Memphis Injury Lawyer Blog

Yesterday, a Memphis man was mauled to death by two pit bull dogs. This is not the first time that this has happened in Shelby County. Before I condemn this breed or other breeds of dogs, I reflected back on a prior blog article.

In 2008, a North Memphis family reported that a neighbor's two pit bulls entered their home and attacked them. Memphis has seen her citizens mauled to death by pit bulls in the past. As a trial lawyer who regularly practices in all Shelby County courts, I have seen my clients injured by dogs on occasion. However, as a dog lover myself and a Tennessee resident, I wondered whether or not some breeds of dogs were more likely than others to attack Memphis residents.

For example, in 1990 Betty Lou Stidham was attacked and mauled to death by two pit bulls in a quiet Memphis neighborhood. In this case, the dogs had a history of violent tendencies. They had previously attacked their owner sending him to the Emergency Room of a local hospital for treatment of his injuries.

Jefferey J. Sachs, M.D., MPH for the United States Centers for Disease Control studied various breeds that had injured or killed people. In Sachs' article, he analyzed many breeds of dogs that had attacked people over an extended period of time. This article is best summarized by a Chart of Bites by breed that is a part of the results of the study. As you can see, far and away the most dangerous breed was the pit bull. For example, animal control officers must approach this breed with the following event in mind:

In response to these kinds of situations, the Tennessee Legislature in 2007 amended the existing laws respecting animals that are likely to cause harm to others. Under T.C.A. 44-8-413, new standards were set with an eye towards protecting persons and property from the dangers we have seen above. The law requires owners to keep their animals under "reasonable control" and to prevent them from "running at large". The most interesting feature for lawyers, and perhaps the injured, is that the owner can be liable even if the dog has never shown violent or dangerous characteristics prior to the event in question. This new act may well protect a valuable asset: our peace of mind and our future safety.

Sadly, the more things change, it seems, the more that things stay the same.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Car And Personal Injuries

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Memphis legal professionals are called upon to deal with lovers and spouses injuring, wounding and sometimes killing one another on a regular basis. Choose Respect, a national youth-based initiative from the Department of Health and Human Services Centers for Disease Control and Prevention, recently released findings that said “about one in 11 teens report being a victim of physical dating abuse each year.” The overall occurrence of dating violence was noted as being more frequent among Black (13.9 percent) and Hispanic (9.3 percent) teens than their White peers (7.0 percent).

According to the Bureau of Justice Statistics, intimate partner murders happen with astounding frequency:
• Fatal intimate partner violence includes homicide or murder and non-negligent manslaughter,defined as the willful killing of one human being by another.
• In 2007 intimate partners committed 14% of all homicides in the U.S. The total estimated number of intimate partner homicide victims in 2007 was 2,340, including 1,640 females and 700 males.

While these figures are frightening, the numbers of those hurt or maimed are far more profound:
• Intimate partner violence includes victimization committed by spouses or exspouses,boyfriends or girlfriends, and ex-boyfriends or ex-girlfriends.
• In 2008 females age 12 or older experienced about 552,000 nonfatal violent victimizations (rape/sexual assault, robbery, or aggravated or simple assault) by an intimate partner (a current or former spouse, boyfriend or girlfriend) (table 1).
• In the same year, men experienced 101,000 nonfatal violent victimizations by an intimate partner.
• The rate of intimate partner victimizations for females was 4.3 victimizations per
1,000 females age 12 or older. The equivalent rate of intimate partner violence
against males was 0.8 victimizations per 1,000 males age 12 or older.

In order to address the practical and ethical duties of attorneys who deal with these issues, the American Bar Association has established aspirational guidelines to assist both the Bench and Bar. ABA Guidelines. Never the less, The practical implications for victims and accused persons continue to confound an already overloaded criminal justice system. In my experience, swift protection can often be delayed or denied due to internal operating procedures. Having said that, there remain alternatives to being an unprotected victim, thereby exposing you and your children to the horrors of family directed violence.

