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.

Englewood Cliffs, NJ, October 22, 2009 –Unilever United States, Inc., of Englewood Cliffs, NJ, in cooperation with the U.S. Food and Drug Administration (FDA), is voluntarily recalling a limited number of tubs of Breyers®ice cream because it was MISPACKAGED and may contain UNDECLARED WHEAT. People who have an allergy or severe sensitivity to wheat run the risk of allergic reaction if they consume this product.

On a limited number of tubs, the lid describes the product as “Breyers®All Natural Cookies & Cream” ice cream, and the tub portion of the package describes the product as “Breyers®All Natural Mint Chocolate Chip” ice cream. The product inside of the tub is “All Natural Cookies & Cream.” The ingredient statement on the tub does not declare wheat, which is an ingredient of the Cookies & Cream product.

The mispackaged ice cream product was distributed in Alabama, Arizona, Delaware, Florida, Georgia, Maryland, New Jersey, New York, Ohio, Pennsylvania, Puerto Rico, South Carolina, TENNESSEE, Trinidad and Virginia through retail stores in these locations and adjoining areas. The affected product is being recalled from consumers and retailer store shelves, back rooms and warehouses.

Fear not! You Memphis calorie lovers need not forgo the delectable, tongue-pleasing treat. simply venture forth to your local grocery for a refund. The affected mispackaged product was distributed in 1.5-quart (1.41L)paperboard tubs marked with UPC # 077567254245 located on the side of the tub and in combination with “Best If Used By” dates of FEB1711GH, FEB1811GH and FEB1911GH located on the bottom of the tub.

Dare we say it? If not a refund, how about an even exchange! You gotta love it!

These results are indicative of the endemic drug problems in society as a whole and Tennessee in particular. Drug abuse cuts across economic, generational and law related lines. For example, The Bureau of Justice Statistics reports in 2007 that 73% of our fellow citizens view drug related problems as either extremely or very serious.BJS Drug Statistics. Is there an area of the law that is not impacted by the reality of these concerns? Just this week, a nine month old child was placed into state custody when the parent's home was raided and a methamphetamine lab was discovered. CA drug bust. Recently, actor Dennis Quaid and his wife are suing a hospital because their children were given a massive dose of blood thinning drugs made by Baxter Pharmaceuticals.. The product liability lawsuit seeks more than $50,000 in damages and claims Baxter was negligent in packaging different doses of the product in similar vials with blue backgrounds. The lawsuit also says Baxter should have recalled the large-dosage vials after overdoses killed three children at an Indianapolis hospital in 2007.

While these two events are at the opposite ends of the legality spectrum, both point to a logical conclusion. Legal and illegal drugs severely impact upon children in all areas of their lives and, sadly, sometimes causes their deaths. I can offer no solutions to these tragedies. We can all only hope that as time passes, a solution can be fashioned based on common sense and rule of law. I am going to dig further into this knotty issue and I will try and write on the impact of drug use or abuse on divorce and custody cases. More to follow.

Whether or not Heene is guilty as a matter of law is, in the grand scheme of things, of little lasting import. What does matter are convictions of innocent persons based upon faulty evidence. What follows are statistics gathered by
The Innocence Project (weblink):

There have been 244 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 34 states; since 2000, there have been 178 exonerations.

• 17 of the 244 people exonerated through DNA served time on death row.

• The average length of time served by exonerees is 12 years. The total number of years served is approximately 3,077.

• The average age of exonerees at the time of their wrongful convictions was 26.

Races of the 244 exonerees:

146 African Americans
70 Caucasians
21 Latinos
2 Asian American
5 whose race is unknown

• The true suspects and/or perpetrators have been identified in 104 of the DNA exoneration cases.

• In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs).

• About half of the people exonerated through DNA testing have been financially compensated. 27 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state.

Leading Causes of Wrongful Convictions
These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. For more than 15 years, the Innocence Project has worked to pinpoint these trends.

Eyewitness Misidentification Testimony was a factor in 74 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions.

