May 19, 2015 | Uncategorized
You are driving along in your car minding your own business going the speed limit (or close) when there in front of you is a bicycle rider – right in the lane – causing you to slow down to a near crawl. What is with them? If this sounds like something you have heard yourself saying you are not alone but let me suggest a different approach.
When you see a bicyclist ahead – Slow down (both literally and figuratively) – make sure they have adequate space and when safe, pass no closer than 3ft from them and make sure you don’t pull back until safely in front of the rider. Just taking those easy steps can prevent a serious injury or death to a cyclist and prevent a driver from having to live the rest of their lives with knowing what the loss they caused another family to endure.
Our firm handles severe personal injury and death cases and it would thrill me to never have to handle another case in which a bicyclist was injured or killed. We have seen the devastation it can cause both the rider and driver which could have all been prevented by just taking the actions above.
The laws applying to bicyclist vary from state to state, but generally are similar to Texas which states that Bikes are generally entitled to all rights and obligated to all duties of the road that apply to a motor vehicle. Tex. Transp. Code § 551.101, see also Tex. Transp. Code, Title 7, Subtitle C. Rules of the Road, Chapters 541 – 600 and that a person operating a bicycle, if moving slower than traffic, shall ride as near as practicable to the right curb or edge of the roadway. Tex. Transp. Code §551.103. By definition roadway does not include the shoulder of the roadway. Tex. Transp. Code §541.302. Passing a bicycle in car, truck, motorcycle, etc. is required to be on the left and at a safe distance. Several states have a definitive distance for safe passing and several cities in Texas such as Austin, San Antonio and Beaumont to name a few have implemented a safe passing zone of 3 feet. It seems like such a small inconvenience to slow down and pass safely compared to what could happen.
May is Bike Safety Month and this Wednesday May 20th at 7:00pm is the Ride of Silence. It will begin in many cities in North America, including Houston and take place throughout the world. The purpose of the ride is to silently honor the cyclists who have been killed or injured while riding on public roadways. The ride is also to remind us of what could have been if we had just slowed down. So next time you see a bicyclist, slow down give them at least 3 feet. You will be glad you did.
May 12, 2015 | texting
As you probably noticed I have not posted a new blog in a while. The reason is in part not enough time the other part is I have a real problem on deciding on what to write about. This morning while I was stopped at a red light the topic became clear. As I sat there probably 80% of the drivers were either talking or texting while driving. We are all addicted to our smart phones. We need to get smart and take control. I say we because I am guilty as well with the “I’ll just check this while I’m stopped at the light” or “traffic is light so I can return this call”, or any of the hundreds of excuses we all have for “just checking”. So today I ask you to join me in my Thumbs up to no texting. I know that I will forget and revert back to “just checking” without something to remind me that is the reason for the band aid. So today begins my no texting while driving. My goal is to make it to no phone use while driving. If you are up for the challenge join me and share. Also don’t be surprised if you get a bandaged thumbs up from me if I see you using your smart phone while driving.
Mar 24, 2015 | Business, Business Disputes, car crash, Frivolous, Insurance, personal injury
I can’t tell you how many times I have heard that and it is usually followed by “but my case is different” or “but my case is not frivolous like those other cases”. The truth is every case is different and there are very few frivolous cases.
The people who sue are your friends, your family, yourself and anyone who has an issue that cannot be worked out in an amicable manner. The insurance companies and some defendants rely on your feelings of embarrassment for suing by making it seem like if you sue someone, when they do not take responsibility for their actions, that somehow you are a bad person or that you are “taking advantage of the system”. In fact it is often the defendant in a lawsuit whose actions have caused a wreck or business loss. If that was not bad enough they then refuse to take responsibility and pay for the injuries or damages they caused.
When people talk about all the frivolous lawsuits, I ask them which ones they are referencing. The ones usually cited are either made up or completely wrong on the facts and injuries (McDonald case). In my almost 30 years of practice I have seen a few cases which I believed should not be prosecuted, but almost always it was because of a change in the law or the damages did not justify what it would take to try the case. The number of frivolous cases I have seen can be counted on one hand, including the business case we defended last week.
I have seen, on multiple occasions, what I believe to be frivolous defenses in car crash lawsuits. Several years ago there was a case where the Defendant claimed the reason he rear-ended the car in front of him without ever hitting his brakes was because a bee in the car distracted him. It sounds like a freak accident and taken by itself (as the jury in a case would) it would seem so. But when a group of lawyers who do auto cases were talking and found out that the same insurance company seemed to have a flurry of bees causing wrecks all over the county it makes you wonder. Are we suddenly under a bee attack or has the insurance company come up with a defense when taken in a single case seems plausible and when taken as a group (which juries never see) is laughable and frivolous.
My hope is that people and companies who make mistakes would stand up and admit they caused the injury and damages and make it right instead of making it necessary for the injured party to have to file a lawsuit, but then I still believe that people will do the right thing (and in Santa Claus).
So when you think “who are ‘those people’ doing all the suing” — it is probably because you haven’t been forced into that position –yet.
Mar 4, 2015 | Texas, Uncategorized
Our blog generally focuses on legal issues which impact our clients, but sometimes it is good to take a break and step back and reflect on other topics, like why we love living in Texas. It is March in Texas which, for me, means:
- Bluebonnets – “Bluebonnets of Texas they bloom in the spring…” do you know the rest of the poem? If you are from Texas, you probably do. And you probably have at least one photo of you, your significant other and kids in the Bluebonnets. Go ahead and find the picture now, it’s probably one of your favorites. That is, until you take a new one this year. One of our favorite fields is on HWY 71 between Houston and Austin. When you find a great field, let us know.
