Memphis Injury Lawyer Blog

The Memphis Commercial Appeal reported today that a young man has been charged with a crime in the accidental hunting incident that I commented on yesterday. As a trial lawyer who handles both personal injury and criminal cases in Tennessee, I thought that the interplay between these two types of matters, might well illustrate what can happen a case such as this.

The Arrest Affidavit charges the hunter under:

39-13-103. Reckless endangerment. (a) A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury. (b) Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

Reckless conduct is generally defined, in both the criminal and civil law contexts, as being a conscious disregard for the health, care or safety of others. You can see how closely these issues are connected by reading the Tennessee Pattern Jury instruction of the law that would be given to the jury to guide their deliberations.

From this incident you can see that a criminal charge, if it results in a guilty plea, can have a parallel civil action attached to it. If the injured person files such a lawsuit, the criminally charged defendant may not have significant assets from which to recover on the civil lawsuit side. However, many Homeowner's Insurance policies and some Renter's Insurance policies, may provide a source of not only payment to the injured party, but also can require the insurance company to provide a defense attorney to the hunter when (and if) he or she is sued civilly. This is yet another case where a bit of prior thought can help to protect your most precious asset: your future.

Yesterday, a Memphis area man was accidentally shot while hunting in Shelby County. As a trial lawyer who handles personal injury cases, it occurred to me that some may wonder whether or not this could be the basis for a negligence lawsuit. Needless to say, we would all hope that events such as this never happen at all. But if sportsmen are not extremely cautious, others can be injured in West Tennessee's sporting areas.

In 2007, the Tennessee Wildlife Resources Agency Report stated that 11 persons were either wounded or killed in hunting related accidents. The average age of the victim was 51 years of age and the average distance from the victim to the source of the shot was 21 to 50 yards. While details are still quite sketchy, it has been reported in the local media that deer hunters fired their rifle or shotgun from several hundred feet away striking the victim. This happened at approximately this location. You will note the close proximity to subdivisions and busy streets:

Negligence is defined in the law as the breach of a known duty that is the direct cause of an injury or damage. Please remember that when you are handling a firearm that you are engaged in an ultra-hazardous activity. When you pull the trigger, you may miss the target and if you have not considered what might lay beyond, then you could be held liable in a court of law. many helpful tips for safety in hunting can be found at the TWRA website.

Each year, and it seems to always surround the holiday season, Memphis and our adjoining West Tennessee neighbors suffer some sort of a tragic loss. The Memphis Commercial Appeal (See this article), reported the deaths of three family members in all too short a period of time. What caught my eye was the incident near Nucor Steel. A personal injury client of mine reported to me just last week that this area has had numerous automobile accidents in the recent past. As a result of this article, I decided to investigate further because a few years ago, I had a jury trial involving such a case.

In the case in which I was involved as the trial lawyer, a Memphis LG&W worker who had just come off of a double shift, fell asleep at the wheel on Kirby Parkway in southeast Memphis. His car crossed over the center line and hit my West Tennessee client's car which resulted in severe personal injuries to both the driver and the passenger. Thankfully, neither of my client's died. Upon further investigation, I discovered that the MLG&W worker had been treated previously for a condition (sleep apnea) that caused him to unexpectedly fall asleep. Interestingly, the Tennessee appellate court held beginning with McCall vs. Wilder, that if a driver did not know (or have reason to know) of his or her medical problem before the crash, then the jury may consider this fact in comparing the fault of the parties.

As you can see from these maps, the site of this deadly crash is in an isolated and industrial area of President's Island in Memphis. The relatively flat terrain and sparse traffic is an open invitation for some persons to put the pedal to the metal. There is no certainty at all, at this point in time, that speed, alcohol or other factors contributed to this horrific situation.

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We all have a tendency to think when we read of an event such as this that there must be some fault involved. While this is frequently true, it is equally true that the deaths could have resulted from an unavoidable accident. Time will tell us all how this senseless loss of life happened. In the mean time, all responsible observers will support the family and withhold making judgments of blame or fault.

We all have to have health and prescription coverage. Right? Well corporate America sometimes preys on injured people and those who have suffered a Worker's Compensation injury. In Tennessee, an employer covered by the State of Tennessee Worker's Compensation Act must pay 100% of the reasonable and necessary costs of prescriptions that are needed due to a work connected accident. As the cost of health care skyrockets, it is little wonder that Memphis trial lawyers have to fight tooth and nail to get the medicines that their clients require.

McKesson Corporation has been a distributor of medications for over 150 years. Today, McKesson has agree to pay the staggering sum of nearly $500,000,000.00 in settlement of a RICO suit in the United States District Court in Boston, Massachusetts. The Carpenter's Union health fund brought a class action lawsuit claiming that McKesson artificially inflated prices on many of its drugs, such as Lipitor, without just cause.

In 2007, according to the Kaiser Family Foundation, You and I spent $5,483,902,894.00 to fill prescriptions in Tennessee. Another way to look at it is that every Tennessean in 2007 filled on average 16 prescriptions. See the report here. One can only imagine how much of this cost is real and how much was artificially inflated by McKesson and perhaps others, as well.

Be on guard Tennessee. Your most precious asset is at potential risk: your ability to afford meaningful health care or, in other words, your present and future health.

The Mid South is infected with many national personal injury problems. Recently a West Tennessee client brought a matter to us that required the special skills of a Memphis trial lawyer. This gentleman had a defective product case that is rather unique. Not only was his life completely upset by a dangerous and defective product, but his family had also suffered untold worry and anxiety. The hip joint bears most of the weight of the upper body. So when this hip replacement exploded inside of him, it was important for my client to come to Memphis to seek qualified and competent legal advice.