Unvalidated or Improper Forensic Science played a role in approximately 50 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – have never been subjected to rigorous scientific evaluation. Meanwhile, forensics techniques that have been properly validated – such as serology, commonly known as blood typing – are sometimes improperly conducted or inaccurately conveyed in trial testimony. In other wrongful conviction cases, forensic scientists have engaged in misconduct.

False confessions and incriminating statements lead to wrongful convictions in approximately 25 percent of cases. In 35 percent of false confession or admission cases, the defendant was 18 years old or younger and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings. More than 500 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

Snitches contributed to wrongful convictions in 16 percent of cases. Whenever snitch testimony is used, the Innocence Project recommends that the judge instruct the jury that most snitch testimony is unreliable as it may be offered in return for deals, special treatment, or the dropping of charges. Prosecutors should also reveal any incentive the snitch might receive, and all communication between prosecutors and snitches should be recorded. Fifteen percent of wrongful convictions that were later overturned by DNA testing were caused in part by snitch testimony.

Events such as these are not isolated nor absent from the Tennessee criminal justice system.

Prosecutors dropped charges against a former Tennessee inmate who spent 22 years on death row before new evidence cast doubt on his guilt. The district attorney said DNA tests presented “a reasonable doubt” about whether the former inmate, Paul House, 48, acted alone in the murder of a woman near Knoxville in 1985. At the time of the arrest Mr. House was not only 26 years of age, but DNA testing did not exist. Presumed Innocent is not a catch phrase. It is rather a safety valve that guards us all from hasty judgments and overly emotional jury verdicts.

This competition is based upon a constructed set of facts and law under the auspices of The American Mock Trial Association (www.collegemocktrial.org).This organization was founded in 1985 by Dean Richard Calkins of Drake Law School. AMTA serves as the governing body for intercollegiate mock trial competition. Through engaging in trial simulations in competition with teams from other institutions, students develop critical thinking and public speaking skills, as well as a knowledge of legal practices and procedures. AMTA sponsors regional and national-level competitions, as well as providing interesting and complex case materials for academic use. AMTA also sponsors mediation simulation tournaments.

These young people most of whom aspire to becoming members of the bar are nothing short of amazing. Their dedication and enthusiasm is inspirational to me. It is amazing to work with college students on things such as how to present a case at trial or the Rules of Evidence and to observe that their skill level surpasses some practicing attorneys that I know. In April of 2010, the National Intercollegiate Mock Trial Championships are going to be held here in Memphis. The best and the brightest of these collegiate teams (U. C. L. A.; Harvard; Columbia; Stanford, by way of example only) will, beginning this month, begin competing for slots at the national tournament in April.

Hosting a national tournament of over 60 teams is no small undertaking. Undertaking to coach and guide future attorneys is, in my opinion, a way to give back to a profession that has been very good to me for over 30 years.

Last year over 30,000 divorce cases were filed in Tennessee. If you look backward in time, the statistics show that this number is consistent with the trend that began several years ago. Perhaps, given the fact that divorce has become more instead of less expensive, a legislative approach may be required. According to Tennessee law, the court has the authority to award a party all or part of his or her divorce attorney's fees and costs of litigation. However, the modern trend, it seems, is to award these expenses in limited circumstances. One can only wonder as to the impact of a change in the law requiring a Court to award a party all of their attorney's fees after the date of a mediation if the other party could be found to have not negotiated in good faith.However, one of the hallmarks of mediation is that the process is confidential such that the positions of either party are not to be disclosed to the Court if the mediation fails and the case proceeds to trial. That's the rub.

Since over 50% of marriages fail in the United States, new methods for ending this emotional and financial arrangement are coming to into vogue. Collaborative divorce is the newest method of alternative dispute resolution in family law. It can best be described as a method of practicing law in which the lawyers for both sides (parties) agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. All of the people involved commit themselves to achieving a negotiated outcome. It is agreed that no litigation will be commenced during the negotiations. www.collaborativedivorce.net

In reality this is nothing new. Most family lawyers would rather negotiate than litigate. It was standard practice for many years for both lawyers to meet to try to identify the issues in dispute, if nothing else. Then we entered the "My lawyer can beat up your lawyer" era. Now it seems that civility and common sense have become so wounded that neither ideal can survive a divorce where there is much at stake. The only way to change this is one lawyer at a time; one case at a time; and most importantly- one client at a time.

