May 5, 2011 | Frivolous, personal injury, political parties, Tort Reform, trial attorney, Uncategorized
The Texas legislature is debating another law at curbing lawsuit abuse. We need to protect those insurance companies and corporations from being sued by people they injured, either in a personal injury case or a business dispute and what better way to do that than having the loser pay all the legal fees and costs of the winner. Some of our elected representatives believe this is an issue that demands immediate attention, hold hearings and try to pass this so as to save Texas from…what??
I will get to that in a minute, but first let’s talk about the issues that they are skipping over so they can hold these critical hearings: education, teacher pay, tax rates, budget issues, etc. Wow. I see why we should push those all aside so the big issue of protecting a special segment of society (read political contributors) is made a priority. Ever notice how anytime they should be tackling the hard issues, suddenly there is a lawsuit crisis. Funny how all that money the state received from the tobacco litigation was due to the work of trial lawyers. It was supposed to be for education and health. Where did it all go? The trial lawyers didn’t have control of it – our representatives did.
Back to the current attack on the justice system and our Texas way of life, loser pays. Sounds great. Why shouldn’t the loser pay the attorney fees and cost of the side that won. That might make some sense if it was even close to the real facts, but what they are trying to pass is a one way street. If you own a small business and have to sue GE because they haven’t paid you for your work, you could be responsible for all of their lawyers fees and cost if you lose. Lose means having a jury award less than GE offers. You go to a lawyer and explain that you don’t have the money to pay to fight them so will she take it with a reduced hourly fee and a percentage of the recovery. The answer will probably be no. Under the proposed law you and attorney could be responsible for all the other sides fees and expenses. So why would a lawyer who is already working at a reduced rate (or on a purely contingent fee in a personal injury case) take the chance. I know — if you really believe it is a good case you would take it, plus if you win you get all your fees and expenses. Wrong – this law only works one way. If you file suit and win, they don’t owe your fees or expenses. How about that for fair. If you have to sue to recover your medical expenses or for harm to your business because the other side refuses to do the right they and you win — you can’t recover your fees and expenses. It is only if you lose the other side can recover their fees and expenses. There is nothing to prevent (in fact it will even encourage) defendants from doing nothing so you have to sue them because they have no risk of having to pay for their frivolous defenses raised just to delay a case and raise the cost of recovery.
The people supporting this claim it will prevent frivolous lawsuits. We already have rules which allow a Court to dismiss a frivolous case and assess costs against the side the filed such a case. There are Motions which allow a Court to rule for either side and charge the losing side with costs. So why is this needed, who does it benefit and why is one sided? It has nothing to do with frivolous lawsuits and everything to do with money and intimidation. The real purpose is to prevent people and small companies from daring to sue others to make them pay for their actions which caused harm.
It has been touted that it is the English Law. Seems like we had a little disagreement with them about their laws and regulations which led to the creation of our country to begin with, including the lack of being able to seek redress for injuries and wrongs. Also the English are considering doing away with it and switching to the American system as being more fair. Also this has been tried in the U.S. Florida passed a loser pays type of law and five years later had to repeal it.
So here is the highlights. Try and distract the citizens of Texas from the real issues facing Texas today by creating a crisis that doesn’t exist. Reward special interest by making it a one way street. Pass a law that is not needed, has already failed in the state it was attempted and base it upon a country’s law which is considering doing away with it and following what we currently have. Finally if you go the the list of people who support the bill they include GE a company who makes billions, pays nothing in taxes but feels it needs protection from being sued. Those who oppose it include MADD a non-profit group who fights for those killed or injured by drunk drivers.
If Loser Pays passes – we all lose. What do you think? Have you let your representative know how you feel?
Apr 27, 2011 | Uncategorized
As a trial attorney I am used to having to find things out about people who don’t want the information discovered. The “substitute teacher” according to her information in discovery and on the crash report is actually a “bisexual escort” according to her MySpace page. Which explains why she was where she was when the wreck happened and who she was talking to on the phone. I know most lawyers tell their clients not to post anything about their claim or litigation on their social networks, but you really need to go a step further and review the information yourself. It might be a good idea to have them log onto all their social media sites, Facebook, MySpace, etc. while they are in your office that first meeting. I have seen defendants claim not only were they not drinking at the time of the wreck but never drink, only to find photos of them with alcohol, passed out and comments about being drunk again, wrecking another car, etc.
I actually started this blog about a month ago, but it seems like every time I go to post it something new comes up that I need to write about, but this was too good to pass up. In Fort Bend County a young woman was convicted of DUI and during the punishment phase of her trial the District Attorney admitted her Facebook page into evidence which listed her hobbies as beer drinking and beer pong. FortBendNow.com has the complete story. I thought that was bad enough but on April 22nd the Houston Chronicle reported how a group of bank robbers were arrested in part due to their posting comments on Facebook about being rich, making money the clean and dirty way and other comments. How about the poacher who posted the photos of alligator he poached. He was arrested. The guy on probation who was not allowed to drink and posted on his website about the party he was planning and drinking. Yep, goodbye probation. (I thought I would have to make up crazy exaggerations to demonstrate what can happen when you post stupid things on Facebook, but luckily I have real idiots to take care of that for me!)
If you are thinking not my problem – I am not in a lawsuit-you might want to rethink that. Employers are searching social media sites prior to hiring employees or during the interview process they may ask you to log on to check the site. If you are in high school or college you can still be impacted by honor code violations, drinking or other violations of school or sports restrictions.