Help with getting protective orders to protect both you and your children:
Citizen's Dispute
901-545-2520

For a safe place to stay
YWCA Abused Women's Service
901-725-5861

YWCA Crisis Line
901-725-4277

Help for victims and their children
Victim's Assistance Center
901-545-4357

Exchange Club
901-276-2200

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Crime and Punishment , Divorce, Support And Custody , Trial Practice

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Whether nor not we Tennesseans agree with the spate of new laws which have recently gone into effect in Arizona, our state legislators have now added our state to the controversy. Previously, if a person was arrested for an offense, their immigration status has not been researched in depth by our jailers statewide. For example, in Chattanooga the documentation of inmates has been routinely referred to ICE (Immigration Customs Enforcement) for a check on whether or not the person is in the United States legally. As of July 1, 2010, this pattern will become mandatory for all jails throughout our state.

At the end of this legislative session, T.C.A., sec 40-7-123 was enacted. This new law requires all jailers to make a fax or other referral to ICE for any detainee whose documentation does not clearly establish that person's legal right to be in the United States.

§ 40-7-123. When a person is arrested for any offense and is confined, for any period, in the jail of the county or any municipality, a reasonable effort to review documents in the possession of the prisoner shall be made to assess the citizenship status of the person so confined. If the keeper of the jail or other officer cannot determine the lawful status of the prisoner from the documents in the possession of the prisoner or if it is determined that the person is not lawfully present in the United States, pursuant to the federal Immigration and Naturalization Act, compiled in 8 U.S.C. § 1101 et seq., the keeper of the jail or other officer shall notify the United States department of homeland security by facsimile transmission or other appropriate means.

One can only suppose that this new law will be evenly applied to all those detained. However, consider a scenario where a caucasian female who was born in, say, Bartlett is arrested without any identification showing that she is a U.S. citizen. Now think about the same set of facts for a physician born in Brazil who has dark skin.

The constitutional implications of this statute can and, I am sure will be, debated in the years to come. However, the question comes to my mind respecting the training that will be given to a jailer to carry out a "reasonable effort" to investigate such a person. Or, will this be another ill conceived law that results in a lawsuit which gains a life of its own. Most cases that get to the United States Supreme Court take years to arrive in Washington. Will this enforcement statute be any different?

I have found ICE agents to be over worked and under paid. Should we heap another job onto such an already burdened agency? But perhaps most importantly, will this become a safe harbor for abuse by a bored jailer on a hot Saturday night in the delta?

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Crime and Punishment

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When young love knows no bounds and overflowing passion clouds all reality, many of us become entangled in unforeseen future consequences: Unintended pregnancy, unexpected changes in living arrangements and never planned for debts. One of these latter obligations can arise from federally backed student loans. These loan programs are not limited to colleges and universities. Trade schools, cosmetology academies and similar institutions can have financial programs where a spouse or life partner can be asked to guarantee the repayment of such a student loan.

The first step where a spouse can first become co-obligated on such a loan is the Guaranteed Student Loan Application. Next come the Loan Documents themselves which may require a signature too. Sadly, the final stop on this financial freight train is the Marital Dissolution Agreement which comes at the tearful end of the marriage. Not only can this document free one from legal obligation to pay for a co-signed student loan, but it can also require a person to pay an agreed upon share of the student loan as well.

But there is a catch. A BIG catch. If you have already co-signed the student loan a Tennessee divorce court cannot remove you from legal responsibility for the loan. The most that such a court can do is to require your former spouse to pay the loan and to "hold you harmless" from the loan. This means that the student-spouse is required to timely pay the loan. But the lender can still seek the balance of the loan in full from the non-student if the payments are not made as agreed.

In the case that we dealt with today,the Husband missed several payments and the Lender sought repayment from the former Wife. Wife filed a contempt pf court action on the divorce court because former husband failed to "hold her harmless" by making timely payments. The Court ruled that former Husband could either satisfy the Lender and therefore hold Wife harmless or spend a few days as a guest of the county. Husband decided that he would find a way to get the payments made as he thought horizontal stripes did not become him.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Divorce, Support And Custody

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Reuters News Service today updates the report on the recall of over 40 different childrens' cold and flu preparations manufactured at the Fort Washington, Pa plant owned and operated by McNeil:

U.S. inspectors found thick dust and contaminated ingredients at the Johnson & Johnson plant that produces Children's Tylenol and dozens of other products that were recalled last week.

A Food and Drug Administration report released on Tuesday said its inspectors found thick dust and grime covering certain equipment, a hole in the ceiling and duct tape-covered pipes at the Fort Washington, Pennsylvania, facility that made 40 products recalled last Friday.