My West Tennessee client felt a sudden pain in the hip area along with a popping noise that went along with intense pain. The solution to this issue was another surgery. This surgery is explained, as follows:

The problem in these situations is that with every operation the chance increases that the hip implant, defective or not, will not last as long as it was designed to do. The FDA announced a major recall in 2001 due to fracturing problems, this time involving St. Gobain Desmarquest implants. This manufacturer recalled its implant with a ceramic head just prior to an announcement by the FDA. The reason for the recall was a higher fracture rate for this product in several patients a few years following surgery. Fortunately only a small percentage of the implants had such a sudden and catastrophic failure.

In the image above, you can see the broken head of the implant (upper left) and the pieces of the broken ceramic material embedded into the tissue (lower right). Defective products are those products that are unreasonably unsafe or inherently dangerous for their intended purpose. These dangers can be proven in court if the defect or design failure causes harm or an increased risk of harm to the consumer or if the consumer's expectation of the safe use of the product is not met.

There are a variety of legal theories that can be the basis for a products liability lawsuit under the facts that we are discussing. Some of these are:

1. Breach of Warranty

2. Negligence

3. Strict Liability

As with any plaintiff's case, in order for an injured person to recover for their injuries and damages, the plaintiff must first prove liability or fault. The items of damages in these cases, as in most others, can include:

1. Medical expenses
2. Out of pocket expenses
3. Past lost wages
4. Future lost wages
5. Loss of earning capacity
6. Pain, suffering, anxiety, emotional upset

The statute of limitations is the time limit within which a lawsuit can be filed after the damage or injury occurred. This time limit in Tennessee is one year from the date that the injury happened or one year from the date that the plaintiff knew or should have known that he or she was injured as a result of the manufacturer's fault. If you or someone that you care about has been injured by an event such as this, seek immediate medical and legal advice. Please remember to protect your most valuable asset: your future.

I have found through the years as a Memphis trial lawyer that many clients (and juries) fail to understand just how devastating a so called "whiplash" injury can be. Many crashes happen every day in Tennessee that result in a trip to a Shelby County doctor or hospital. Sadly, many victims of this injury fail to recognize until some later time, just how debilitating such an event can be. I can not tell you how many times that I have heard,"Well its only a whiplash." I hope that you will take a moment to watch the following video. If you fail to cringe while seeing this impact, then you are a stronger person than I.

This diagram illustrates the "common areas" where a victim feels discomfort. However, the Signs & Symptoms of Neck Injuries are far more revealing. Many persons have pain in the front of the neck, jaw and even the front of the shoulders as well. Pain in the center of the chest is a well documented result of impact from your own seat belt strap. Needless to say, short of never getting into a car, these crashes have become a part of everyday life. However, as the following video demonstrates, your choice of vehicle can make a substantial difference in the outcome for you as a driver or passenger.

If your car is more "crash worthy" than others, you may do far better than in a car that is not designed to withstand the inevitable accident. If you are injured, do not listen to anyone who advises you not to seek immediate medical attention. After you are being treated there will be plenty of time to consider your legal rights concerning the accident and the safety -or lack of safety- of your own vehicle. Protecting your future is important, but seeking prompt and competent medical care has to come before all else.

Memphis, much like all of Tennessee and the rest of the United States, seems to be focused on staying trim. Many in Shelby County and the Mid South regularly use a variety of diet products to keep their weight in line with their self image. The dangers of diet drugs aside, other dangerous or unsafe products do exist in the marketplace. Yesterday, Lean Cuisine was recalled due to the likelihood of injury if eaten.

This is recall, that could affect Memphis and all of Tennessee, is referred to as a Class I recall. This is defined as:

This is a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death.

Nestle, a Utah based company, has recalled nearly 900,000 pounds of their product which may contain pieces of blue plastic which could be harmful if ingested. These items can be identified, as follows:

The following products are subject to recall:

* 9.5-ounce packages of “LEAN CUISINE PESTO CHICKEN WITH BOW TIE PASTA” brand frozen meals. Printed on each side of each package is a production code of “8280595912” as well as a use-by date of “Best Before MAY 2010.”
* 10.5-ounce packages of “LEAN CUISINE CHICKEN MEDITERRANEAN” brand frozen meals. Printed on the side of each package is a production code of “8231595912” or “8241595912” as well as a use-by date of “Best before SEP 2010”; a production code of “8263595912,” “8269595911” or “8274595912,” as well as a use-by date of “Best before OCT 2010”; or, a production code of “8291595912” or “8301595912” as well as a use-by date of “Best before NOV 2010.”
* 12.5-ounce packages of “LEAN CUISINE CHICKEN TUSCAN” brand frozen meals. Printed on the side of each package is a production code of “8234595911” and a use-by date of “Best before SEP 2009”; a production code of “8253595911” or “8269595912” as well as a use-by date of “Best before OCT 2009”; or, a production code of “8292595911” or “8296595911” as well as a use-by date of “Best before NOV 2009.”

Each package also bears the USDA mark of inspection as well as the establishment number “EST P-9018.” The frozen chicken meals were produced on Aug. 18, Aug. 21, Aug. 28, Sept. 9, Sept. 19, Sept. 25, Sept. 30, Oct. 6, Oct. 17-18, Oct. 22 and Oct. 27 and were distributed to retail establishments nationwide.