I am looking for the crazy stories or things that people have posted on social media either with the consequences or lucky enough to have avoided them. Let me know what you have seen heard. I know none of you (wink, nod) have done posted anything stupid so you can tell me about your “friend”. Finally to all my defense attorney friends who are reading this thinking “Oh no I think that is my client” it is and I already downloaded and printed the pages:>)
Apr 21, 2011 | cell phones, personal injury, texting, trial attorney
Technology is great. It allows you to find old friends, keep in touch and keep updated on what is going on. It also allows you to be tracked. An article in the guardian yesterday (link at bottom) revealed that your I phone tracks your movements and stores them for up to a year. The data apparently provides timestamps and coordinates to allow a detailed history of where you went and when. I know you are saying, I know but I turn off that app that tells people where I am. Not so fast. This appears to be completely different and tracks the information, saves it and then downloads it for Apple to use as they see fit. You say: They can’t do that, I didn’t give them permission. Check out your terms and conditions. You know that mumbo jumbo no one ever reads. It probably has this type of language: Apple and our partners and licensees may collect, use, and share precise location data, including the real-time geographic location of your Apple computer or device. I know it is not a problem for you because you never go anywhere you shouldn’t, but let’s suppose you are in a lawsuit and the other side wants to find out where you have been – divorce, criminal, business, personal injury litigation, there is usually sometime that becomes and issue. Now arguably some trial attorney could request the Court order you turn your phone over so as to download the data. I usually tell my clients that everything you say and half of what you think is being taken down by the court reporter in a deposition, apparently Apple is helping by providing a means to track your every movement; thereby providing the ability for the other side to get a glimpse into your thoughts by tracking your movements.
Is this good or bad? Do you have a problem being tracked? How can this be used, good and bad?
http://guardian.co.uk/technology/2011/apr/20/iphone-tracking-prompts-privacy-fears
Mar 23, 2011 | Uncategorized
I have just finished reading a book where one of the tag lines is “no excuses”. It is about taking responsibility for your own actions and not blaming others. Good idea, but it seems the author of the book has fallen into the same twisted logic that I hear on the radio, from insurance companies, corporations and defendants and their counsel. It appears that personal responsibility is only something the person injured should be charged with. The book referenced the McDonald’s coffee case. It is funny that he fails to see the irony in blaming a grandmother who was severely burned rather than finding fault with the company which failed to take responsibility. I know. You are probably saying well that was her fault. Lawyers doing personal injury litigation are warned to stay away from the topic because you will never change a jurors mind about the case where the lady spilled coffee on herself while driving and got millions of dollars. Why didn’t she take responsibility for her actions? I have a different question, why wasn’t there the same outrage over McDonald’s refusing to take responsibility? It appears that like the McDonald’s coffee case, escaping responsibility is the primary goal for those yelling the loudest about others (almost always those who they have injured) not taking personal responsibility. So at the risk of alienating a large part of my followers, here is a summary of what really happened in the McDonald’s coffee case and why the jury awarded what they did:
Stella Liebeck, age 79 of Albuquerque, New Mexico, was a passenger of her grandson’s car when she was severely burned by McDonalds’ coffee in February 1992. Liebeck. She ordered coffee that was served in a styrofoam cup at the drive through window of a local McDonalds. After receiving the order, her grandson pulled up and stopped so that Liebeck could add cream and sugar to her coffee. Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap. So as a quick recap so far, we have a passenger in a stopped car that spilled coffee in her lap. If she had just received a minor burn like most of us have gotten from hot coffee or tea there never would have been a lawsuit, but that is what we have been led to believe. That some lady got a minor burn and then sued and was given millions by a crazy jury, well as Paul Harvey used to say here is the rest of the story:
The coffee that spilled resulted in full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. This grandmother had to undergo debridement of her 3rd degree burns in her groin area and ultimately skin grafts. If you are not familiar with debridement, it is where they have to remove the burnt and dead skin either surgically or in some cases with a stiff brush. So after all of this what did she do? She offered to settle her claim for $20,000. McDonalds refused.
Once suit was filed and during discovery, McDonalds was required to produce documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks, which showed that McDonalds’ knew about the danger and did nothing about it. McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. The evidence at trial showed that most other establishments that sell coffee do so at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees. Further, McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the “holding temperature” of its coffee.
Liebeck’s attorney put on an expert and scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.
McDonalds argument at trial was that that customers buy coffee on their way to work or home, intending to consume it there, but their own research showed that customers intend to consume the coffee immediately while driving. McDonalds also argued that consumers know coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a “warning” but a “reminder” since the location of the writing would not warn customers of the hazard.
The jury after hearing all the evidence in the case determined that Liebeck should receive $200,000 in compensatory damages. It was reduced to $160,000 because the jury found her 20 percent at fault in causing the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds’ coffee sales. The trial court subsequently reduced the punitive award to $480,000 — or three times compensatory damages — even though the judge called McDonalds’ conduct reckless, callous and willful. The final verdict was approximately $640,000.00, not the millions you have probably heard.
The most import aspect of the trial is what happened afterwards. A post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped from the 180-190 temperature to 158 degrees fahrenheit. The same temperature area which her expert testified would have prevented these devastating burns in the first place.
After all that this woman went through did you ever hear McDonald’s accept fault, accept personal responsibility for their actions or even apologize? Or have you heard the rants and yells generated from a PR machine whose sole purpose is to attempt to minimize and ridicule a grandmother who through her burns, pain and litigation managed to get a company to do the right thing, even if they still refuse to stand up and take responsibility.
So the next time you hear something about where is the personal responsibility, look a little deeper and remember what Paul Harvey said and look for the rest of the story.
Feb 16, 2011 | Uncategorized
When I was kicking around blog topics with different people, I was provided with several great topics. The one which gets today’s effort is jury duty. Why you ask, did jury duty rise to the top of all the other topics? That is easy. A Judge suggested I should write about jury duty. Judge wins. Jury duty is it.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror – do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.