Inspectors also found raw ingredients contaminated by an unspecified bacteria, a lack of quality control procedures and poor handling of complaints, according to the report dated April 30.

The findings were a further blow to J&J's reputation, as the FDA later on Tuesday urged parents to choose private label alternatives for the over-the-counter medications and said it was weighing possible further regulatory action.

"Consumers should not use these products," Deborah Autor, director of the Office of Compliance at FDA's Center for Drug Evaluation and Research told reporters in a conference call, even though the chance of getting sick from the recalled products was "remote."

There were 46 consumer complaints about dark material in the liquid products between June 2009 and April 2010, according to the FDA report.

J&J, which has issued four major product recalls in the last year, said on Tuesday that the quality problems at the plant "are unacceptable to us" and that it would continue to work closely with the FDA to fix them.

The company has suspended production at the plant.

"We will not restart operations until we have taken the necessary corrective actions and can assure the quality of products made there," said a statement from J&J's McNeil Consumer Healthcare unit.

On Saturday, the FDA urged consumers to stop using liquid Tylenol, Motrin, Benadryl and Zyrtec for children and infants after a broad recall late on Friday.

Investors have largely shrugged off the recall as a minor financial concern for J&J, maker of a wide variety of devices, medicines and other consumer products. While the Tylenol brand is closely connected with its public image, it amounts to a tiny fraction of nearly $62 billion in annual sales.

"The latest recalls of children's Tylenol probably means there's just less upside to J&J's earnings estimates," said RBC Capital Markets analyst Glenn Novarro. "They can manage the expense side to make up for this. J&J just doesn't miss numbers."

But officials at the FDA, which has vowed closer industry oversight under the Obama administration, said the recall served as an example of companies' responsibility to ensure the quality of the products they make.

"While the potential for serious health problems is remote, Americans deserve medications that meet FDA standards for quality, safety and efficacy," FDA Commissioner Margaret Hamburg told reporters.

The FDA's report said inspectors found raw material used to manufacture several lots of Children's and Infant's Tylenol was contaminated with bacteria, but none of the finished drug product sampled tested positive.

Agency inspectors will complete a more detailed, narrative report for FDA officials to evaluate and determine if further action is needed, the FDA's Autor said. That could include sending a warning letter, seizing products, seeking a court order to halt manufacturing or pursuing criminal penalties.

J&J survived a massive recall of intentionally contaminated Tylenol products in the 1980s and its handling of the matter is widely studies as as a model business and public relations case.

Branding expert Robert Passikoff said so far the company has done everything right in handling the latest recall.

"There's no way to excuse it and J&J isn't. What they're looking to do is fix whatever the problems are," said Passikoff, head of Brand Keys Inc. Customers are loyal to the Tylenol brand "and that goes a long way."

For more specific information, the FDA has published a redacted version of its report. A specific problem taken directly from the FDA report states:

The Quality Control Unit (QA) authorities most responsible for overseeing daily operations at the Fort Washington facility did not ensure that the responsibilities of the Analytical, Microbiological, Compliance, and Quality Assurance departments were enforced for rejection and withholding from approval any raw material component that contained known contamination of gram negative organisms.

Let all buyers beware of this potential hazard to our children.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Dangerous Products , Personal Injury Prevention

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On May 2, 2010, the McNeil division of Johnson & Johnson voluntarily recalled 43 different OTC products due to "quality control issues. This innocuous sounding phrase covers a wide variety of problems which include:

Some of the products included in the recall may contain a higher concentration of active ingredient than is specified; others may contain inactive ingredients that may not meet internal testing requirements; and others may contain tiny particles.

