Memphis Injury Lawyer Blog

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

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.

Many years ago when I was a Memphis "baby trial lawyer", I met my first serial killer, George Howard"Buster" Putt. As is the case with many lawsuits, this one took many twists and turns. You see, Mr. Putt had brutally murdered five Memphis residents in 29 days. This resulted in the State of Tennessee, Shelby County and the City of Memphis offering rewards in varying amounts for the arrest and conviction of a suspect. The way that this criminal matter morphed into a civil action for damages is unparalleled in my thirty years of experience in the practice of injury trial law.

On September 11, 1969, Putt in an apartment house at 41 N. Bellevue in downtown Memphis. Wayne Armstrong, soon to become my client, heard a commotion from a room adjacent to his. Specifically, Armstrong heard a woman's screams. He jumped out of bed and grabbed his trusty .38 caliber snub nosed revolver. Throwing open the door to his own apartment, Armstrong ran almost into Buster Putt who was covered in blood and was just leaving the apartment of his last victim, Christine Pickens. Pickens was a receptionist for a dentist in downtown Memphis. As with his other victims, Putt had sliced her to ribbons.

Armstrong pursued Putt out of the building clad only in his boxer shorts. Once the chase hit Madison Avenue, several other men joined chase and Armstrong began to blaze away at Putt with his short barreled revolver while running down the middle of the street in his undies.Putt was not hit by the hail of gunfire. He jumped over a fence and after tumbling down onto what is now an Interstate highway, he was apprehended by the Memphis Police Department.

During the 29 day reign of terror and confusion, three separate rewards were posted by various government agencies for the capture of the "crazed sex killer". George Howard Putt went to prison and I went to court as the parties who participated in the chase could not agree on how the rewards were to be divided, if at all. Suffice it to say, this remarkable story made for some interesting courtroom moments. This baby-faced deviant had one thing in common with others of his ilk. He had cold dead eyes. I shall never forget those eyes.

According to the Memphis Commercial Appeal, there were 11,033 violent-crime incidents reported in Memphis in 2008. As a Memphis trial lawyer, this statistic is not at all surprising to me. As a resident of Memphis, I too have been burglarized and vandalized. In response to the increases in crime over the last few decades, Tennessee, along with many of her sister states, have enacted the Criminal Victim's Injury Compensation Act. Last year the fund paid out over $13,600,000 for injuries and costs associated with crime victim's losses. The act, which provided these payments, was amended about 9 months ago to include some new areas of assistance.

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.

The United States Supreme Court in the case of Wyeth v. Levine, handed down a decision on March 4, 2009, which denied the drug manufacturer's defense that federal regulations completely overruled (preempted) Vermont state injury law claims filed by consumer Diana Levine. Levine, who was a musician, suffered amputation of a part of her arm because of complications from an injection of the medication called Phenergan, which is a common drug used to treat nausea, that was injected into her arm by a method called IV push .

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.

As a Tennessee trial lawyer, I try to keep up to date on events that impact not only my clients, but my profession, as well. An article today referred to an alleged "crisis" resulting from attorney's fees in Nursing Home cases, caught my attention. The article urges "tort reform" because out of state lawyers are supposedly filing cases in Tennessee because this is a more favorable environment. The article also makes the statement, without any supporting reference, that lawyers make huge in fees by over-stating the nature and extent of the injuries to our elders. We have now heard the rhetoric. Now for some facts in this important matter.

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.

In Memphis, the largest volume of both civil and criminal cases are filed in General Sessions Court. Trial lawyers in Tennessee find that the exact nature of the cases that are handled in this Court, may vary from county to county. In Shelby County, because of the volume, the General Sessions Court has been divided into two different sections both of which are managed by one Clerk of the Court, Mr. Otis Jackson. However, in other areas of Tennessee most of the cases are handled by a unified General Sessions Judge and Court.

Shelby County General Sessions Civil Division handles lawsuits involving less than $25,000.00 in controversy as well as having the exclusive duty to hear actions to change the possession of real estate. These actions are called Forcible Entry and Detainer actions or FED for short. Emergency commitments are also heard here. This court is located in the Shelby County Courthouse at 140 Adams.