If you have any of these unsafe products, DO NOT USE them. Please make reference to the following web page and report the product: Lean Cuisine Recall Info In the event that you or your family are injured from this unfortunate situation, we are ready to help protect your future safety and security.

It is that time of year again. Memphis children have begun falling asleep with visions of sugar plums dancing in their heads. West Tennessee parents, on the other hand, have begun the difficult task of finding Christmas goodies that are both safe and appealing. Each year in Shelby County, the hospital emergency rooms begin to see children who are injured by everything from acrobat costumes to xylophones. Unfortunately, many of these injuries are avoidable.

The Consumer Products Safety Commission (CPSC) publishes reports each year that detail the types of dangerous products that have either been recalled because of potential dangers or products that have caused serious injury or death to our kids. For example, in 2007 18 children died due to a defective or dangerous toy. Over 100,000 emergency room visits for children have been linked to this same cause. Injured Kids Report

To get some understanding of the breadth of this problem, consider that the following products have been recalled due to safety concerns in just the last few months: Rage Wireless Guitar controller for use with the Wii gaming system; Swimming pool dive sticks and a child's xylophone.CPSC Report

Now that we know about the issues, we turn to prevention. According to the CSPC, the best tips for holiday shopping safety are:

* Scooters and other Riding Toys – Riding toys, skateboards and in-line skates go fast and falls could be deadly. Helmets and safety gear should be worn at all times and be sized to fit.

* Small Balls and other Toys with Small Parts – For children younger than age three, avoid toys with small parts, which can cause choking.

* Balloons - Children under eight yrs. can choke or suffocate on un-inflated or broken balloons. Keep un-inflated balloons from children. Discard broken balloons at once.

* Magnets – For children under age six, avoid building or play sets with small magnets. If magnets or pieces with magnets are swallowed, serious injuries and/or death can occur.

* Chargers and Adapters – Charging batteries should be supervised by adults. Chargers and adapters can pose thermal burn hazards to children.

Once the gifts are open:

* Immediately discard plastic wrappings on toys before they become dangerous play things.

* Keep toys appropriate for older children away from younger siblings.

* Pay attention to instructions and warnings on battery chargers. Some chargers lack any device to prevent overcharging.

In the event that prevention is not successful, CPSC Chairman's Advice, then the wise parent must get help to protect their children from the results of these dangerous products. This area of the law is difficult and requires a depth of experience. We are here to help.

A Memphis man was recently charged with one of the most dastardly crimes imaginable. This Shelby County resident is accused of having killed his girlfriend and then, with the unwilling help of her daughter, he is alleged to have cut her body into pieces. Apparently, the accused was not sure of the victim's death. The Memphis police charge that he then burned her body parts and spread them around West Tennessee. The Shelby County Medical Examiner confirmed the victim's identity by DNA tests and dental records.

The accused has been sent for a mental competency test, but if he goes to trial the Judge will require that the jury find him guilty, if so they do, beyond a reasonable doubt and to a moral certainty. These words that bear such huge legal significance were "invented" by someone. The use of forensic dental testing did not begin with CSI. Let us wander back into legal history and explore the origin of these important concepts in Tennessee law.

The case of Dr. John Webster was of immense importance for the emerging law of the United States. Dr. Webster was a scholar of some significance, if not wealth. Most of Webster's peers came from old money and they dabbled at teaching for amusement. Dr. George Parker was one of these men.

THE ACCUSED

THE VICTIM

Parker was a man of financial means. He, and his family before him, were wealthy and had large real estate holdings. The accused, Dr. Webster, had borrowed the large sum of $400.00 from Dr. Parker. As was his custom, Parker made his rounds once a month to collect his rents and loan interest. On the fateful day, Parker approached Webster's laboratory intending to collect on his debt. After Webster said that he could not repay Parker, an argument broke out. In order to make his point, Webster punctuated his argument by whacking Parker in the head with a piece of firewood from the nearby hearth of the fireplace in his lab. Parker concluded his portion of the drama by expiring on the floor in a pool of his own blood.

In 1850, Dr. John Webster was tried for the murder of Dr. Parkman in Boston, Massachusetts. The trial judge for what was to become a celebrated case was the Hon. Lemuel Shaw.

THE JUDGE

It is Judge Shaw's explanation of reasonable doubt that is most historically definitive. In 1850, the standard in murder cases was proof "to an absolute certainty" that the dead body was that of the victim, or absolute proof of corpus delicti. The Webster case was one of the first capital cases to be won without absolute evidence that the victim had been murdered. It could not be established that the bones discovered were Parkman's. Judge Shaw opened the door for the jury to convict anyway by changing the standard. He instructed them that they need only prove corpus delicti "beyond a reasonable doubt."

The evidence must establish the corpus delicti.... must not only prove a death by violence, but must, to a reasonable extent, exclude the hypothesis of suicide, and a death by the act of any other person. This is to be proved beyond a reasonable doubt.

Then, what is reasonable doubt? ... It is not mere possible doubt; because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

THE EVIDENCE

Dr. Nathan C. Keep, who later became the first Dean of the Harvard Dental School, provided dental testimony during the trial of John Webster. It was the first trial in which dental evidence was introduced, and one of the first to admit forensic evidence as reliable. Dr. Keep's direct examination was, even by today's standards, exquisitely conducted. The prosecutor developed his witness's qualifications; the basis for his opinions; and Dr. Keep's opinion that the tooth found in Dr. Webster's lab was the same one that Keep had implanted into George Parker's jaw.