The list of recalled products reads like a list of many parents' medicine chests for young children:

TYLENOL® INFANTS’ DROPS CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. GRAPE FLAVOR

50580-144-01
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE FLAVOR*

50580-144-15
CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. CHERRY DYE FREE

50580-167-01
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. CHERRY FLAVOR

50580-143-15
CONCENTRATED TYLENOL® INFANTS’ DROPS 1 OZ. CHERRY FLAVOR

50580-143-30
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE - HOSPITAL

50580-144-18
CONCENTRATED TYLENOL® INFANTS’ DROPS 0.25 OZ. GRAPE - SAMPLE

50580-144-40

CHILDREN’S TYLENOL® SUSPENSIONS
CHILDREN’S TYLENOL® SUSPENSION 2 OZ. CHERRY BLAST FLAVOR

50580-123-02
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. CHERRY BLAST FLAVOR

50580-123-04
CHILDREN’S TYLENOL® DYE-FREE SUSPENSION 4 OZ. CHERRY FLAVOR

50580-166-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. GRAPE SPLASH

50580-296-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. BUBBLEGUM FLAVOR

50580-407-04
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. VERY BERRY STRAWBERRY FLAVOR

50580-493-04
CHILDREN’S TYLENOL® SUSPENSION 1 OZ. CHERRY BLAST FLAVOR – SAMPLE

50580-123-01
CHILDREN’S TYLENOL® SUSPENSION 4 OZ. CHERRY BLAST FLAVOR – HOSPITAL

50580-123-03

CHILDREN’S TYLENOL® PLUS SUSPENSIONS
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COUGH & SORE THROAT CHERRY FLAVOR

50580-247-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COUGH & RUNNY NOSE CHERRY FLAVOR

50580-249-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. COLD & STUFFY NOSE GRAPE FLAVOR

50580-253-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. COLD & COUGH GRAPE FLAVOR

50580-254-04
CHILDREN’S TYLENOL® PLUS DYE-FREE SUSPENSION 4 OZ. MULTI-SYMPTOM COLD GRAPE FLAVOR

50580-255-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. FLU BUBBLEGUM FLAVOR

50580-386-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COLD GRAPE FLAVOR

50580-387-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. COLD & ALLERGY BUBBLEGUM FLAVOR

50580-390-04
CHILDREN’S TYLENOL® PLUS SUSPENSION 4 OZ. MULTI-SYMPTOM COLD GRAPE FLAVOR

50580-391-04

MOTRIN® INFANTS’ DROPS
CONCENTRATED MOTRIN® INFANTS’ DROPS 1 OZ. BERRY DYE FREE

50580-198-01
CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY DYE FREE

50580-198-15
CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY FLAVOR*

50580-100-15

CHILDREN’S MOTRIN® SUSPENSIONS
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY DYE FREE

50580-184-04
CHILDREN’S MOTRIN® SUSPENSION 2 OZ. BERRY FLAVOR

50580-601-02
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY FLAVOR

50580-601-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. TROPICAL PUNCH FLAVOR

50580-215-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. GRAPE FLAVOR

50580-603-04
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BUBBLEGUM FLAVOR

50580-604-04
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. GRAPE SAMPLE

50580-603-01
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. BUBBLEGUM SAMPLE

50580-604-01
CHILDREN’S MOTRIN® SUSPENSION 1 OZ. BERRY SAMPLE

50580-601-01
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. BERRY HOSPITAL

50580-601-50
CHILDREN’S MOTRIN® SUSPENSION 4 OZ. COLD BERRY FLAVOR

50580-902-04

CHILDREN’S ZYRTEC® LIQUIDS IN BOTTLES
CHILDREN’S ZYRTEC® 4 OZ. BUBBLEGUM SYRUP

50580-721-04
CHILDREN’S ZYRTEC® DYE FREE 4 OZ. GRAPE SYRUP

50580-730-04
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 0.5 OZ. GRAPE

50580-730-15
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 0.5 OZ. BUBBLEGUM

50580-721-15
CHILDREN’S ZYRTEC® SUGAR-FREE DYE-FREE 2 X 4 OZ. BUBBLEGUM LIQUID

50580-721-08

CHILDREN'S BENADRYL® ALLERGY LIQUIDS IN BOTTLES
CHILDREN'S BENADRYL® ALLERGY 4 OZ. BUBBLEGUM FLAVORED LIQUID

50580-535-04

* CONCENTRATED TYLENOL® INFANTS’ DROPS 0.5 OZ. GRAPE FLAVOR is also included in JOHNSON'S ® Baby Relief Kit.

*CONCENTRATED MOTRIN® INFANTS’ DROPS 0.5 OZ. BERRY FLAVOR is also included in JOHNSON'S ® Baby Relief Kit

For a complete report, please go to the government website http://www.fda.gov/Safety/Recalls/ucm210443.htm. CAVEAT EMPTOR!