The Shelby County General Sessions Criminal Division decides misdemeanors, felony arraignments and preliminary hearings. An arraignment is a hearing to determine, generally speaking, if a person has counsel and to set bond. A preliminary hearing is to determine if a crime has been committed and if the accused, more probably than not, committed the crime. this court is located at the Criminal Justice Center at 201 Poplar.

If this finding is made, then the case moves to Shelby County Criminal Court for final resolution. However, a preliminary hearing can be waived by the accused.This is sometimes done as a part of an insanity defense.All of the hearings in both Divisions of court are heard by a judge who is sitting without a jury. As this is the court that most of us will be touched by at least once in our adult lives, close attention should be given to the judicial candidates at each election.

Emotions run so high in disputes over child visitation that violence can erupt during these confrontations. In Tennessee, the time that both the custodial and non-custodial parents are allocated with a child is now referred to as "parenting time". In fact, in Tennessee and Memphis family law matters, the term custody has been replaced by designating one parent as the "primary residential parent". Sadly, as one of our retired and now deceased judges, Hon. Wyeth Chandler, used to comment: " It's often like two dogs fighting over one bone."

There is much that can be done outside of the courtroom to resolve these thorny issues. First and foremost, the parties should try their best to sit down and put their own personal issues aside while concentrating on what is in the child's best interests. If parents were not divorcing and still lived together in one home, hopefully that is what they would do in the first place. Memphis family and divorce lawyers often will sit down with their client's in an attempt to do just this before going to war when a truce would better serve their clients needs. Additionally, mediation has become a cost efficient method to bring the parties together on parenting issues. I have acted as mediator for many years in a number of these disputes. Having the perspective of both a divorce lawyer and a mediator has allowed me to come to a conclusion.

Absent child or sexual abuse, most of these battles are less about the welfare of the kids and more about the parents' competing needs. Secondarily, the only one who wins in these battles is the lawyer. In an attempt to throw water on visitation related fires, the courts now require mediation within 120 days after a case is filed. Also, the parties must either agree on a Permanent Parenting Plan or submit to the Judge, for his or her approval, their own versions of a Plan. While the completion of this long and involved document hs increased the cost of divorce cases, it is intended to forestall future problems by providing for all of the expected future needs of the children.

A part of the Plan is a provision to select a method of dispute resolution respecting the children or other issues. Court is always there and , in my opinion, should be considered as the last option. Ask you lawyer, counselor or minister for a recommendation as to who could best mediate your divorce or visitation case. It may be an answer that will save you and your children from needless strife. It can also save you a fortune in attorney's fees.

Each year the courts in Memphis and all of Tennessee are jammed with persons who seek the advice and aid of trial lawyers. Whether the case goes to trial or not does not lessen the importance of following orders of the Court. While being jailed for contempt of court is not commonplace, it does occur with regularity. For example, a Knoxville woman was recently jailed for her refusal to abide by a Court Order involving parenting time.

As a trial lawyer, it is my ethical duty to always counsel my clients to obey the orders of the Court. Disobedience of these orders is not the way to challenge a ruling that one may find to be improper. From almost any decision, a person can appeal to the next higher court. Many times I have heard judges say that they have made the best decision that they can and that if either party is unhappy, then the displeased person can seek an appeal to the next higher court. However, the story of the woman in Knoxville caused me to consider whether or not Tennesseans really understood all of the consequences of willfully refusing to abide by a judge's decision.

In Tennessee, there are generally two kinds of contempt of court, civil contempt and criminal contempt. The difference between the two can turn on where and how the offensive conduct happened and the type of consequences that are available for the Judge to use. Tennessee Code Annotated, section 29-9-102 defines the breadth of behavior that may be the subject of a perrson being held in contempt:

The power of the several courts to issue attachments, and inflict punishments for
contempts of court, shall not be construed to extend to any except the following cases:

(1) The willful misbehavior of any person in the presence of the court, or so near
thereto as to obstruct the administration of justice.
(2) The willful misbehavior of any of the officers of such courts, in their official transactions.
(3) The willful disobedience or resistance of any officer of the such courts, party,
juror, witness, or any other person, to any lawful writ, process, order, rule, decree,
or command of such courts.
(4) Abuse of, or unlawful interference with, the process or proceedings of the court.
(5) Willfully conversing with jurors in relation to the merits of the cause in the
trial of which they are engaged, or otherwise tampering with them.
(6) Any other act or omission declared a contempt by law.

