Tennessee Injury Law Center

August 15, 2010

Will My Case Go to Trial?

I was hurt when I was swimming and got run over by a jet ski. I have filed a lawsuit but am scared to death about going to trial. Will there be a trial?

Now days, most cases do not go to trial.

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

August 15, 2010

Operating a Boat While Intoxicated

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

An idiot in a jet boat hit my jet ski last weekend. I received a broken leg as a result. The TWRA officer said that the driver of the jet boat was going to have to submit to a test to see if he was under the influence of alcohol. Can he be charged with drunk driving a boat?

Yes, if his blood level of alcohol is .08% or more. Under Tennessee law, blood-alcohol content may be taken from all vessel operators involved in an accident where death or serious injury occurred. Failure to consent to testing is a separate offense and may result in suspension of vessel operating privileges for six months.

Conviction for operating a vessel under the influence of alcohol will result in fines of up to $2,500 on the first offense, $2,500 on the second offense and $5,000 for the third offense. A jail sentence of 11 months and 29 days may also be imposed for any conviction and operating privileges may be suspended from one to ten years.

August 13, 2010

Can Police Accident Reports Be Used as Evidence of How the Wreck Occurred at Trial?

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

The police accident report says that I was not at fault in my wreck and that the other driver was at fault. Can I used the police report as evidence at a trial to prove the wreck was not my fault?

Not in Tennessee state court. A rule of evidence specifically excludes police accident reports from the types of public records that can be admitted into evidence at trial to show how an accident occurred.

Why? Because unless the officer actually saw the accident the police report is only the officer’s opinion about what happened. That opinion may be based on solely on whether the officer believes one person or the other and may have little value in determining what actually happened.

August 12, 2010

What is Mediation?

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

I have a personal injury case in Tennessee. The judge has ordered the case to mediation. What does that mean?

Mediation is a process where a person who has no stake in the outcome of the case (the "mediator") helps the parties to the litigation try to resolve their differences. Mediation has increased greatly in Tennessee in the last twenty years.

I had the honor of being appointed by the Tennessee Supreme Court to a commission that drafted the original court rule concerning mediation and other forms of alternative dispute resolution. I served on that commission about twenty years ago.

August 11, 2010

Are Settlement Proposals Disclosed to the Jury?

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

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.