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Author Topic: Legal Writing/Appellate brief  (Read 1075 times)

Dicta

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Legal Writing/Appellate brief
« on: December 31, 2004, 11:24:39 PM »
Wrote a memo re does client have COA for lack of informed consent if a physician does not advise of ANY risks of a prescription drug which is deemed proximate cause of patient's death.
Argued yes, there is COA based on Tn medmal statute and some common law. There was conflicting Tn case law in that some courts addressed LOIC as battery, but most (especially Tn Sup Ct) addressed LOIC as sounding in negligence....
Anyway, now we have to write appellate brief to Tn Sup Ct. Client has lost at trial level and appellate level b/c court says LOIC for prescription drugs sounds in battery, not negligence.
Ok, the folks who get to argue to Tn Sup Ct for client have their case made out for them.
How do I argue for the physician when I know (and Tort's professor has made it clear) that in TN LOIC sounds in negligence......opinions?
Am I missing something really obvious here on how to present this (losing) argument? I know it is supposed to be about the writing and not the law, but this just rubs me the wrong way....
Until you go too far, you will never know how far you can go.
TS Eliot (poorly paraphrased by myself)

rapunzel

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Re: Legal Writing/Appellate brief
« Reply #1 on: January 14, 2005, 05:05:27 PM »
Wow, I can't decode your acronyms.

rapunzel

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Re: Legal Writing/Appellate brief
« Reply #2 on: January 14, 2005, 05:38:59 PM »
Hmmm, it would be lovely if you had an arguement that it was an intentional tort, but if the state supreme court insists that it sounds in negligence, then you must argue there.  If you can't find any Tenn. case law with similar facts that comes down on the doctor's side, that would be problematic.  I'd look for cases where the courts have drawn a legal line in that sand by not finding proximate cause.  Preferably in your jusrisdiction, but look outside the state too.  All you need is to kill one element.  This is my general advice without seeing the hypo.  Also, unless the author of the vehicle is a complete idiot, there will be caselaw that helps you somewhere.

Slyone

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Re: Legal Writing/Appellate brief
« Reply #3 on: January 15, 2005, 09:20:05 PM »
Thanks Rapunzel. What is odd is that the trial court cites PA law when we have case law in TN that differs....Perhaps she thinks we are idiots.....
Anyway, I have found lots of case law from PA that addresses why LOIC needs to evolve into a negligence action, rather than battery.
So, I am assuming that is why she chose PA law as controlling.....Anyway, as the doctor I have several TN cases cited in the opinion that are more "gap fillers" than anything else.
At this point, it just doesn't matter as much as it used to...KWIM?
Thanks again.


Hmmm, it would be lovely if you had an arguement that it was an intentional tort, but if the state supreme court insists that it sounds in negligence, then you must argue there.  If you can't find any Tenn. case law with similar facts that comes down on the doctor's side, that would be problematic.  I'd look for cases where the courts have drawn a legal line in that sand by not finding proximate cause.  Preferably in your jusrisdiction, but look outside the state too.  All you need is to kill one element.  This is my general advice without seeing the hypo.  Also, unless the author of the vehicle is a complete idiot, there will be caselaw that helps you somewhere.
If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.
Oliver Wendell Holmes

Slyone

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Re: Legal Writing/Appellate brief
« Reply #4 on: January 15, 2005, 11:10:58 PM »
I thought the "issue" was whether this sounded in battery or negligence......
If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.
Oliver Wendell Holmes