I think that it fair to say that no one should spit into the wind, or tug on Superman's cape, nor commit any of the above acts. Fortunately, most Judge's in my experience do not want to exercise these powers if they can avoid it. However, it can and does happen. Make sure that it doesn't happen to you, but if this fate should befall you, seek out an attorney who is very familiar with this area of the law as well as the jurisdiction in which the contempt has occurred.

If you are injured in a car wreck; have a contract dispute that winds up in court; or are an accused in a criminal case, a Memphis or Tennessee trial lawyer could not only represent you, but could also be a member of your jury. That is, if the trial lawyer doesn't have a bad case of body odor or if perhaps he or she may have already formed an opinion on the case. In a recent Massachusetts appellate court ruling, the trial judge was upheld for removing a juror because she had a case of felony body odor:

"There was a juror seated in seat No. 10, juror 6-5, . . . who I'd made inquiry of earlier. And I just want the record to reflect, I guess, to be blunt, [the juror], for whatever reason, had some very bad, I guess to be blunt again, body odor, which was extremely strong, and I was able to detect in my lobby, as was the clerk, which is a personal matter for that potential juror, but for the fact that her personal problem was [of] such a magnitude that other jurors who had already been picked . . . either by act or words had indicated discomfort with that problem." I know that this humorous example is extreme, to say the least, but some rather wild excuses have been tried in several cases both in Memphis trials and around the country.

In the Chicago R. Kelly trial, let's see what some creative citizens tried:

1. I have a teenage daughter. Several axed jurors provided this explanation for why they couldn't give Kelly a fair trial. "I would have a hard time see anything involving a child without thinking of my child," one man said.
2. I save lives. An oncologist was excused from duty after he told the judge that jury service would create a logistical nightmare for his patients.
3. I'm a cop One Niles police officer lasted only about two minutes in the interview room before he was dismissed because of his profession.
4. I'll change my vacation plans. Overeagerness to serve on the jury is a definite red flag to attorneys. When one man offered to rearrange a trip to see his parents, the prosecution bounced him for being starstruck.
5. I'm getting married! The judge dismissed one woman whose wedding was set for the end of June. He didn't believe she could concentrate on the trial amid all the pre-wedding prep. The woman, who sported a nice size diamond on her left hand, looked thrilled to be released.
6. Please call my mom When one juror failed to show up for service, deputies called his house and his mother answered. She told the court that she didn't know where her son was and that he hadn't been "right" since he was shot in the head a while back. The judge and attorneys agreed to let him off the hook.
7. I blame R. Kelly for Sept. 11. When the judge asked one prospective juror about his feelings regarding Kelly, he cryptically answered: "R. Kelly may have led the Taliban in attacking us on 911, but you can't prove it." You're right, we can't. In fact, we're fairly certain that no one has ever tried.

Juror selection or voir dire ( latin for "speak the truth") is probably the single most important part of trials. It is an art and not a science. The pool of potential jurors is first qualified for service based upon the language of the new statute. The Shelby County Jury Commissioner, Clyde "Kit" Carson, administers the methods used to select a fair cross-section of those who are included as potential jurors for each term of both civil and criminal courts. We are fortunate to have such a knowledgeable and dedicated public servant. Kit has, as a result of years of experience, heard every possible excuse. Suffice it to say,that if you attempt to shirk your duty (and privilege) of jury service with the old excuse that "My dog ate my notice to serve." you will face not only our commissioner but also a Judge. Each panel is examined by a sitting Judge whose duty it is to call the balls and strikes concerning both the qualifications of persons to serve, as well as the valid exemptions from jury service. By the way, it is a crime in Tennessee to ignore your notice to appear for jury service.

Trial lawyers, parties to lawsuits and the public at large, often hear about our crowded courtrooms and the "huge jury verdicts" that are handed down in our city and state. Frequently, these comments are followed by proposals to alter the jury system. Proposals that call for changes in the method and manner by which our courts are run and the way in which personal injury and death cases are evaluated by our neighbors who sit on Circuit Court juries.