It was upon this basis that Dr. John Webster was found guilty by the jury beyond a reasonable doubt and to a moral certainty for the murder of Dr. George Parker. He was subsequently hanged. The joinder of all of these now familiar concepts in one trial is, from a historical perspective, amazing. The next time that you hear the term "reasonable doubt", think kindly of Judge Shaw.

Memphis residents should remember that on April 1, 1989 eight people were killed when their car fell into the Hatchie River just north of Shelby County. After an exhaustive investigation, the National Transport Safety Board (NTSB) found that these deaths resulted from negligence. The NTSB found that if the State of Tennessee had given attention to serious problems with the bridge that were discovered by state inspectors long before the accident, then these deaths could have been avoided.

This frightening image shows the crash of the bridge into the murky water. As a trial lawyer, I have seen such events before and it always send a chill through my body. Negligence is the breach of a duty of care which is the cause of damages. As tax payers, we all hear of the so-called frivolous lawsuit. In my experience, some cases have far more merit than others. However, prior knowledge or the duty to investigate the safety of a bridge cannot be thought of as anything but proper.

The point of this article is to focus our attention and empathy on this week's news. Some of the families of the victims of the Minneapolis bridge collapse that happened August 1, 2007 have filed suits for wrongful death. In its interim NTSB pointed to an error in the design of the 40-year-old bridge: 16 gusset plates — the components that helped connect steel beams — in the center span were designed at only half the required thickness, and fractured. The following horrific scene could have been avoided if the design were proper and the inspections of the bridge had been thoroughly conducted.

Apparently the State of Minnesota did not take the necessary precautions in either its design approval, construction,inspection and, most important of all,...the protection of the future of its citizens.

We all know that every driver in Tennessee has to have liability insurance, right? Wrong. To those of us who live in and around Memphis, it seems that the insured cars have a great, big red bull's eye painted on both sides of the vehicle. This target is apparently placed there just so uninsured motorists have a really good aim point. Tennessee is one of a handful of states that does not necessarily require a driver to have liability insurance, but rather must show proof of "Financial Responsibility."

I know that we all think that we have to carry insurance cards in our purse or wallet to show to the nice police person when and if we are stopped for a traffic violation. And, I know that this seems to be in direct contradiction to the paragraph above, but we shall see that the law is unphased by this small detail. Tennessee law section 55-12-139(b) requires every driver to show proof:

For the purposes of this section, “financial responsibility” means: (1) Documentation, such as the declaration page of an insurance policy, an insurance binder, or an insurance card from an insurance company authorized to do business in Tennessee, stating that a policy of insurance meeting the requirements of this chapter, has been issued; (2) A certificate, valid for one (1) year, issued by the commissioner of safety, stating that a cash deposit or bond in the amount required by this chapter, has been paid or filed with the commissioner, or has qualified as a self-insurer under § 55-12-111; or (3) The motor vehicle being operated at the time of the violation was owned by a carrier subject to the jurisdiction of the department of safety or the interstate commerce commission, or was owned by the United States, this state or any political subdivision thereof, and that such motor vehicle was being operated with the owner's consent.

One can only wonder how many Memphians happen to have a copy of the bond posted with the Commissioner of Safety in their glove box. But I digress. If you are injured by an Uninsured Motorist (UM), all is not lost. Under Tennessee law, many of you are already covered for such an unhappy event and probably don't even know about it. Unless you specifically opt out of UM coverage when you buy your policy or renew it, you are covered for being hit in the bull's eye by a person who has,in every sense of the words, a lack of Financial Responsibility. The minimum amounts of coverage are set by state law. In a following entry, we will find out about how to make a UM claim.

As a Memphis trial lawyer and father, I am passing along to all Shelby County parents, as well as parents in the Mid South, the following dangerous product recall. Please check your medicine cabinets and diaper bags!

Johnson & Johnson • Merck Consumer Pharmaceuticals Company (JJMCP) is voluntarily recalling approximately 12,000 units of Infants’ MYLICON® GAS RELIEF DYE FREE drops (simethicone-antigas) non-staining sold in 1 oz. plastic bottles that were distributed after October 5, 2008 nationwide. The company is taking this action in consultation with the U.S. Food and Drug Administration (FDA). Although the potential for serious medical events is low, the company is implementing this recall to the consumer level as a precaution after determining that some bottles could include metal fragments that were generated during the manufacturing process. If any medical events were to occur, most are expected to be temporary and resolve without medical treatment. Parents who have given the product to their infant and are concerned should contact their health care provider immediately.

About MYLICON® drops

Infants’ MYLICON® drops, the #1 pediatrician-recommended anti-gas medicine, relieve the discomfort of infant gas frequently caused by air swallowing or by certain formulas or foods. For more information, visit: www.mylicon.com.

Johnson & Johnson • Merck Consumer Pharmaceuticals Co. is a U.S.-based 50/50 joint venture formed to develop and market non-prescription products derived primarily from Merck & Co., Inc. prescription medicines, as well as products licensed and acquired from outside sources. Brands marketed under this joint venture include Infants’ MYLICON®, MYLANTA®, PEPCID® Complete and PEPCID® AC.

The two lots of Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining 1 oz. bottles included in the recall are:

Code # 71683791111-1
Lot # SMF007
Exp 09/10
Product: Infants’ MYLICON® Gas Relief Dye Free Non-Staining Drops 1 oz.

Code # 71683791111-1
Lot # SMF008
Exp 09/10
Product: Infants’ MYLICON® Gas Relief Dye Free Non-Staining Drops 1 oz.

