Practice Luckless Law
“ Blest are those
Whose blood and judgement are so well commingled
That they are not a pipe for fortune’s finger
To sound what stop she please.”
- Macbeth I, 7
The effort to avoid problems on appeal begins in the trial court. While neither litigators nor appellate practitioners can command the judgment of Courts of Appeal, they need not rely on luck alone if they plead well with the appeal in mind. Below are two examples of large verdicts lost on appeal and the lessons we can learn from them to defer the need for luck.
· In Leverette v. Tennessee Farmers Mut. Ins. Co., No, M2011-00264-COA-R3-CV, 2013 WL 817230 (Tenn. Ct. App. Mar. 4, 2013), the trial court awarded the plaintiffs in a car wreck case $1.2 million in compensatory damages and $500,000 in punitive damages against an insurance company under the tort of bad faith. The Court of Appeals reversed and vacated the full award, holding that the plaintiffs’ Complaint failed to allege liability under Tenn. Code Ann. § 56-7-105—the “bad faith penalty” statute—that provides the exclusive remedy for recovery for insurance claims made in bad faith.
Lesson: plead under the correct statute (especially if a statute provides the exclusive remedy for a claim.)
· In Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 526 (Tenn. 2008), the trial court awarded approximately $13.4 million in punitive damages to the mother of an infant who died from injuries caused by a defective seat in her minivan, as well as $2.5 million for negligent infliction of emotional distress (“NIED”) and approximately $6.6 million in related punitive damages.
The Court of Appeals reversed the $2.5 million for NIED and the $6.6 million in related punitive damages, holding that the plaintiffs failed to meet their heightened proof requirements for “stand-alone” emotional injury claim where there was no accompanying physical injury because plaintiffs failed to provide any expert proof regarding the alleged severe emotional injury
The Supreme Court of Tennessee agreed with the Court of Appeals’ reasoning and affirmed the reversal.
Lesson: be sure to present the proof that is necessary to establish each element of your claim.
These are just two examples of the myriad ways practitioners can make their own bad luck on appeal. Don’t do that. Practice luckless law. Begin preparing your appeal at the trial stage. Having tried over 150 cases myself, I know this is easier said than done. But careful preparation for an appeal must begin at trial.