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Dangerous Products , Personal Injury Prevention

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The wail of emergency sirens has split the silence of the early evening air. Families try to go about their bedtime routines as thunder and lightning roar through Shelby County. Sleep is a rare commodity for parents and children alike. Similar to some nightmarish Christmas Eve where instead of images of sugar plums dancing in our heads, we see Elvira go swirling through the Kansas skies caught up in a funnel cloud.

This Spring has brought a frightening mix of wind and water to the Mid South. The result has been a life altering combination of personal injury, property damages and thoughts of steps to be taken to prevent these calamities in the future. The old saying is more true now than ever: every one complain about the weather but no one does anything about it. However, we can become better prepared to deal with the less than perfect storm.

The Federal Emergency Management Agency has may resources to help us not only deal with but to prepare for natural disasters. Floods happen. Hurricanes happen. Dams break. the list goes on and on. Please take a moment to review the link that is copied above and also please follow it for appropriate advice to fit your needs.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Personal Injury Prevention

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Let us suppose that a husband and wife have two homes. The big house is in Germantown and the little house is in Sardis. A disagreement erupts and wife moves into the house at Sardis while husband rents a house at Moon Lake, AR. Both parties still call the big house home with the eventual intent to return there but a suit for divorce is filed in Arkansas. The legal issue is which state has jurisdiction (legal authority) to grant the divorce?

Judicial power to grant a divorce is based on domicile. Tennessee courts have no divorce jurisdiction unless one of the parties is domiciled here. Residency under Tennessee Code Annotated 36-4-104 is treated as domicile. Domicile is defined as the place where a person has his principal home and place of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to travel.

A person may have two or more residences but only one domicile.Snodgrass v. Snodgrass A temporary residence in a state for the purpose of getting a divorce will not confer jurisdiction upon the courts of that state to render a decree for divorce that will be binding upon the courts of the state of actual residence of the party.
Domicile of choice is acquired by physical presence plus intent to remain.

The plaintiff wife may acquire a separate domicile by withdrawing from the defendant husband.If the plaintiff leaves because of the defendant's fault and takes the children or if the plaintiff is awarded custody, the domicile of the children will follow that of the plaintiff.

A domicile once acquired is not lost until a new one is established. If custody is awarded to one other than a parent, the domicile of a child will follow the person having custody. Based upon all of the above, even though both parties are physically absent from Tennessee, the only state with immediate jurisdiction to grant a divorce would be Tennessee. However, if by conduct and the passage of time the parties were to manifest a different "wayfarer intent" the result might differ.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Divorce, Support And Custody

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Res Ipsa Loquitor. This latin phrase translates to: the thing speaks for itself. With this in mind, please note the following data"

Studies in the early 1980’s showed that children in repeat divorces earned lower grades and their peers rated them as less pleasant to be around. (Andrew J. Cherlin, Marriage, Divorce, Remarriage –Harvard University Press 1981)

Teenagers in single-parent families and in blended families are three times more likely to need psychological help within a given year. (Peter Hill “Recent Advances in Selected Aspects of Adolescent Development” Journal of Child Psychology and Psychiatry 1993)

Compared to children from homes disrupted by death, children from divorced homes have more psychological problems. (Robert E. Emery, Marriage, Divorce and Children’s Adjustment” Sage Publications, 1988)

Children of divorce are at a greater risk to experience injury, asthma, headaches and speech defects than children whose parents have remained married. (Dawson, “Family Structure and Children’s Health and Well Being” National Health Interview Survey on Child Health, Journal of Marriage and the Family)

A study of children six years after a parental marriage breakup revealed that even after all that time, these children tended to be “lonely, unhappy, anxious and insecure. (Wallerstein “The Long-Term Effects of Divorce on Children” Journal of the American Academy of Child and Adolescent Psychiatry 1991)

People who come from broken homes are almost twice as likely to attempt suicide than those who do not come from broken homes. (Velez-Cohen, “Suicidal Behavior and Ideation in a Community Sample of Children” Journal of the American Academy of Child and Adolescent Psychiatry 1988)

Taking the above as the gospel truth, what can be done to ameliorate these problems? The answer is, I don't know. What I do know is that you can be a voice of support and reason for your kids during this impossibly difficult time. It takes courage, maturity and stability to follow the following rules. However, in my opinion, after over 30 years of handling these kinds of cases, the following concepts are a minimum plan to save your childrens' future:

1. Make sure your children understand that they are not the reason for the divorce. Keep the explanation simple, your mother and I can no longer live together happily. You need to know that this has nothing to do with you. Your mom and I both love you very much and nothing will change that.