Consumers can find the lot numbers on the bottom of the box containing the product and also on the lower left side of the sticker on the product bottle.

Consumers who purchased Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining included in this recall should immediately stop using the product and contact the company at 1-800-222-9435 (Monday – Friday, 8:00 a.m. – 8:00 p.m. EST) or via the internet at www.mylicon.com for instructions regarding how to dispose of the product and request a replacement or refund.

Infants’ MYLICON® drops are sold over-the counter, in retail stores and pharmacies, as an anti-gas medicine to relieve the discomfort of infant gas frequently caused by air swallowing or by certain formulas or foods.

The recall does not affect any Original Infants’ MYLICON® GAS RELIEF products (1/2 oz. or 1 oz. size) or Infants’ MYLICON® GAS RELIEF DYE FREE drops non-staining (1/2 oz. size).

The manufacturer has instructed retailers and wholesalers to return their inventories.

Adverse reactions or quality problems experienced with the use of this product may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or by fax.

Online: www.fda.gov/medwatch/report.htm

Fax: 1-800-FDA-0178

Cluck Kent was a mild mannered reporter for a great Memphis metropolitan newspaper. His former fiancé, Lipsy Lane, was interested in serving him with papers to establish Tennessee child support for their bouncing baby boy, Kal-el. After months of trying to serve the “Man of Steel”, Lane saw her golden opportunity to have the Shelby County lawsuit handed to her former lover. Lane discovered that her “Man” had been called for jury duty in Memphis and Lipsy intended to get her “Man”. The very next day, while Cluck was sitting in the jury box in Shelby County Circuit Court, the dreaded process server put the papers into Cluck’s hands. He was just summoned to a paternity hearing in Shelby County Juvenile Court the very next week.

As an observer of the human condition and a trial lawyer who handles these kinds of cases, I wonder: Is it fair for the “Man of Steel” to be served papers while discharging his public duty of jury service? Suppose he had been served while leaving the parking lot to enter the Shelby County Courthouse?

Effective January 1, 2009, some rather sweeping changes to the selection and exemption of prospective jurors from jury service shall go into effect. In our example above, Kent would have legal grounds to challenge the service of process under Tennessee code Annotated 22-1-106:

Service of process on any juror while that juror is attending or traveling to or from the court to which the juror is summoned is voidable and subject to challenge.

But this is not the only change. Formerly, a citizen could try and
avoid jury service due to his or her age, job (doctor, lawyer, etc.), and several other factors. As of January 1, however, the Court overseeing the selection and empaneling juries shall only excuse a person if:

The prospective juror has a mental or physical condition that causes that person to be incapable of performing jury service.

The person's service will constitute an undue or extreme physical or financial hardship to the prospective juror or a person under the prospective juror's care or supervision.

The legislature defined undue hardship as any of the following:

The prospective juror would be required to abandon a person under the juror's personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver during the period of participation in the jury pool or on the jury;

The prospective juror would incur costs that would have a substantial adverse impact on the payment of the juror's necessary daily living expenses or on those for whom the juror provides the principle means of support;

The prospective juror would suffer physical hardship that would result in illness or disease; or

The prospective juror would be deprived of compensation due to the fact that the prospective juror works out-of-state and the out-of-state employer is unwilling to compensate the juror or that the prospective juror is employed by an employer who is not required to compensate jurors and declines to do so voluntarily.

I have argued many cases to both civil and criminal juries. In my opinion, the willingness to serve on such a jury is the foundation of our justice system. I fully understand the inconvenience and financial impact of performing this duty. However, with the possible exception of voting, there is no duty more important than being the sole judge of the facts in a case. That is correct. In either kind of trial only the jury can decide the truth of what happened. This function is far too important to measure in words or dollars. By serving as a juror, one can affect not only the system but the lives of the parties to the case, as well. Stand and Be Counted.

In Tennessee civil cases, the winning or losing happens in or after the depositions. A deposition is sworn out of court testimony recorded by a stenographer with lawyers for both sides in attendance. In other words, a witness is examined by one of the lawyers and a court reporter takes everything down. The reporter later types up the proceedings which is referred to as a transcript. Most depositions in Memphis are also videotaped these days and any appropriate documents can be attached as exhibits to the transcript. Sounds pretty straight forward, right? Wrong.

This is a battleground in a lawyer's conference room. The lawyer who is taking the deposition of the witness is attempting to "discover" information from the witness that is relevant to the case or information that might lead to the "discovery" of relevant admissible evidence. This lawyer is also trying to freeze the witnesses testimony to what is said in the deposition so that the witness cannot change his or her story later. This boils down to a huge fishing expedition where the witness is the fish and the lawyer is looking to fry him up for dinner. Lawyers are attempting to learn all that they can about the case from the witness, but that is not the whole agenda.

An experienced lawyer is already preparing his cross examination in the deposition. That is, the lawyer is finding out the strengths and witnesses of each witness so that when the lawyer prepares the case for trial, she knows how to phrase a question; what questions should and (sometimes more importantly) should not be asked; and in what order the questions should be asked. One of my mentors told me that the quality of the deposition testimony decides who will put on the best case at trial and will frequently determine who wins the trial and who loses. These mini-trials are governed by a set of rules which include both the Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence. What the Rules don't tell you is the "do's and don'ts" for witnesses giving a deposition.

Let's examine the following deposition carefully. I think that you will find that the deponent (the person who is giving the deposition testimony) does a very good job of following the rules for giving a good deposition, with one exception.

