Tennessee Injury Law Center

August 11, 2010

Are Settlement Proposals Disclosed to the Jury?

We offered to settle my car wreck case for $40,000. The insurance company for the guy that caused the wreck only offered $22,000. Will the jury be told about what I was willing to take in settlement before trial? Will they be told that I was offered $22,000?

No. Absent extraordinary circumstances, settlement offers from either party are not admissible at a later trial. The purpose of this rule is to encourage people to engage in settlement discussions, and thus usually the proposals made by one side or the other are not admissible in a later trial.

Of course, there are certain exceptions to this general rule but I must say that they are quite rare. An experienced personal injury lawyer can explain whether any exception to the rule is applicable in your case.

August 10, 2010

Why Juries Are Not Told About Liability Insurance?

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

I was in a car wreck and it doesn’t look like we will be able to reach a settlement – the other driver’s insurance company does not want to pay me a fair amount to settle the case. Will the judge and jury know that the other driver has insurance?

No. They may assume that the other driver has insurance, but they will not know he or she has insurance. Absent extraordinary circumstances neither you, your lawyer, nor any of your witnesses can mention that the other driver has insurance.

Why? Because the presence or absence of insurance should not influence the jury’s decision. A person is responsible for the harm they cause. Smart people who can afford it buy insurance to protect themselves from the financial consequences of making a error that hurts someone. But the law does not permit the jury to be told – one way or the other – about insurance because technically it should have no impact on the value of the case.

August 9, 2010

The Other Driver Doesn’t Have Enough Insurance!

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

I was in a bad car wreck. I had $50,000 in medical bills and missed eight weeks of work (I make $800 per week as a mechanic). I am probably going to have to have another surgery. My doctor also says I will have arthritis for the rest of my life. I just found out that the person who hit me only has $100,000 of liability insurance. That is not enough for what he did to me. Can I force the person who caused the wreck to pay me out of his pocket?

A person or company is always liable for all of the harm they negligently cause. A person purchases insurance to reduce his or her own risk of coming out of pocket to pay for that harm, but if the harm caused exceeds the amount of insurance purchased he or she is liable for the rest.

The problem, of course, is collecting from a person who causes harm. To make a payment to the injured person over and above the amount of insurance the person who causes harm must have assets, income, or both. Many people have very few assets and insufficient income to make a payment to the person who they hurt. If pressed, these people will often just file bankruptcy and the bankruptcy court will discharge the obligation. (There are some exceptions to this. For example, the bankruptcy court will not discharge the lawsuit-related obligation of a drunk driver or a person who intentionally harms another.)

August 8, 2010

Can A Father Who Did Not Pay Child Support Recover Money When His Child Gets Killed in A Car 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 father, who never paid child support as ordered by the court and did not visit my son for the for the five year period after our divorce, says he is going to file a lawsuit, too. Can he do that? Does Tennessee law permit him to get money from the death of our son when he 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 father’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 father intentionally did not pay for at least 2 years; and (c) he intentionally did not visit the child.

August 7, 2010

How Much Do Expert Witnesses Charge?

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

I am in a car wreck case. My lawyer says that we need to hire an accident reconstructionist. What will that cost?

First, most lawyers in personal injury and wrongful death cases will advance the expenses associated with the case, including the cost of hiring expert witnesses. Usually, those expenses are re-paid by the client after the successful prosecution of the case out of the settlement monies.

Second, the cost of an expert accident reconstructionist can vary substantially, from $100 per hour to $400 or even $500 per hour. These experts usually charge for travel time. The expert I frequently use charges about $3000 for the initial work-up at the scene of the accident, and additional monies for what must be done at the office.

August 6, 2010

What Does a Court Reporter Do?

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

I had to testify in court recently and there was someone there typing in a little machine, apparently writing everything down. My lawyer says that he was a court reporter. That looks like a fun job. What else do they do?

In Tennessee court reporters record and prepare transcripts of depositions, hearings and trials. Unlike some states, court reporters in civil cases are hired by the people involved in the litigation, and are not employees of the State of Tennessee or any local government.

Court reporters also may record and prepare transcripts for witness statements, corporate meetings, and other gatherings of people.

August 5, 2010

My Lawyer Missed the Deadline to File My Lawsuit. What Do I Do?

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

I was hurt in a car wreck in Nashville last year. I hired a lawyer two months after the wreck. He called me last week, and told me he forgot to file my lawsuit on time. He said he filed it late and hopes that the other side won’t say anything but that if they figure it out my case will be dismissed. What do I do now?

Your lawyer did the right thing by telling you that he made an error. The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer. To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time. You will also need to prove that more likely than not you would have won the underlying case (the care wreck case). Lawyers refer to this second case as "the case within the case."

August 4, 2010

What Are Requests for Production of Documents?

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

I am in a lawsuit and the other side wants me to give them documents. I don’t want to share my evidence with them. Can they make me turn over my documents before trial?

Yes. The Tennessee Rules of Civil Procedure have a special rule (Rule 34) that permits one side in litigation to ask the other side for documents that are "reasonably calculated to lead to the discovery of admissible evidence." Practically, this means that one side to a lawsuit can ask the other side for anything reasonably related to the case.

If you don’t turn over requested information, you risk being sanctioned by the court. If you fail to turn over information that is helpful to you and you later try to use that document at trial, the judge can exclude it from evidence as if it never existed. Finally, it is possible that for a judge to dismiss your lawsuit (or order that the other side wins) if he or she finds that your failure to produce requested documents was willful.

August 3, 2010

Why Do I Have to Repay My Health Insurance Company Out of My Personal Injury Settlement?

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

I just settled my personal injury case and my lawyer tells me I have to repay my health insurance company for paying my medical bills. I have paid health insurance premiums for 25 years and was never in the hospital one time before my wreck! Why do they have the right to get repaid?

Because the insurance policy you have almost certainly says that they have the right to be repaid. That is part of the bargain you struck with them – even though you never read your policy and no agent or representative of your employer mentioned it to you.

Depending on the type of health insurance you have there are several arguments that can be made to secure a reduction in the amount that must be paid back to the insurer. An experienced personal injury attorney will know this area of the law and will work with you to secure a reduction in possible.

July 31, 2010

Death of Brother

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

My brother died in a wreck after his car was hit by a tractor-trailer. He is unmarried and has no children. Can I file a lawsuit?

Yes, if you are named the executor in his will or you apply to the court and get named as the administrator of his estate.

The damages you recover in the case will go to your parents if they are still alive. If they are not alive, the damages would be divided equally between your siblings.