Archive for July, 2012

Battery, Assault and other intentional acts

Thursday, July 26th, 2012

Mississippi has very good civil case law for cases involving injuries caused by battery and other intentional torts. For instance, in most cases where an injury has occurred and negligence is alleged the case will come down to a final determination by the jury of if the Defendant was negligent but also how much the claimant and other defendants contributed to the injury, but in intentional torts the contribution aspect drops out completely because of the difference between negligent and intentional actions. This is based on a strong line of Mississippi cases summarized in Graves v. Graves, 531 So.2d 817 (Miss. 1988).

The authorities in this state and elsewhere are unanimous in declaring that the defenses of contributory or comparative negligence have no application to cases of intentional tort such as assault and battery. “The doctrine of contributory negligence does not apply to an action to recover damages for an assault and battery.” 6 Am.Jur.2d Assault and Battery § 153 (1964). “Where the defendant’s conduct is actually intended to inflict harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault; and the defense never has been extended to such intentional torts. Thus [contributory negligence] is no defense to assault or battery.” Prosser & Keeton, The Law Of Torts, 462 (5th ed.1984). See Jackson v. Brantley, 378 So.2d 1109, 1112 (Ala. App. 1979) (“It is elementary that contributory negligence is no defense to an intentional wrong.”).

Graves v. Graves, 531 So. 2d 817, 820 (Miss. 1988)

This brings up interesting questions as to what will be admissible into evidence if there is to be no argument of comparative fault by the Defendant. Evidence of most wrong acts of the claimant up until that point or other bad decisions should be excluded because they would not be relevant under MRE 401 because they do not tend to make a fact that is of consequence more probable or less probable and should be found to be irrelevant and excluded. Even if this evidence is found to be relevant, then it has a high probability of being used in an unfair way by the jury and should be filtered by MRE 403.

There may be times at trial that these issues should be brought up in an intentional tort. These times would include in arguing for a valid defense such as self defense or in the punitive phase of trial, but a court would be well within its power to nip these lines of inquiry in the bud because of MRE 402 and 403.

Sleeping 18-Wheeler Drivers and Distracted 18-Wheeler Drivers

Tuesday, July 10th, 2012

We see wreck cases at an alarming rate where one of the drivers was distracted or so fatigued that they could barely keep their eyes open. It is scary enough that the average driver is in control of a 2,000 to 4,000 pound vehicle but it is terrifying to think that an 18-wheeler driver is fatigued or looking at his cell phone screen when he is driving an 18-wheeler rig weighing in at 80,000 pounds and traveling 70 miles per hour.

Drivers of 18-wheelers are required to log their hours on the road compared to hours of sleep. This information is very important in any 18-wheeler case to show how long a driver had been up and when or where the last place he got a good nights sleep was. Without this rest these 18-wheeler owner operators become dangerous on the road.

Also many states require that drivers of any sort use hands-free cellular devices or not use cell phones at all while driving. It has been shown that the kind of distraction caused by cell-phones or on-board computers leads to slower reaction times and more crashes.

The video below shows a cbs news story on distracted driving.

New advocacy groups similar to Mothers Against Drunk Driving will seek to raise awareness about the dangers of texting while driving or distracted driving. These activities are especially dangerous when the driver is driving an 18-wheeler. Since the advent of MADD drunk driving related deaths have dropped 50 percent. A similar awareness and change is absolutely necessary in distracted driving and fatigued driving. Some studies have determined that reaction times for drivers take at least a second longer when they are using their cell phone or texting. This can translate to it taking 20 to 40 feet longer to stop, which often causes wrecks.

Giddens Law Firm honored as Law Firm of the Month

Tuesday, July 3rd, 2012

In the Premier Issue of Attorney at Law Magazine of Mississippi the Giddens Law Firm was honored as law firm of the month.

Article on the Giddens Firm in Attorney At Law Magazine. Jackson, MS

Click to see a full pdf version of the Attorney at Law Story.

The text of the article written by Lalaena Gonzales-Figueroa is below.

From the onset, conversation with attorney John Giddens
is an easy exchange that winds at a comfortable pace.
An accomplished professional whose personal injury
practice eschews the new trend of high-volume and impersonal
firms, Giddens reveals that his approach is one that consistently
yields results – both inside and outside of courtrooms.

“Our small staff facilitates clear and concise communication,
and I maintain a personal presence in each case I represent,” he
reveals. “I’m hands-on. My clients know that when they work
with my firm, they will receive vigilant and professional care
that is tailored to their cases and their needs.”

Giddens, who earned an undergraduate degree in business
management from the University of Mississippi in Oxford, had
the makings of a successful attorney at an early age. “My brother,
who was in law school, suggested I’d make a good candidate. I
became interested in understanding what the practice of law
was all about,” he recalls. “I was fortunate to test well on the
LSAT and went on from there.”

His humility is unwavering as Giddens details his success
in law school. “It became evident to me that I was able to
easily grasp the concepts that drove our courses,” he says. “I
enjoyed law school and felt that it was a natural fit for me.”
Upon graduation, that natural skillset caught the attention of a
number of regional firms. Giddens became a highly recruited
candidate and went on to clerk at large firms in New Orleans,
Memphis and Jackson.

His early trial experiences could be torn from the pages of a
feel-good novel. A young attorney with a notable courtroom
presence, Giddens was offered the enviable opportunity to act
as lead counsel with the financial support and resources of an
established and accomplished firm. “My first trial was held
at a federal courthouse,” he recalls. “I was introduced to the
information and given the liberty to spend what I needed in
order to build my client’s case.” With an uncommon level of
control over his cases, Giddens thrived. “I started to really take
pleasure in the process of establishing a case and presenting it
–and my clients– to juries,” he says. He facilitated consistently
successful outcomes thanks to his dogged perseverance and his
empathetic courtroom approach.