If you thought that the witness did well except for the portions where she loses her temper with the lawyer respecting her brother, I agree. The following are my 21 Commandments for Depositions. Most of these "commandments" apply to every deposition and I submit that if you follow these suggestions, you will give your best deposition. They are:

1. Be truthful at all times.
2. Remember the purpose of taking your deposition is to get information from you.
3. Be polite and respectful, but firm with the examining attorney.
4. Listen carefully to each question and answer only the question asked.
5. Don't try to answer a question you do not understand.
6. Do not speculate or guess at an answer.
7. Do not volunteer any information. (If you are not asked about it, don’t volunteer it.)
8. Do not attempt to tell your side of the story at the deposition. (Don’t attempt to argue the case)
9. Be on guard against the deposing attorney re-characterizing or rephrasing your testimony.
10. Be careful of "tell me all you know" questions.
11. Be cautious of requests for you to admit a fact.
12. Be careful of questions based upon incorrect assumptions.
13. Don't reveal information that is private between you and your attorney.
14. Do not argue with the examining attorney, lose your temper or become upset.
15. If you are asked a question about a document, be sure that you know what it says before answering.

16. If you are a party, you may be charged with knowledge of the contents of pleadings.

17. Advise your attorney of any documents you reviewed to prepare for your deposition.
18. If you discover that you have inadvertently given an incorrect or misleading answer, tell your attorney. He may want you to correct it on the record.
19. If you wish to take a break because you're tired or for any other reason, tell your attorney.
20. It is okay for you to talk with your attorney during breaks. It is not permissible for your attorney to tell you how to answer a particular question.
21. Pay attention to objections by your attorney.

In closing this article, perhaps the following bad example will help us realize what a deposition disaster is like. If you can hang around until the final sentence, you will see a vulgar piece of testimony that in Shelby County could well land you in jail for contempt of Court. Yes, a court can hold you in contempt for your conduct in a deposition.

Tennessee automobile law and that of other states has been severely impacted by the advent of video cameras. Imagine that the following scenario happened in Germantown, Tennessee.

A police officer attempted to pull over a car for speeding. Victor Harris fled in his vehicle, initiating a high-speed car chase. Attempting to end the chase, Deputy Timothy Scott rammed Harris's vehicle with his police cruiser. Harris crashed and was rendered a quadriplegic. Harris sued Scott in Federal District Court, alleging that Scott had violated his Fourth Amendment rights by using excessive force. Scott claimed qualified immunity as a government official acting in his official capacity. Qualified immunity means that a person cannot be sued for injuries if that person has acted reasonably within his duty as a police officer.

In order to show that a government official is not entitled to qualified immunity, a plaintiff is required to prove that the official violated a clearly established constitutional right. The lower Court ruled that Scott's actions constituted an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution. Because there was no imminent threat - Harris remained in control of his vehicle and the roads were relatively empty - Scott's use of deadly force was unconstitutional. The Appellate Court ruled that the limits on deadly force in a high speed chase were "clearly established." The case was then appealed to the Supreme Court.

1) Does a police officer who stops a high-speed chase by ramming a fleeing suspect's car violate the protection against unreasonable seizure?

2) Was it "clearly established" in federal law that an officer violates the Fourth Amendment to the Constitution by using deadly force during a high-speed chase?

Before you decide, please take a look at the actual video of the chase in question. Please note that this has been edited to the critical portions but no important elements have been removed:

The Courts are often chastised for protecting the rights of the wrongdoer and ignoring the realities of police work. We have all heard the news reports of a Defendant being exonerated due to a "technicality". The reality is that Judges are mindful of the rights and duties of all sides to an issue. In this case, the Court ruled 8-1 that Scott's actions were reasonable under the Fourth Amendment. The opinion by Justice Antonin Scalia relied heavily on a videotape of the car chase, which it said contradicted the plaintiff's claim that he was driving responsibly even while being pursued by the police.

The majority of the Supreme Court held that "[...] it is clear from the videotape that [Harris] posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." The opinion weighed the need to prevent the harm Harris could have caused against the high probability that Harris himself would be harmed by Scott's use of force. It also took into account Harris's culpability for starting the chase in the first place. The Court concluded that it is reasonable for a police officer to use deadly force to prevent harm to innocent bystanders, even to the point of putting the fleeing motorist at serious risk of injury or death.

The full opinion of the United States Supreme Court can be found at Scott v. Harris opinion.

As current events unfold, I look back on the reasons that I went to law school and how these events may cause all Tennesseans to remember the phrase "Equal Justice Under The Law". When I graduated from what is now the University of Memphis Law School, I was filled with all of the idealism that one would expect from a child of the 60's. Being raised in East Memphis, I still remember seeing National Guard tanks rolling through the intersection of Poplar Avenue and White Station Road following the murder of Dr.Martin Luther King. My mind still contains a clear picture of my fellow citizens dressed in olive drab uniforms patrolling the streets with bayonets afixed to their rifles.

Now that our country has elected Barack Obama as our first African-American President, I pause today to reflect upon my own values after over thirty years as a Memphis trial lawyer. Anyone who deals, day in and day out, with the problems of others becomes somewhat jaded to all of the violent emotions that swirl around him. Professional distance becomes a shield that protects not only one's own psychological well being, but it also assures that we can continue to give unbiased advice to those who place their futures into our hands. I do not know why but today I was drawn to the story of three young people who were murdered and buried in an earthen dam near Philadelphia, Mississippi over forty years ago. My mind wandered back to "Mississippi Burning" compared to my recollections of 1964. Mississippi Burning Trial

As a result of this mental wanderlust, I have blown the dust off of some of the information respecting Andrew Goodman, James Earl Chaney, and Michael Henry Schwerner. This process reminded me of a great trial lawyer who fought to assure that these young men, after a fashion, received at least a small measure of justice. This man is John Michael Doar.