But, are they "our products"? While Phillips distributes these electronic devices, can you guess where they were made? Do China and Poland ring any bells? It should as the exploding fitness balls and many other products that have been discovered as being dangerous or defective have come to us from China. Remember the adulterated infant formula? The price range and sellers were Wal-Mart, Target and Safeway stores nationwide and online at Amazon.com between July 2006 through March 2009 for between $60 and $140.

In the event that you are working out on a fitness ball and brewing a cup of coffee, stop immediately! While no events have been reported yet in the United States. The firm has received 17 reports of incidents in Europe, including six reports of minor personal injury involving first degree burns to the hands, arms and abdomen. If you fit this profile, please consult an attorney who can protect your rights and your future.

Unfortunately, the inflation instructions were written in a way that could cause an unintended over inflation. The danger here is that if the fitness ball is used after being over inflated that it could explode thereby dumping the erstwhile athlete onto the floor. As these have been sold since 2000 in department stores, it is quite likely that this product marketed under the names "Everlast", "Valeo" and "Body Fit" could be quietly waiting in your home or gym to injure you.

To see the complete recall information go to:
www.cpsc.gov/cpscpub/prerel/prhtml09/09196.html

Rhode Island topped the list, followed by Florida, which had held the No. 1 slot in 2007. Incidents of fraud in Rhode Island were three times what would have been expected given the number of loans made last year, the report said, although the authors said they weren't sure why.

Next on the list were Illinois, Georgia and Maryland, which landed on the top-10 list for the first time in the study's 11-year history, up from No. 15 in 2007. The State of Rhode Island had the highest percentage of fraud on tax returns and financial statements. Not surprisingly, the FBI investigates mortgage fraud in two distinct areas: Fraud for Profit and Fraud for Housing. Fraud for Profit is sometimes referred to as "Industry Insider Fraud" and the motive is to revolve equity, falsely inflate the value of the property, or issue loans based on fictitious properties. Based on existing investigations and mortgage fraud reporting, 80 percent of all reported fraud losses involve collaboration or collusion by industry insiders. Fraud for Housing represents illegal actions perpetrated solely by the borrower. The simple motive behind this fraud is to acquire and maintain ownership of a house under false pretenses. This type of fraud is typified by a borrower who makes misrepresentations regarding his income or employment history to qualify for a loan.

The FBI lists several areas of suspicion:

MORTGAGE FRAUD INDICATORS

Inflated Appraisals
• Exclusive use of one appraiser

Increased Commissions/Bonuses - Brokers and Appraisers
• Bonuses paid (outside or at settlement) for fee-based services
• Higher than customary fees

Falsifications on Loan Applications
• Buyers told/explained how to falsify the mortgage application
• Requested to sign blank application

Fake Supporting Loan Documentation
• Requested to sign blank employee or bank forms
• Requested to sign other types of blank forms

Purchase Loans Disguised as Refinance
• Purchase loans that are disguised as refinances
requires less documentation/lender scrutiny

Investors-Short Term Investments with Guaranteed Re-Purchase
• Investors used to flip property prices for fixed percentage
• Multiple "Holding Companies" utilized to increase
property values

As the recession deepens, both real and imagined violations are likely to be investigated. Remember, if you are contacted by an investigating agency, a financial institution, or a lender, seek the advice of an experienced attorney in this area.

Maytag, Jenn-Air, Amana, Admiral, Magic Chef, Performa by Maytag and Crosley brand side by side and top freezer refrigerators

Between 2003 and 2005 the CPSC reports approximately 378,700 home fires that resulted in 2740 deaths; 13,090 injuries and over $5.61 billion in property damages related to these catastrophes.In this particular case both side-by-side and freezer over refrigerator models are included, but not freezer below refrigerator types.