As a Memphis trial lawyer, I can tell you that those who urge these changes are either miss-informed or who have a different agenda. But please, don't take my word for this thought. Instead, let us do something that is novel and unheard of in the news reports on this topic. Let's look at the facts.

Each year, as we recently reported, the Tennessee Administrative Office of the Courts issues an Annual Report of the filings and dispositions of cases in our state. It is also broken down by county.

In 2007 through 2008, 62,204 cases were filed throughout Tennessee and 61,890 cases were disposed of by the Circuit Courts. this indicates to me that there is not a tidal wave of filings as we are resolving almost as many old cases as there are new cases filed. Of these disposed cases only 351 matters actually went to trial by jury. Approximately 11,500 of the cases disposed of were probably personal injury or death cases that did not involve a claim of medical negligence or in other words approximately 18.5% of the cases. However, the most interesting figure for Shelby County is that only 22 personal injury cases went to trial in 2007-2008.

The average verdict returned by our juries was $89,260.00. And no, I did not misplace a comma nor omit a zero. In the law there is a latin phrase: Res Ipsa Loquitor. In english, this translates into "The thing speaks for itself." In this case, the facts speak for themselves. I rest my case.

When a new client approaches me to handle their Memphis personal injuries resulting from a careless Tennessee truck driver, I always try to fully and carefully investigate each matter personally. Sometimes, this involves more than just going to the scene in order to get the facts "in my head". Of course, the earlier that the investigation is begun the better for a Mid South person who has suffered a personal injury.

I can guarantee you that the trucking company will have someone on the scene to protect their interests before the tires have stopped smoking. However, since the early 1990's cars and trucks as well have a device that is essentially the same as the "little black box" that is installed in commercial aircraft. For example, the following video illustrates not only the importance but the value of a thorough investigation:

Technology can help a careful analysis of a crash to focus on the issues of fault and the responsible parties for that fault. However, the "black box" is not the only tool that is available to a well prepared and knowledgeable trial lawyer. Since September 11, the Department of Homeland Security (nationally) and the Tennessee Department of Transportation (locally) have installed literally hundreds of video cameras across our roads and highways. In Tennessee, the Smartway program has provided access to a real time record of crashes that can be accessed to help prove a case. Remember though, these videos are not kept forever, so an injured person must move swiftly in order to protect their future safety and security.

In late 1972, President Richard Nixon and Chief Justice Warren Burger conferred via telephone on two cases pending before the United States Supreme Court on which Burger sat at that time. For trial lawyers, whether it be in Memphis, Tennessee or elsewhere, such conversations are completely inappropriate. The bench, the bar and the public have all suffered harm from the perception that lawsuit deals are cut in dark backrooms. I have never seen any evidence of this in my over 30 years of trying civil and criminal cases in Tennessee and the Mid South.

Now, we have evidence that the United States Supreme Court was influenced, or an attempt was made to influence, the outcome of matters pending before the Court. Miller vs. California was not decided until months after this conversation between Nixon and Burger. In the same tape recorded conversation, Nixon and Burger agreed that a decision on certain upcoming civil rights cases should be decided "as far down the road" as possible. Had something like this occurred in Memphis, it would have required both the Judge and the lawyer (Yes, Nixon was a lawyer in California.) involved to report this event to their ethics boards as a potential ethical breach of the ethics rules for both lawyers and judges. See, Code of Judicial Conduct i.e. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment.

Let us suppose, for example, that I was involved in a personal injury case which was yet to be tried by Judge Ajax. Let us further suppose that in a casual conversation with the Judge I mentioned that Shelby County would be far better off if the case was tried as far down the road as possible. Judge Ajax then agreed. What follows is a snippet of the conversation that we have just discussed between Nixon and Burger. Does this indicate fairness and avoiding even the appearance of an impropriety? You be the judge.

Listen to the tape recording

It was Tuesday. I was working the day watch in Child Delivery and Trial Practice; East Memphis Precinct. The boss is Comandante Mom. My partner is Zachary. We had left the Memphis station house at 0715 a.m. and we then proceeded to our first drop. It was a cool, clear crisp morning. The kind rarely seen in Memphis. As I watched Zach enter point Middle School, I realized that I was on solo patrol. The very thought of it made my blood run cold with anticipation. Sweat began to bead on my forehead as I ran through the rules of engagement for the rest of the watch:

Proceed from initiation point Alpha to the the Downtown Precinct. Once there gather the needed equipment for a forced entry at the Department of Safety. Then proceed to point Bravo for a deposition exercise. The final leg of today's patrol was the dangerous and minefield laced route I-240 back to East Precinct. An orderly and well planned mission, it was. But, it was not to be.