Doar was born in 1921 in New Richmond, Wisconsin. His father, W.T. had taken a job in a law firm in this small essentially all white town. This solidly catholic community imbued John with his credo: "Do the right thing regardless of the consequences." This ideal is precisely what led Doar to face an angry brick throwing mob in 1963 in Jackson, MS. The warring factions were the Jackson Police Department and a throng of grief stricken African Americans who were mourning the death of Medgar Evers. With outstretched empty hands, Doar approached and quelled the violence with an act that must be historically likened to single-handedly forestalling the Boston Massacre.

In a 1985 interview, Doar remembers:

Well, I went to the funeral. And uh, because I knew Medgar. And uh, he was a friend, and uh, then uh, the his friends, people from all over the country came to the funeral wanted to have a march and they wanted to march up the main street in Jackson. I can't remember the name of the street, but it was, Jackson had one main street principally. And the police officials didn't want them to do that, they said that they could walk across and then walk into a side street where the uh, black restaurants and the black stores were where blacks congregated a side street which was the typical pattern in a Southern town in 1960. There was a street for whites and a street for blacks – and the black street was a side street and a 2nd class street. And the police permitted the par—the marchers, the memorial march to cross the main street, but then finish up in the side street where the b—the black shops were. And it was a nice day, warm day, summer day, and uh, uh, I remember that there were a lot of kids around, and uh, and uh, uh, it was a friendly, but there was a lot of people milling around the streets and then some kids, I don't know who they were decided that they would march up the main street. And so they started back along toward the main street of Jackson and when they got to the corner of this side street that I've described, and the main street, the police put up a road block, put up a line of people and, and, block, and said you can't, you can't march on the main street of Jackson, Mississippi. And, so you had a line of police and you had a line of kids, or 3 lines of kids, and they were 2 or 3 feet apart and the, the kids were singing and agitating, and yelling and shouting and complaining and, and uh, then who pushed who first, I can't tell you but the police started to reach out and grab one, five, six of these kids and throw ‘em in the paddy wagon. And uh, uh, they uh, got the… that stopped. And then they decided that they would clear the street. This, this is the city police of Jackson. And they started to move along this side street uh, and to disperse the crowd. Uh, as uh, they moved further and further into the side street, and I was there observing as a representative of the Justice Department, and, and as they moved farther down the street, kids started to throw bottles and rocks from nobody was uh, close to getting hurt, and the city police were disciplined and controlled and moving slowly up the street in a line across the entire block. And when they got about a block up the street, the uh, the county uh, Sheriff's Office, uh supplemented this line of police with County Deputies and they had guns, shot guns, and uh, my, I didn't think that uh, they had the discipline that the City police officers did. And uh, so half a block down the street, a, a, black kid had come out of the crowd and throw a bottle and it had bounced in front of this line of police and the glass had skidded into them, or a rock had come out or a brick had come out and it had hit, hit the street in front of ‘em and skidded into em, and uh, I was just afraid that if this kept on that somebody was really going to get hurt because I didn't have any confidence in the discipline of those county officers. So I walked through the, the uh, the line of police and walked out and persuaded everybody to stop.

Shortly thereafter, Doar guided the investigation and trial of 18 Mississippians for civil rights violations which arose from the deaths of Goodman, Chaney and Schwermer. Not only was this a dangerous task but in addition to all of the obvious legal obstacles, Doar faced incredible racism within the Grand Jury itself. You see, these white jurors had to rely upon and believe the witnesses testimony many of whom were black. An internal FBI memo from 1964 illuminates this problem better than my poor words See, A. Rosen letter. Following what can only be mildly described as a contentious trial, The New York Times reported a guilty verdict against the Defendants from Doar's efforts:

MISSISSIPPI JURY CONVICTS 7 OF 18 IN RIGHTS KILLINGS MERIDIAN, Miss., Oct. 20     A Federal Court jury of white Mississipians convicted seven men today for participating in a Ku Klux Klan conspiracy to murder three young civil rights workers in 1964.     Guilty verdicts were returned against Cecil R. Price, 29 years old, the chief deputy sheriff of Neshoba County, and Sam H. Bowers Jr., 43, of Laurel, identified as the Imperial Wizard of the White Knights of the Ku Klux Klan.  Also convicted were Horace D. Barnette, a one-time Meridian salesman; Jimmy Arledge, 30, a Meridian truck driver; Billy Wayne Posey, 30 a Williamsville service station operator; Jimmie Snowden, 34, a Meridian laundry truck driver, and Alton W. Roberts, 29, a Meridian salesman.

However, this victory was bittersweet. This was not a conviction for murder but was rather a short term imprisonment verdict and not all who took part were found guilty. The most notable escapee from justice was Edgar Ray Killen. It was not until 41 years later that the scales of justice equalized a bit. The Court, entered a nearly unheard of manslaughter guilty verdict against Edgar Ray Killen, a/k/a "The Preacher", and sentenced the KKK ring leader to the maximum punishment that the State of Mississippi could mete out: sixty years in prison.

Today, on the eve of a new era in American politics, we should all in Doar's words "persuade everybody to stop." We must all stop judging the veracity of a person's words based upon their ethnic origin. We must assure that all persons have equal access to qualified legal representation. And, we must all recognize that this fresh new wind that is blowing across our country has a chance of securing the blessings of liberty for the future of all of our children.