2. Take care when discussing litigation. Your children do not need to know the sum and substance of all legal documents, depositions, and proceedings. If you and your spouse are unable to decide the issue of custody, you may wish to offer a simply explanation like a judge is going to decide the time you will spend with your mommy and daddy because we both love you very much and can't agree.

3. Allow the children to love both parents. Create an environment where the children can be free to love both parents. If you cringe or change the subject when your child brings up Daddy's name, you may be sending a message to your child that you do not approve of his or her relationship with your ex.

4. Do not send messages through your children. If you are unable to communicate by any means with your ex whether in-person, by phone, or e-mail, you may wish to consider co-parenting counseling or request a parent coordinator.

5. Do not say disparaging things about the other parent in front of the children. Judges will expect you to be supportive of the childrens' relationship with their other parent

6. Be supportive of your childrens' activities. If at all possible, take your children to their activities when it is your time. On the other hand, be respectful of the other parent's time with the children. It's difficult to look supportive of the other parent's relationship if you always schedule well-visits during the other parent's time.

7. Use good judgment before introducing your children to someone you are dating. Introducing your children to someone that you have just met or are just beginning to know can be confusing and even detrimental to your children.

8. Take the high road when possible. This may sound contrary to the advice you might expect from a divorce attorney. However, when it comes to things like schedule changes, sometimes it is better to give a little even if the favor isn't always returned. In the event the matter goes to court, it is always better to be perceived as the parent who is flexible and cooperative.

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Posted In: Divorce, Support And Custody

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Close your eyes and imagine an empty seat at the Thanksgiving table; your youngest child's graduation from college; walking all alone down the aisle at your wedding. Think how empty your bed would be each and every night from this day forward without your spouse, best friend and lover. Can you conceive the horror of telling your children that Mom or Dad is dead? How would you cope with mounting bills and the loss of an income stream?

That is the emotional side of a relatively emotionless process. In Tennessee, as in most states, a claim for the wrongful death of a spouse or child belongs to the survivor of the decedent. Husband, wife, mother, etc. can seek a recovery for the death of their loved one.

The tricky part is identifying and proving what lawyers call the "pecuniary value" of a human life. This phrase can be defined as: “The ‘pecuniary value’ of a decedent's life represents the value of the decedent's probable future financial accumulations at the time of the decedent's death.” This typically involves the use of an expert in making this calculation because the accumulation is a net figure. That is, in its most elementary form: average income + years of work life remaining + any increase or decrease in value of the total earnings due to inflation etc. - taxes, the cost of living = the pecuniary (dollar) value of the departed's life.

This all boils down to an expert opinion in the area of forensic economics. Under our rules of evidence an expert is a person who based upon his or her knowledge, training, skill, experience and education is likely to be able to help the jury better understand a fact that requires such help.Experts in Court This process is only a part of the analysis.

Pain and suffering of the lost loved one from the time of injury to death is crucial. The lost to the remaining family (loss of consortium) of the nurture, support, guidance and affection is a significant factor as well. Nonetheless, one cannot ignore that the crucible of a trial heats emotions and hearts as the trial progresses. In other words, the cost of reliving the loss and its consequences can often outweigh any financial recovery. Before traveling down this road, please consider that which you have to gain in light of what you have already lost.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Car And Personal Injuries , Insurance Claims , Trial Practice

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I had said that the blogging hiatus had ended. Little did I know the enormous time commitment that being a coach of a competition level college mock trial team would demand. By this I do not mean only my time, but far more importantly, the time that these young men and women would devote to this important work. The work is important not just for trophies and accolades. Rather, the true significance is the preparation for a life in trial law that is the product of this program. The students spend hours each week (I would estimate in excess of 20 hours) learning the Rules of Evidence; how to conduct direct and cross examinations; the customs of propriety in the courtroom; and the other "rules of the road" which exist in this small area of specialization.