After departing point MS in route to Point Alpha, I slowed my brand spanking new MX-5 for a convoy of HumVee Mom's to pass. I felt a sudden stiff jolt from behind. Once I assured myself that it was not an RPG, I turned and saw that another vehicle, code name Zulu, had struck me from behind. I pulled onto a side trail, fully expecting Zulu to follow me so that we could exchange classified indemnity information. To my shock and awe, Zulu sped from the scene without exchanging international recognition codes.

Pulling my self together, I followed Zulu in hot pursuit until such time as I could visually confirm Zulu's license plate number; a journey of some 3 clicks. I then discontinued pursuit and signaled the M.P.'s for assistance.

As I waited for the cops. my neck, low back and shoulders began to ache. A pain began to shoot down my left arm. After completing my rendezvous with the Military Police, I proceeded to the nearest MASH unit for treatment. The MASH (BHMEC) saw me with dispatch and prescribed medications for a sprained neck and muscle spasms which were to be filled at my local drug care provider. Subsequently, after having turned in the script for fulfillment, I returned to Station Walgreen's to collect my ration.

Following 72 minutes of further investigation, it was learned that a. MASH had prescribed appropriate medications for my injuries, but the prescription as written was not in my name; b. Station Walgreen's had filled the medical order properly but in the wrong name. This error resulted in the personnel at Station W being unable to locate my ration. The results of this operation are summarized as follows:

1. There is at least one driver in Memphis being sought by the MPD for leaving the scene of an accident.
2. My MX-5 is not intended to be smashed from behind.
3. The most well trained MASH can put the wrong patient ID sticker on a prescription.
4. Miss-identifying a patient on powerful drugs can cause further injuries to the patient, or worse.
5. Memphis Injury Lawyer has days when he should have stayed in bed.

Over and Out.

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.

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.

I find that most of my clients are as confused about the structure and organization of our court system as I am about the physics of rocket science. While the inner working of a court is a bit hard to follow, I can assure you that it is not rocket science. This is the first part of a series about our courts and a civil lawsuit from the bottom of the totem pole to the top with an occasional interlude in the wonderful world of lawyering. To help my readers understand each step of this meandering trail, I am including a diagram of the courts (Court Diagram) in Tennessee as a guidepost.

One of the least considered yet most important jurisdictions in our state is that of the Juvenile Court. This court is charged with a web of child-related responsibilities that connects to many other kinds of cases. Child support and visitation; child custody (Although, it is as we shall see a misnomer.); legitimation of children; dependent and neglected kids; and unruly or delinquent children. Each of these areas deserve a separate article to explain the issues and court functions of all of these parts. However, for the time being I will just try and outline this Court's duties and powers and save the intricate details for another day/article.

Our legislature has enacted statutes (laws) that give Juvenile Court exclusive original jurisdiction over matter involving persons who are under the age of eighteen years. This means that this Court is where the matters listed above can go first even if there is not marriage of the parents involved. Also, it is important to note that some of these issues cans till be resolved in Juvenile Court even if a divorce has already been filed. As with so much in the law, the answer to where your case should be filed is highly dependent on the unique facts of your case. Having said that, Juvenile Court is designed to be a less expensive alternative to other courts that can quickly respond to child-centered issues.

We have all read in the newspapers about kids charged with crimes who are first dealt with in Juvenile Court and who may be later transferred to the adult justice system. This happens after a hearing to determine whether or not the nature of the offense and the characteristics of the child involved warrant handling as an adult in another forum like Circuit or Criminal Court. One of the biggest confusions is that depending on where you live in our great state, you may not have a Juvenile Court but instead have your kid's case handled in General Sessions Court. While this seems odd, much of the underlying justification for some place being called A or B is that the same rule of law applies equally in either court regardless of its name.

Seek the advice of an experienced lawyer in whom you can place not only your trust, but also that most precious thing: your child's future.