The Uniformed Services Former Spouse Protection Act governs the division of military pensions. USFSPA is designed to give a division guideline to Memphis and Tennessee Divorce Courts for these pensions in the event of the dissolution of a marriage. The USFSPA does not automatically divide a former spouse's retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property. Tennessee law defines marital property as:

“Marital property” means all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. In the case of a complaint for legal separation, the court may make a final disposition of the marital property either at the time of entering an order of legal separation or at the time of entering a final divorce decree, if any. If the marital property is divided as part of the order of legal separation, any property acquired by a spouse thereafter is deemed separate property of that spouse. All marital property shall be valued as of a date as near as possible to the date of entry of the order finally dividing the marital property. “Marital property” includes income from, and any increase in value during the marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage. “Marital property” includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property. This property can then be divided in a divorce action. Disposable military retired pay is a service member’s monthly retired pay minus qualified deductions. USFSPA allows the Divorce Court to treat military retired pay just as it would treat a civilian pension plan.

Retired pay may be divided for marital dissolution purposes. Retired pay may also be garnished to satisfy child support and alimony obligations. Whether military retired pay will be treated as marital property and how the service member's military retired pay will be divided between the two parties upon divorce is decided according to Tennessee state law. Tennessee courts have treated a service member's military retired pay as a marital asset which can be divided in a divorce action.

The issue of military retirement and a post-divorce change of benefits was recently dealt with by our Supreme Court. Justice Janice Holder writing for the Court, offered the opinion, in Johnson v. Johnson, that any attempt to reduce or modify military retirement benefits after the Marital Dissolution Agreement is ineffective. In this case the parties’ Marital Dissolution Agreement divided Mr. Johnson’s military retirement benefits to provide one-half of those benefits to Mrs. Johnson. After the Final Decree was entered, Mr. Johnson unilaterally waived a portion of his benefits.

The Court held that when a Marital Dissolution Agreement divides military retirement benefits, the non-military spouse obtains a vested interest in his or her portion of those benefits, as of the date of Court’s decree. Any act of the military spouse that unilaterally decreases the non-military spouse’s vested interest is an impermissible modification of a division of marital property and a violation of the Final Decree of Divorce incorporating the Marital Dissolution Agreement.To see the full opinion: Johnson vs. Johnson

This is a fair result. Had the Court ruled otherwise, one party could destroy the "equitable" nature of a mutually agreed upon settlement of their case. This would be like going back after the conclusion of a baseball game and changing the rules so that the result is the opposite of what really happened. Not only would such a thing be unfair, but it would make it impossible to protect that which you value the most: your future.

As a Tennessean who grew up on Davy Crockett stories, history has always fascinated me. Our past is full of tales that have become movies, books and the topic of conversation. I hope to make this a series of articles about great trials and great trial lawyers. One such lawyer followed Wyatt Earp and his brothers into an Arizona courtroom. The Earp's chose a colorful and skilled trial lawyer, Thomas Fitch, Attorney At Law.

Fitch founded the Prescott, Arizona Amateur Dramatic Club. One can only guess whether his acting pursuits effected Wyatt Earp’s decision to hire Mr. Fitch to defend him in the infamous “Gunfight At The O.K. Corral” trial. O.K. Corral Trial

Mr. Fitch's credentials are revealed in the following biographical note published in 1892:

THOMAS FITCH, an eminent lawyer of the Pacific coast, and one whose reputation extends throughout the country as an orator and brilliant advocate, hails from the Empire State. He was born in New York City in 1838, the son of a merchant of that place. Six or seven generations of his ancestors were natives of New England. Sir Thomas Fitch, one of his progenitors, was Governor of Connecticut when it was a colony.

Thomas attended school in Massachusetts until he was fifteen years old. In 1855 he went to Milwaukee, Wisconsin, and after remaining there five years he came to the Pacific coast, landing here in 1860. He read law in the office of Shafter, Heydenfeld & Gould, and was admitted to the bar of the Supreme Court of Nevada in 1863, after which he engaged in the practice of his profession. The young lawyer’s abilities were soon recognized, and he was brought to the front in political circles. He was elected Representative to the Legislature of California in 1863; a member of the Constitutional Convention of Nevada in 1864; District Attorney of Washoe County, Nevada, in 1865 and 1866; and a Representative to Congress from Nevada in 1868. He was attorney for Brigham Young and the Mormon Church in 1871, and retained the position several years. In all probability he better understands the inside history of the great apostle and the Mormon Church than any other man outside the church.

Mr. Fitch subsequently went to Arizona, and in 1879 was elected to the Legislature of that Territory.

He is a staunch Republican, and in every campaign takes an active part on the stump, his name and fame as an orator being well-known in every hamlet throughout the Pacific coast.

During his early experience in law, Mr. Fitch had a large criminal practice. More recently, however, he has given his attention to mining litigation and equity practice. For the past twenty-eight years he has been engaged in his profession in California, Nevada, Utah and Arizona, about half that time in this State.
Transcribed by Donna L. Becker. Source: “The Bay of San Francisco,” Vol. 2, Page 475, Lewis Publishing Co, 1892.

Whether you agree or disagree with the result (or enjoyed any of the movies depicting this event ) of the trial, it is clear that the right to effective counsel is not new. Even in the Wild West, the rule of law sometimes prevailed over a six gun blazing on a dusty, narrow street.