Do not delay in determining whether or not you have one of these time bombs in your home or business. If you have had a refrigerator fire, the statute of limitations in Tennessee would allow a lawsuit for property damages to be filed within 3 years after the fire event. To paraphrase Smokey The Bear, only you can prevent a refrigerator fire. Here is where the serial number is located to investigate the refrigerator you may own:

An article in a motorcycle enthusiast magazine recently commented:

Although Suzuki GSX-R1000s tend to be bullet-proof mechanically and can stand tens of thousands of miles of hard use, the finish isn’t quite as good as the competition. The paintwork on the panels and engine casings is thin and the GSX-R1000K7’s new twin pipes look particularly cheap – although Suzuki is probably assuming people will get rid of them anyway in favour of replacement cans.

Whether or not the bike is truly "bullet-proof mechanically" is reality or salesmanship really doesn't matter in the face of this recall.The details of the recall can be found at the Consumer Affairs website. Dangerous products cases are always a challenge.If you have suffered a loss due to this bike's failure, there may be a way to recover your losses. Contact a knowledgeable trial lawyer without delay!

These amendments include:

1. A “relative” of a deceased victim (as defined under the Criminal Injuries Compensation Act) may be reimbursed for funeral and burial expenses that the relative has incurred due to the victim’s death. This is in addition to the legal representative of the victim’s estate who may file on behalf of the estate.

2. Effective for crimes occurring on or after July 1, 2008, eligible incidents
upon which compensation can be based now include when the crime
involved the failure to stop at the scene of an accident in violation of §
55-10-101 which directly resulted in serious bodily injury or death to
the victim and the evidence shows that the operator of the motor vehicle
knew or reasonably should have known that death or serious bodily
injury had occurred.

3. Effective for crimes occurring on or after July 1, 2008, any awards
made for medical or medical related expenses, including but not limited
to dental, chiropractic, hospital, physical therapy and nursing services,
shall be made in an amount not to exceed 75% of the billed charges if a
sum is available to do so after payment of expenses due the victim or
claimant (e.g. lost wages, permanent impairment, etc.).
If the program makes payment equal to 75% and the provider accepts
the payment, the provider must accept the payment as payment in full
and shall not bill any balance to the victim or claimant. This provision
does not prohibit the provider from seeking reimbursement from the
victim or claimant for the difference, if any, between the 75% and the
amount paid by the division under this provisio

If you think that you or a loved one may be eligible for some compensation, for example, the cost of a forensic rape test, go to the State Of Tennessee website for an excellent FAQ page. Another way to review your options, is to consult with an experienced injury lawyer. We can help.

A product such as these, under Tennessee law, is unreasonably dangerous if a consumer's reasonable expectation of the intended use of the product is not met due to some inherent defect in the product. Dirt Bikes are used not only for off road travel but also are used in competition. These specialty connecting rods and crankshaft assemblies are marketed to those who are enthusiasts of this sport. It is not hard to understand that, even when used according to manufacturer's instructions, these parts are going to be put to use in conditions that are far more challenging than simple street riding.

According to a study posted by the Centers For Disease Control in 2003, 4,769 people were treated for Moto-Cross injuries and 19,031 people were treated in Emergency Rooms for off-road injuries. Still more startling is the fact that from 2001 through 2004, 29,800 riders were injured each year from this activity. By contrast a statistical study in the Journal of Pediatrics reports:

From 1993 through 2000, an estimated 22 661 (95% confidence interval [CI]: 16 668–28 654) or 4.9 per 100 000 (95% CI: 3.6–6.2) children ≤ 14 years old with nonfatal FA injuries were treated in US hospital EDs. Assaults accounted for 41.5% of nonfatal FA injuries, and unintentional injuries accounted for 43.1%. Approximately 4 of 5 children who sustained a nonfatal, unintentional FA injury were reportedly shot by themselves or by a friend, a relative, or another person known to them. During this period, 5542, or 1.20 per 100 000 (95% CI: 1.17, 1.23), children ≤14 years old died from FA injuries; 1 of every 5 children who were wounded by a firearm gunshot died from that injury. Most FA deaths were violence related, with homicides and suicides constituting 54.7% and 21.9% of these deaths, respectively. For individuals ≤14 years old, the burden of morbidity and mortality associated with FA injuries falls disproportionately on boys, blacks, and children 10 to 14 years old. Both fatal and nonfatal injury rates declined >50% during the study period.