The team has traveled from Los Angeles to Washington, D.C. to compete against other college teams from the likes of Columbia, UCLA, Arizona, The Air Force Academy, Missouri, and Miami. What began in August is now culminating in the AMTA National Championship competition which is being held in Memphis this year and is being hosted by Rhodes College. Over 600 colleges and universities and in excess of 10,000 participants has been narrowed to 48 teams that will do battle as either the prosecution or defense side of a conspiracy to murder trial. After 4 rounds of preliminary trials, on Sunday evening the last 2 teams left standing will seek the title of THE NATIONAL CHAMPIONS for the coming year.

The 20 plus men and women that I have had the honor to coach at one time or another this year in the Rhodes College Mock Trial Program have exceeded my highest expectations. Through grit and tenacity, Rhodes has clawed its way to a berth in this ultimate challenge. whether or not we become this year's champs in the eyes of others is of no consequence. For me, each and every one of these incredibly talented "mockers" already wear the badge of success. They have proven through time and competition that they possess the right stuff. I am humbled by not only their potential but their passion. Bravo to them one and all.

National Championship Tournament
Memphis, Tennessee

FRIDAY (April 16th)

12:00 Registration, BCLC Ballroom, Rhodes College
1:00 All-Group Meeting, BCLC Ballroom
2:00 Captains’ Meeting, BCLC Ballroom
3:00 Judges’ Meeting, Shelby County Court Houses
4:00 ROUND ONE, Shelby County Court Houses

7:00 Judges’ and Coaches’ Reception, Burch, Porter & Johnson Law Firm

SATURDAY (April 17th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND TWO, Shelby County Court Houses
1:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
2:30 ROUND THREE, Shelby County Court Houses
6:00 Student Reception w/ food, University of Memphis Law School

8:00 Rhodes Alum Reception, Marty and Chesney McAfee Residence

SUNDAY (April 18th)

8:30 Captains’ and Judges’ Meetings, Shelby County Court Houses
9:30 ROUND FOUR, Shelby County Court Houses
1:00 Awards Luncheon, Silky Sullivan’s (183 Beale Street)
4:00 NATIONAL FINAL ROUND, University of Memphis Law School

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Mock Trial

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Those of us who take divorce cases have argued for years over the issue of dividing 401K accounts that have increased in value due to the passage of time. Or, for that matter, that have lost value due to market conditions. The first part of this quagmire was recently set to rest by the Tennessee Supreme Court in Snodgrass vs. Snodgrass. The Court said:

In a divorce proceeding the trial court awarded the parties the premarital balances in their respective 401(k) accounts as each party’s separate property. Recognizing the existence of prior, inconsistent analyses by different panels of the Courts of Appeals with respect to whether 401(k) accounts are “retirement or other fringe benefit rights relating to employment” as defined by statute, the Tennessee Supreme Court held that:
(1) any balances that exist in the parties 401(k) accounts as of the date of the marriage remains the parties’ separate property,
(2) the entire net amount by which the parties 401(k) balance increased during the term of the marriage is marital property, and
(3) it is not necessary to consider the parties’ contributions to the increases in the value of the 401(k) plans during the marriage. Snodgrass vs. Snodgrass, (Tenn. Oct. 9, 2009).

While this may seem almost too loaded with common sense to be true, it has laid to rest an important issue during many trials. In my experience the issue sharpens into the "tangible and intangible" contributions of the respective spouses to the appreciation of the 401k asset. For example, if the Husband was a bank president and the Wife was a home maker, the arguments abound that he did all of the work, earned all of the money and that the value increases over time did not result from any action (such as hosting dinners for clients) by the Wife. On the other hand, Wife argues that the added values result from her services as a home maker and wife which allowed the Husband to earn a large income and that but for those services, the Husband would have been unable to earn as much money as he did.

Justice Cornelia Clark wrote in Snodgrass [T]hat net gains from any source
accruing in such accounts during a marriage are all marital property within the meaning of the second clause of section 36-4-121(b)(1)(B)" without resort to the issue of the parties contribution. A sound and good decision in my book. Had the Court ruled otherwise then there would continue to be interminable wrangling over this issue when the reality is that the law says that marital property is that property which is acquired during the marriage unless acquired by some source that clearly is separate, i.e. a gift, a bequest from a will, etc.

Bravo to the Supreme Court.

Posted by William M. Monroe | Permalink | Email This Post

Posted In: Divorce, Support And Custody

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