jurors are unable to reach an unanimous agreement, a mistrial is declared and the case must be tried to another jury at a later date.

A deposition is an out-of-court sworn statement made during a lawsuit.  Typically, the lawyer representing the opposing party to a lawsuit will take your deposition to understand information you have about the case.  Witnesses to events giving rise to the case may also be asked to give a deposition.

A deposition usually takes place in a conference room at the offices of one of the lawyers that is involved in the case.  A person called a "court reporter" is present to administer the oath and to record the testimony.  It is possible that the deposition will be recorded by a videographer.

Under Tennessee law, a person who is involved in a lawsuit can be asked to provide information that is "reasonably calculated to lead to admissible evidence in the case."  That means that if you file a lawsuit or are sued in a lawsuit you can be asked questions that directly involve the facts of the case and also questions that may lead to information that might find its way to evidence at trial.

At the end of every Tennessee injury trial heard by jury the judge gives the jury instructions about the law applicable to the case.  Some judges prepare their own instructions; other judges ask the lawyers involved in the case to prepare the instructions.  Even if the judge does his or her own instructions the lawyers have the right to propose additional or alternative instructions to the judge, who reviews the proposed  instructions and determines whether they will be included in the final set of jury instructions.

Jury instructions tell the jury the law applicable to the case.  The jury uses the instructions to guide it in finding the facts.  Jurors are the "judges" of the facts in a case, and then take those facts and apply it to the law given to them by the judge.

Sometimes judges make mistakes in jury instructions.  If a judge makes a mistake, an appeal may result.  A mistake in the jury instructions can result in a new trial if the appellate court determines that the mistake affected the outcome of the trial.

Most contingent fee contracts between Tennessee injury lawyers and their clients have a provision that provides that the lawyer is reimbursed for travel expenses.  Such a clause in a contract is lawful, and will be enforced by a court.

However, if the contract does not have a clause that permits reimbursement for expenses,  it would not be appropriate for the lawyer to charge his or her client for these expenses unless he or she gets your express approval, preferably in writing, to incur those expenses that will ultimately charged to the client.

Are there limits to the amount of expenses that a lawyer can charge?  Yes, even if the fee contract does not put limits on the amount  of travel charges that the lawyer can pass on to a client the law will require that only "reasonable" expenses can be incurred.