Dan Berexa's Tennessee Law Blog

Who Should Foot the Bill for Litigation? The Loser?

A recent Wall Street Journal article asks whether the US should adopt the "English rule" which requires the loser to pay the prevailing party's legal fees and costs. According to a report cited in  The Debate Over Who Pays Fees When Litigants Mount Attacks, the US tort system costs about 2.2% of the gross domestic product.

The common argument is that a "loser pays" system discourages the filing of frivolous cases. US courts do have mechanisms for taxing a party with their opponent's legal fees and cost if a case is frivolous. However, the threshold to have a case deemed "frivolous" for the purpose of fee shifting can be very difficult to cross. Certain claims, such as civil rights actions, Fair Debt Collection Practices Act claims and consumer protection cases do permit an award of attorneys fees to the prevailing plaintiff. However, some argue that the fee shifting provisions actually encourage litigation. They contend that attorneys will take on cases where the plaintiff's damages are nominal, but there is a chance to recover fees grossly disproportionate to the value of the underlying claim. In fact, some of the fee shifting provisions were enacted for the purpose of encouraging the filing of cases that would not otherwise be filed absent fee shifting.

One interesting aspect of many of the systems that follow the "English rule" is that litigants often have access to insurance which covers the costs of litigation, including an opponent's fees and expenses, if the insured ends up losing the case. Arguably the availability of insurance reduces the deterrent effect of a loser pays system. Various forms of this insurance are available in Canada, the U.K. and Germany.  

No doubt the debate the debate over tort reform and the adoption of a "loser pays" system will continue. A major change in the status quo is unlikely. See Dan Slater's WSJ Law Blog for further commentary on the issue.

Dan Berexa
Nashville, Tennessee

In 2008 the Tennessee Supreme Court Opened the Door to a Type of Negligent Infliction of Emotional Distress Claim Not Previously Allowed

In 2008 the Tennessee Supreme Court released two significant opinions relating to "stand alone" claims for negligent infliction of emotional distress. One of the decisions is likely to lead to an increase in the number of negligent infliction of emotional distress claims, and a greater reluctance of judges to dismiss such claims prior to trial. Both decisions address instances where the emotional distress resulted from someone being seriously injured, or killed, and the claimant witnessing the injury-producing incident, or coming upon the scene shortly after the incident occurred. These are known as "stand alone" claims since the alleged emotional injury is not a product of direct bodily injury to the claimant.

Attorneys are Using Blogs for Research According to Tennessee Attorneys Memo

The lead article in the December 22, 2008 edition of the Tennessee Attorneys Memo (Vol. 33, No 51) is  "Use of Blogs by Attorneys as Research Tool." (subscription required for full text). The article begins with the statement: "As technology continues to advance and alter the practice of law, one of the Internet’s first offspring, the blog, is rapidly becoming a new research tool for attorneys." The piece discusses the pros, cons and issues associated with using blogs for legal research.

Dan Berexa
Nashville, Tennessee 

The Recession and its Impact on Juries and their Verdicts.

Times are tough on the economic front. Consumer confidence, 401(k)'s, the Dow and home prices are down. Unemployment, bankruptcy, foreclosures and anxiety are up. Former engines of the U.S. economy have collapsed while others, like Chrysler, are on the verge of failure. The banking system nearly collapsed. Major layoffs are daily news. Even people and companies that are still in good shape have a completely different outlook on the economy, the stability of our institutions and the ability of our government to help resolve the crisis. Conspicuous consumption is out of vogue and cash is king.

How does a bleak economic picture impact jury verdicts? Will jurors become more conservative? Does a case in today's economy have the same value it would have had if it went to trial 18 months ago? Will jurors moderate verdict amounts, or be more likely to find in a certain way if they believe (right or wrong) that their verdict could put a company out of business and more people out of work? A jury that may have been willing to hit Chrysler with tens (or hundreds) of millions of dollars in punitive damages a few years ago might not want to render the verdict that they feel could literally break the company and do further damage to the economy. Some parties who are perceived to be a cause (or beneficiary) of the current economic climate might receive more hostile treatment in the jury room than another who is viewed as a victim?  

Jurors don't ignore what is going on in the world, or their own lives, when they start to form impressions while considering evidence. The outside world also makes its way into the jury room during deliberations. We know that from post trial juror interviews and watching mock trial deliberations. Major events effect us all and often alter our outlook. Other than the Iraq war, and the Virginia Tech massacre, probably the last major national trauma that touched every American, as the current economic situation has, was 9/11. While the causes are dissimilar, and the damage different, the magnitude of the effect is similar and cannot be ignored. 

Ronald Miller of the Maryland Law Blog has asked the question: How will the recession impact jury verdicts? It is a good question. Another question that trial lawyers should also consider is whether they should approach some aspects of a trial a little differently given the current economic situation and prevailing climate?     

Dan Berexa
Nashville, Tennessee

Politics and Jurors Part II (Democrats v. Republicans) - An All Republican Jury Will Never Award Punitives! Will They?

Patricia McEvoy, Ph. D. is one of the authors of What Does a Juror's Generation Mean to Trial Consultants?, the article discussed in my November 24 post regarding research linking generation and political leaning to attitudes and damages awards. Thanks to Pat for putting me in touch with her colleague Alan M. Tuerkheimer, who authored Politics in Civil Jury Selection, an article just published in the December issue of the Wisconsin Lawyer. One of the take-aways:

"The Zagnoli study found that while political leaning tends to correlate with what jurors say about damages in civil cases, it does not predict whether or how much they actually award. In other words, political leaning is related to what a juror says but not necessarily to what a juror does; thus, political party allegiance should not be too heavily relied on during jury selection."

See what else the study of 476 mock jurors revealed about political leaning and whether it predicts juror behavior. You might be surprised.

Dan Berexa
Nashville, Tennessee

Prof. Paine's "The Ten Commandments of Direct Examination"

This time of the year I try to do a little tidying-up. In the process found a March 2000 issue of the Tennessee Bar Journal that I kept because the cover article was Don Paine's  The Ten Commandments of Direct Examination. This is a great read for and trial lawyers and law students. It compliments Irving Younger's Ten Commandments of Cross-Examination, which I know is still very popular, because I get a lot of hits on my post Revisit a Classic - Irving Younger's "The Ten Commandments of Cross-Examination"

For those of you who have never had the pleasure, Professor Donald F. Paine has taught (and entertained) generations of law students, lawyers and judges. A more gifted teacher - I have never seen. 

Dan Berexa
Nashville, Tennessee