- Houston Livestock Show and Rodeo – It’s time to break out the boots and hat and head to Rodeo, where everyone gets to be a cowboy for a day. I’m a huge Rodeo fan and I hear they even have some fairly decent singers show up. If you really want to take it up a notch, get a duster to go with your hat and boots. If you don’t know what a duster is – well maybe you’re just visiting.
- Houston Dynamo – It may not be on your list, but as a family that has been playing, coaching and refereeing soccer for several decades, it is definitely on ours. If you haven’t been, you really owe it to yourself to make it to at least one game to see our local pro soccer team. If you don’t understand the game, no problem. The fans are great about explaining what is going on without attitude. 3 quick notes: The field is called a pitch, the game is called a match and anytime your player goes down just yell “are you kidding me – how is that not a foul.” You will be high-fiving new friends in no time.
It wouldn’t be March in Texas for me without these three things, and we wouldn’t be successful without our Texan (it is a state of mind) friends and clients.
This month we will be celebrating by giving away Rodeo and Dynamo tickets (you are on your own with the Bluebonnets). To enter the giveaway, share your top 3 things that define Texas in March in the comments below. We love hearing what others enjoy about Texas, and are excited to share some of our favorite activities with y’all.
Feb 24, 2015 | car crash, Judges, personal injury, trial attorney, Uncategorized
Decisions from the Texas Supreme Court can be confusing. Too often we Texans brush over or ignore these decisions that could impact individuals who seek justice through our court systems. When I try to explain these decisions and convey their importance, I am occasionally met with a response of “well, of course you’re concerned, but you are a trial lawyer.” Guilty as charged. But a recent decision from the Texas Supreme Court deserves the attention and indignation of every Texan, regardless of their profession or politics.
On February 13, 2015 in Nabors Well Services, Ltd. v. Romero, 021315 TXSC, 13-0136 the Texas Supreme Court held that “for more than forty years evidence of a plaintiff’s failure to use a seat belt has been inadmissible in car-accident cases”, but “today we overrule it and hold that relevant evidence of use or nonuse of seat belts is admissible for the purpose of apportioning responsibility in civil lawsuits.” The Court went on to state “Following our precedent in Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974), the trial court excluded all evidence of nonuse of seat belts.” Despite the trial court, the attorneys, and the appellate court following the proper law and our forty years of legal history “we reverse the court of appeals’ judgment and remand this case to the court of appeals for further proceedings consistent with this opinion.” Meaning go back and try the case again, maybe.
I am indeed a trial lawyer, representing people injured or killed by the actions of others AND representing business clients who seek to recover damages or enforce agreements. With this role in the court system, I have direct contact with juries and trial judges who hear and judge cases based upon the evidence presented and the laws of the land. As a trial lawyer, I try cases and present evidence to juries based upon these established rules. I understand that I will not always win despite the evidence (or because of the evidence) and I know that is what I and other trial lawyers signed up for when we chose this great profession.
What we did not sign up for is to try a case under one set of rules, then forty years later have an appellate court change the rules and make them retroactive. This means that a case presented and decided under the current laws could be reopened, retried and may result in a reversal of judgment. This would be outrageous in any other setting, yet has passed through our Supreme Court and been handed down without much backlash.
Here is an analogy (we lawyers love those).
- In football, all teams strategize and train knowing the rules of the game; the most basic being that to win, you must score more points than the other team.
- Imagine that Team P played Team D in the championship game, it was a great game, hard fought with exceptional coaches, players, referees and fans for both teams. There were some penalties during the game by both sides, but the Refs did a great job and no big surprise by either side. The game ended on a long field goal as time ran out with the Team P winning by a margin of just one point.
- After the game, Team D protests that Team P should have had to win by 2 to be declared victors. This is dismissed by the referees, but Team D takes their case up and up the chain of command until someone will hear them out. By the time they find a sympathetic ear and somehow manage to change the rule, it has been more than two years since the game was played.
- Team P thinks they must be in an alternate universe when told that they can now be challenged to a rematch under different rules. They have to hunt down their players and coaches (hopefully they are all still healthy and available), revisit their strategy, and play in different conditions with a new team of referees judging under these new rules.
The decisions from the Texas Supreme Court are not impacting a game, they are impacting the lives and recovery of injured Texans who trust that the rug will not be pulled out from under their feet when they are trying to make a stand for justice.
As a trial lawyer, I know there will be times where a judge will rule I cannot get evidence before a jury or something happens in trial that is unexpected (ok that is every trial). But the same rules should apply at the start of trial all the way through the appeal. I think that a fairer approach is for, the Supreme Court’s changes to this or any rule of law should be effective proactively on all cases filed ninety (90) days or more following the final ruling. This would allow attorneys on both sides to make appropriate adjustments and preparations to provide the proper evidence at the trial of their case and follow the changed rule of law. It would also save taxpayers, juries, judges, clients and attorneys a significant amount of time and money and provide stability to the law.
The issue here is not whether the change to the law is good or not (that is a subject for another blog) but the unfairness of making the change to the long-established rule of law retroactive.
What do you think?