Caution and parental supervision is critical in the pursuit of off-road motorbiking. Each year Tennessee, Mississippi and Arkansas residents are injured by riding accidents. It makes common sense to avoid the avoidable risks,such as known defective products. However, if injuries do happen, an experienced trial lawyer can investigate and advise you accordingly.

Levine won a verdict after a Vermont jury concluded that the product warnings did not adequately warn medical doctors about the irreversible effect of Phenergan which-if injected in this fashion, can reach the arteries of the human body and can cause gangrene. In the underlying case, the Vermont jury found for Levine and awarded substantial damages, medical expenses, and loss of livelihood compensation. Essentially, her musical career was wiped out, due to partial amputation of her arm. The Vermont Supreme Court affirmed the trial court jury verdict and rejected the drug manufacturer claim that the Food and Drug Administration law and regulations wiped out any state law failure to warn claim.

Justice Stevens said in the majority opinion of the Court:

“If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the Food, Drug and Cosmetic Act’s 70 year history…Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.”

The decision of the court was 6-3, with one of the six votes being Justice Clarence Thomas who stated as follows:

“Because such a sweeping approach to pre-emption leads to the illegitimate – and thus, unconstitutional – invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they ‘stand as an obstacle to the accomplishment and execution of the full purposes and objectives’ of federal law.”

This important decision creates a the financial disincentive for a corporation or drug manufacturer by virtue of the power of a jury or judge to penalize a drug manufacturer for negligent or wrongful conduct. I have represented both doctors and injured persons in matters such as these. Some may say that this ruling is quite politically liberal. For me, it stands for the purest form of constitutional conservatism, i.e. the states have a right to regulate conduct within their own borders. This is a victory for the little guy (girl) against huge corporate conglomerates. Bravo.

Fact One: This article focuses on shaping public opinion through the use of paid "opinion managers". Ms. Kristen Havner of Jarrard is a woman with a depth of political expertise and is listed as the "contact" for reply to this article. The mission of Jarrad is rather clearly set forth on its website which offers its services for opinion management, among other issues.

Fact Two: The reports compiled in Tennessee by the Administrative Office of the Courts (AOC) http://www.tsc.state.tn.us/index.htm refutes the inference that huge awards are resulting in huge attorney's fees for either in state or out of state trial lawyers. Jarrard in the article quotes a nurse from the Vanco Nursing and Rehabilitation facility in Goodlettsville to support its argument that these cases are driving down the morale of nurses and increasing the costs of care. The Goodlettsville area is in the judicial districts for both Sumner and Davidson Counties. During the 2007 to 2008 time period, according to the AOC, the average trial award in personal injury or death cases in Sumner County was $153,250 and in Davidson County was $111,551. This category of matters includes not only nursing home cases, but slip and falls; car crashes; dangerous products, etc.

Fact Three: Jury trials can only make awards to injured persons if, and only if, 12 citizens of the county where the injury happened are convinced that the greater weight of the evidence supports the injured person's case. Then, upon proper Motion, the trial Judge who heard the proof must also approve the verdict. Trial lawyers do not create cases out of thin air that result in verdicts. In these cases, a nursing home resident must have been harmed by the carelessness of the nurse or nursing home. Our system of civil justice is based upon the idea that just compensation is set by the jury and not by the lawyers. Let us not indict our neighbors for trying to be fair when exercising their sworn duty.

The ChooseCareTN Act of 2009 is being vetted by this public relations firm. The proposed legislation, if based upon the things stated in the article, is grounded on the needs of the nursing home special interest groups. Use the facts! They serve us well in Court and in the forum of public opinion.