Means What It Says?

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How many times have courts assured you that the legislature says what it means and means what it says? Personally, I’ve lost count. The notion is seared into my legal psyche. So when Tenn. Code Ann. § 29-26-122* says med-mal plaintiffs can waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors, I kinda assumed that … oh, I dunno… maybe plaintiffs could waive a defendant’s obligation to file a certificate of good faith for comparative tortfeasors.

“Not so,” says the Middle Section of Tennessee’s Court of Appeals. I just had occasion to write a brief analyzing the recent opinion in Sirbaugh v. Vanderbilt, and it was like eating soup with a fork. According to Sirbaugh, when the legislature allows plaintiffs “to waive compliance,” what that reeeeally means is plaintiffs are still “obligated to file a statutorily compliant certificate of good faith.” Square peg, meet round hole. What am I missing? COA dropped the ball on this one, IMHO. And yet, the Supremes punted. So that bit of judicial wizardry has earned its ink in the reporters. This, even though the Supreme Court just a few years earlier observed (albeit in a footnote) that there’s “no similar statutory obligation imposed on plaintiffs who amend their complaint pursuant to Tenn.Code Ann. § 20-1-119 after the original defendant has asserted a comparative fault defense.” Go figure.

*P.S. – Apparently Justia hasn’t updated its site with the most recent changes to the Health Care Liability Act. Get wit’ it, Justia! Here’s an alternative, but unfortunately there’s no direct link. Navigate to Title 29, then Chapter 26, then Section 122…

Legal Writing Webinar

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Polishing up my PowerPoint for a national CLE webinar tomorrow! It’s my first time presenting for C4CM Training & Development. And this time I’m not flying solo. More

Judicial Plagiarism

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Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick on your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.
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Happy New Year!

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Happy New Year, everyone! Hope your 2015 is full of clarity and meaning, with no splices, run-ons, or dangling participles! :-)

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Comma Drama

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Wait, so, every voter is by definition “physically disabled or … visibly pregnant or frail”?

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The Dunning-Kruger Lawyer

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I recently ran across more awesomeness from Bryan Garner. (Sorry if you’re over the Garner craze. I’m a fan, even though I don’t always agree with him.) Dunning-Kruger debilitates many professions, but I’d have to agree with Garner that we lawyers are all but intellectually paralyzed by it. In pondering “Why Lawyers Can’t Write” back in March of 2013 for the ABA Journal, Garner noted: More

Legal Writing Webinar

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If anyone’s bored around lunchtime on Thursday, 9/4/14, tune in to this webinar on legal writing, hosted by the Tennessee Bar Association.  The speaker will be yours truly! :-)

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