Those accomplishments were earned, though Giddens often
defers to a sort of luckiness in his professional endeavors.
Trying malpractice cases against seasoned attorneys and
established medical professionals might be a daunting prospect
for some, but Giddens handled each case with a sense of urgency
and dignity, as well as an innate desire to excel. “There were
times when I was arguing cases against attorneys, discussing
procedures that I had never seen,” he says. “Conquering some
of those early cases was like climbing Mount Everest.” And he
earned a spot at the summit of his profession, garnering some
of the largest medical malpractice verdicts of their times in
cases along the Mississippi Coastal region.

Giddens refined his professional focus when he launched his
boutique firm, which today primarily handles personal injury
and mass tort cases. Representing individuals and families
impacted by untimely death and catastrophic injury requires
exceptional knowledge and solid casework, along with an
ability to effectively connect with and share his clients’ stories.
Giddens excels in this arena, and his commitment to doing so
has driven the way his business is run.

Accepting Wreck, Injury and Death cases in Jackson, MS.

Giddens explains, “My practice limits legal representation
to a small number of serious personal injury and death claims
each year. This allows us to better focus on each client’s unique
needs, to provide those clients with immediate attention and to
ensure that each case is attended to with a sense of urgency and
purpose.” When cases have been completed the firm solicits
a rated response from each client, and strives to incorporate
feedback into their practice procedures. “As many of our clients
come to us through attorney referrals, we understand the
critical nature of providing them with a positive, professional
experience,” Giddens remarks. “Our ratings show that clients
are consistently pleased with the service and representation that
we provide.”

John D. Giddens Law Firm is known for its exceptional
case preparedness as well as the utilization of cutting-edge
technology. The investment in time and resources, states
Giddens, is a must when handling high-stakes personal injury
cases. During the course of one notable medical malpractice
trial, his plaintiff ’s brain injury was being questioned by the opposing
counsel, whose surveillance video seemed to show
a plaintiff with all facilities intact. Giddens was resolute in
his efforts to prove the plaintiff ’s very real physical damage.
In addition to garnering expert witness testimonials from
neuropsychologists from New Orleans and Texas, Giddens also
provided the jury with an animated –but very lifelike– video
craniotomy. “The process was incredibly intricate,” he recalls.

“Jurors witnessed firsthand the process of the craniotomy,
including hair removal, the opening of the skull to expose dura
and then brain matter, and the removal of pieces of the brain.”
The animation, he asserts, helped the jury to truly grasp the
magnitude of the plaintiff ’s situation. And the virtual reality
made a tremendous impact. Giddens notes, “One juror actually
raised his hand and asked to be excused, because he was going
to be physically sick from observing the simulated craniotomy.”
In addition to personal injury cases, Giddens and his
associate attorney, Baskin L. Jones, have also become involved
in select mass tort cases. The firm continues to represent oyster
fisherman in cases against BP, and is working with former
players of the National Football League as they embark upon
litigation against the NFL for issues pertaining to head trauma
and brain injury. Though these will become part of a mass tort,
Giddens explains that his clients will benefit from his firm’s
ongoing and attentive care. “We will continue to partner with
larger firms, while maintaining direct communication with our
clients,” he says. “Our relationships with clients are cultivated
and respected, and we ensure that they maintain a connection
with the firm they hired.” This commitment to personalized
representation is critical, explains Giddens, because while
clients may opt to become part of a larger case, they remain
individuals with very distinct stories. “Each player I’ve met is
dealing with a unique spectrum of problems related to head
injuries,” he asserts. “We view everyone as his own person with
his own needs.”

Managing a sense of client individuality within the
parameters of the mass tort process requires diligence and
purpose; Giddens and his firm maintain direct communication
with the appropriate steering committee or subcommittee
members if they aren’t involved on those boards themselves.
Giddens, who is an active member of the American Association
for Justice, has established solid collegial relationships with
leading attorneys across the country. These connections
become invaluable threads in the fabric of complex consumer
litigations, ensuring that his clients are not set adrift in a sea of
anonymity throughout the process.

John D. Giddens Law Firm’s dedication to the long-term
well-being of clients is highly evident in the firm’s commitment
to coordinating structured settlements. “Time and again, we
see clients come into cash amounts that are quickly spent,”
Giddens observes. “This is money that should last them the
rest of their lives, to help them overcome often debilitating
injuries and events. While they make their own decisions
on how to manage their money, we try to work with them to
ensure that their best interests are driving their financial plans.”
Understanding clients’ needs comes from a deeper knowledge
of who each individual is. Giddens and his associate make
home visits, a critical component, he says, of establishing a
case. “Before every trial, whether it’s a small matter or the
largest case you’ve handled, an attorney must spend a few
days with his or her client, looking at photos and learning
how they live. Then you can talk to a jury and say with
confidence, ‘This is who my client is.’”

Giddens, at once enigmatic and unassuming, looks
forward to continuing to work with individuals in need. “I
appreciate the opportunity to assist people who have been
harmed, who require assistance in achieving resolution,”
he says. “Every case, every trial is a chance to make a
positive impact on an individual’s life.” It’s a challenging
profession, but Giddens faces each impasse with polish
and determination, consistently offering skillful and
knowledgeable representation.