Introduction To The Digital Edition
In the summer of 2020, in the middle of the pandemic, the decision was made to abandon the printed version of this book and create a digital, dynamic text.
By “digital”, I mean the book would only be available on the internet. A new website and book reader was created to host and offer the book online for subscribers, and existing hard copies of the book in inventory were destroyed.
By “dynamic,” I mean that the book would be frequently updated to help the reader stay current on the state of the law. A process has been created to review new rules, opinions, and statutes and get them to readers via updates to the text within two weeks of the date of release of the rule, opinion, or statute. Thus, this book will have a “new edition” many, many times a year.
As I write this, I have no idea whether this plan will work. Time will tell.
Introduction To The First Edition
Like it or not, for better or worse, the number of civil jury trials continues to decline. A discussion of the reasons for the lack of jury trials is better left to another forum, but one of the many consequences of this phenomenon is that lawyers have an increasing unfamiliarity with the law of trial.
The law of trial is a set of rules and procedures designed to ensure that a fair trial will be conducted before a proper jury and provide an adequate record for an examination of claimed errors on appeal. One may debate the merits of many of these rules and procedures, but one cannot debate their existence or the potential consequences for the failure to understand and apply them.
The idea for this book was formed when I was trying a medical malpractice case before the Honorable James T. Hamilton in Columbia, Tennessee in the winter of 2008. While driving home on the first Friday night of what turned out to be a thirteen-day jury trial, I began to think about the numerous legal issues that arose in jury selection and during the first five trial days. I then thought about how I came to know that these issues were in fact issues, and how I learned the law of these issues. I quickly realized that my knowledge base was not from law school but arose from two separate sources.
First, my knowledge came from actually trying cases. I had the advantage of working with one of Nashville’s finest trial lawyers, the late John T. Conners Jr., who permitted me to have trial experience early in my career. Mr. Conners had a high-quality plaintiff’s practice, and therefore he frequently drew high-quality defense counsel. Thus, I had an opportunity to learn not only from Mr. Conners, but also very competent adverse counsel.
Second, my work founding and writing two monthly publications (the Tennessee Tort Law Letter and later the Tennessee Trial Law Report) meant that I was reading several hundred appellate court decisions each year. In the early years, these court opinions frequently discussed the law of trial and thus my knowledge of the field expanded.
But, I asked that night driving home, how could today’s younger lawyers learn the law of trial? Simply reading current and future case law will not do it because the decreasing number of trials results in a decreasing number of appeals on cases that have been tried. Researching prior case law is possible only if you know the issues that require research, and doing so in the middle of trial is impractical. And actually trying cases no longer provides a way to reach the requisite knowledge base because there are not enough trials for the vast majority of lawyers to learn the law.
So, in the middle of Howell v. Turner, on Saturday afternoon, March 1, 2008, I drafted the first table of contents for what has now become Tennessee Law of Civil Trial. The goal was – and is – to provide a readable, concise summary of the law of civil trial in Tennessee.
The book is designed to be used in three different ways. First, the inexperienced lawyer can pick up this book, read it cover-to-cover, and have an immediate, comprehensive understanding of the law of trial in Tennessee civil cases. Simply reading this book will not make the reader an excellent trial lawyer, but it will give the reader a solid grasp of the law of civil trials in Tennessee and thus more confidence in the courtroom.
Second, experienced trial lawyers can use this book as a source to refresh their recollection on law that was once known but has slipped away with the passage of time.
Third, both inexperienced and experienced trial lawyers can use this book as a resource in the middle of trial, to give guidance on an issue that was not identified before trial.
All three intended uses of this book require it to be concise. Lawyers do not have time to read a treatise on the law of opening statement or jury selection. Particularly for questions that arise during trial, lawyers need to be able to find the law quickly.
Thus, this book does not include a multitude of string cites. It also does not purport to give an answer to every possible question that may arise during trial. While certain evidentiary issues are discussed, the book is not a treatise on the law of evidence, that subject being left to the fine work of Neil Cohen, Sarah Sheppard and the late, great Donald Paine. Quite candidly, I cannot imagine trying cases in Tennessee without a current copy of Tennessee Law of Evidence within arm’s reach.
Finally, this book is not a trial advocacy guide. For example, it does not purport to tell a lawyer how to conduct jury selection, how to conduct an opening statement, etc. I could not help but to include a few practical suggestions and indeed have included a chapter with some practical tips on preparing for trial, but in an effort both to keep the book concise and to be true to its title, the book is largely a discussion of law.
I hope this book helps you better serve your clients.
Introduction To The Second Edition
The days are long. The years are short. It feels like it was just yesterday that I was putting the finishing touches on Chapter 21 of the first edition while sitting poolside at the La Quinta Resort in La Quinta, California. In fact, that work was done in February 2014, and the book was published later that year.
Since then, the number of civil jury trials has continued to decline. In the fiscal year ending June 30, 2018, there were only 180 jury trials in our circuit courts. The chancery courts added 48 jury trials in that year. Jury trials have dropped dramatically; in the fiscal year 2000-2001, there were 741 jury trials in circuit court and 50 in chancery court. Therefore, in less than 20 years, the number of jury trials in Tennessee state courts have dropped by more than 70 percent.
Thus, the need for a book to help lawyers readily learn (or refresh their recollection of) the law of civil trial has certainly not decreased and has probably increased since this book was first published in 2014. Likewise, in the past five years, multiple decisions have been released that shed more light on the law of civil trial – decisions that trial lawyers need to be able to access without cumbersome and over-inclusive computerized legal research.
I intend that the second edition of Tennessee Law of Civil Trial will bring the reader the current state of the law of civil trial. The book remains designed to be a comfortable read, not packed with citations to every single case on every point, no matter how obscure. To be sure, those who have the need or desire to examine every single case since the beginning of time on a given point can start here and run the Westlaw, Lexis, or FastCase rabbit trails. But this book is designed to help lawyers readily anticipate and address the issues apparent in the vast, vast majority of cases, and then supplement what is found here with additional research as appropriate in a given case.
Those who are inexperienced in trial work would benefit from reading this book cover-to-cover, especially in the weeks leading up to a jury trial. Those who are experienced in trial work would find the book an easy way to refresh one’s recollection. Finally, it is my hope that the book is organized and written in such a way to provide a useable, ready reference at trial.
Other Books by John Day
Tennessee Law of Comparative Fault. Written with Donald Capparella and John Walker Wood, this book discusses the history and the substantive law of comparative fault in Tennessee. The book was first released in 1997, five years to the day after the adoption of comparative fault in Tennessee in McIntyre v. Ballentine. The book is published by Thomson Reuters and may be purchased on its website, http://legalsolutions.thomsonreuters.com/law-products/ The book was last updated in 2020.
Day on Torts: Leading Cases in Tennessee Tort Law. This book includes a summary of the leading over 300 cases on Tennessee tort law topics and thousands of other cases. The book is designed to help tort lawyers readily find the leading case on point to jump-start their legal research. It is available by subscription through BirdDog Law at www.birddoglaw.com.
Compendium of Tennessee Tort Reform Statutes. This book is updated and re-published every fall. It includes every tort reform statute since 2008. It is available by subscription through BirdDog Law at www.birddoglaw.com.