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“Who are ‘those people’ doing all the suing?”

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.

Website, I Could Have Been a NFL Superstar, Hot Coffee, Big Oil and Facebook

I haven’t blogged lately due to depositions, travel and general life, but had several issues which have been bumping around so lots to talk and comment about:

We are working on updating our website (I know — who knew that you have to update them more than once every 15 years and apparently spiders are good things). If you have any suggestions on must haves on a website let me know.

As I was driving my daughter to the airport at 5:00am drinking my coffee and listening to the sports radio about how Mario signed a deal for $100 million with $50 million guaranteed and Peyton was rumored to be signing a $95 million dollar deal I explained to my daughter that could have been me had I only been taller, stronger, faster, etc., etc.   I was just as good a player as them if you factor in those few minor differences.    Just like lawsuits.   I know that most of you have experienced the “I have a friend who had a case just like this one and they settled it for (fill in the blank – but it is a lot).”  Those darn minor differences kind of determine the true value of a case.   A back sprain is not the same as being paralyzed and a 6’0” slow linebacker is not the same as a monster defensive end or all everything quarterback, BUT it does lead to another issue… which is why is it that people seem to have no issue with an athlete or actor getting paid millions of dollars for the job they do but those same people believe that compensating a family for the injury suffered because of someone else carelessness is somehow wrong.  How much is the value of a mother, father, sister, and brother worth compared to how Mario or Peyton will do on Sunday?  I am all for them being paid the value of their worth, but also would like to see the same value be paid to the family who has suffered injury or death because of someone else.

Anyway, back to my driving along drinking my coffee.  I love coffee and I have some great friends who brought me some Columbian coffee which is amazing and may explain why my blogs are kind of a stream of consciousness event.  Anyway, Jessica mentioned how hot the coffee was which brings me to the topic of Hot Coffee and McDonalds.  You can see my prior blogs for a more in depth discussion, but for today I just want to remind you to check out the movie Hot Coffee (website link is http://hotcoffeethemovie.com/Default.asp).  You can also get it on Netflix.  Check it out and let me know what you think and if it changed your opinion on the case.

Big Oil – they are the problem with America – no wait that is trial lawyers.  Why should they get to take our top billing?  When I was last in Midland my nephew Todd asked if I had seen the movie spOILed.   When I told him no, he went (actually he asked Laura to go) and brought me two copies of the movie, one to watch and one to share.  Being the skilled negotiator I said sure, if you will watch Hot Coffee.  Todd, I expect you to comment about what you thought about Hot Coffee.  So we put the spOILed in and watched it at my brothers.  Understand that I am in oil country here and I guess because I am a plaintiffs trial lawyer I must be liberal and hate oil companies (I really don’t fit any of assumptions of what I must think or be – so that make me like – most everyone).  Anyway back to the movie.  It is great and I highly recommend it to everyone.  If you believe Big Oil is evil or if you believe Big Oil is great (don’t you love how it always Big Oil – see the movie for more information on that as well) see the movie.  One thing that struck me is the actual profit margin for oil companies. I would tell you, but why ruin the movie.  The other thing that struck me is how you could replace the term oil company with trial lawyer and most of the things said are familiar to those of us representing plaintiffs who have been injured or killed.  Regardless of your opinion of oil companies, check out the movie and let me know what you think.  Same with Hot Coffee, watch it, drink it and let me know about it.

Facebook- I have written about this before in the context of claims and litigation, but in the news today it was pointed out how some companies now request/require job applicants to allow them access to their Facebook page before they are hired and in many cases during the interview they are asked to log on so they can check it out.  What do you think?  If you are an attorney should you have a prospective client give you access to their Facebook and other social media pages before you decide to represent them?  What about twitter accounts, etc. etc.?  Is it acceptable or not?  Why?  If you think no problem, I don’t have anything bad on my account (or I deleted it before the interview), what about your friends account which might now be accessed as you have permission to see them (and now whoever is logged on as you can see your friends pages).  What about that picture of you that you deleted or never saw, but your friend has it on their page?  Facebook is it really your friend or just a twit?

What do you think about these issues?  (other than man you need to cut back on the coffee)

PETA — Are you serious???

What to blog about?  The requirement of the government to require companies to pay for insurance which is in direct conflict with their religious and moral beliefs, and how it conflicts with the separation of church and state?  Planned Parenthood v. Susan G. Komen and change of their policy relating to funding of PP due to a social media backlash.  Is that good or bad and doesn’t it really depend upon your perspective?  Nope.  Done that.  Today I will address an issue which should be on the forefront of everyone in America.  The slavery of killer whales.  Yes.  PETA has filed a lawsuit in California (is anyone surprised) claiming that SeaWorld is violating the 13th Amendment of the Constitution by having Killer Whales in their show.  For those of you that have forgotten the 13th Amendment abolished slavery stating:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  Ok so PETA wants it to apply to animals.  I guess that preamble of: “We the people…” kind of slipped by them.  So let’s follow this out.  First if you are a PETA supporter aren’t you a little upset that some of your money is being used to fund this suit and what happens if PETA were to win?  Wouldn’t you have to set free all your pets as they are being kept against their wishes?  Wouldn’t the next step be that every animal would have to be set free and every animal killed would result in a murder charge?  I am really at a loss to understand the logic here and why the Court did not dismiss it rather than take the arguments under advisement.  All that did is give PETA (People Eliciting Tortious Acts) as opposed to PETA (People Eating Tasty Animals) some crazy idea that this has merit.  So we now have a situation where a group is claiming that the killer whales are slaves and have rights and there is no social media outcry?  Where are all the Planned Parenthood people?  Why hasn’t PETA provided funding for PP and not wasted it on crazy cases like this?  Is it because the mission statement of PETA and PP are not similar?  That can’t be it because PP and Susan G. Komen mission statements are not similar.  So where is the social media outcry? Where are the people claiming frivolous lawsuits?  Where the heck did my country go?  By the way My Party (see earlier post) is firmly against this misuse of the judicial system. What do you think?

Tort Reform — Texas Style

Wal-Mart announces reduction in medical coverage due to continuing rise of cost of coverage. Premiums continue to climb while benefits drop. Auto, Home and Business insurance premiums continue to rise. It must be those lawsuits right? What about those trial lawyers they must be the cause. All those frivolous lawsuits keep driving up the cost for everyone. Great tag lines but as the old commercial says “Where’s the Beef?” The insurance industry has done a great job of advertising and obfuscating. They have convinced people that if only tort reform was passed then everyone’s insurance rates would drop. Texas has had tort reform for almost a decade. Have any of your rates dropped? I didn’t think so. Every year it is the same story, well the reforms didn’t go far enough.
Over the next few weeks I will go through some of the different legislative and judicial edicts that form our current Texas law and much ballyhooed Tort Reform. Why don’t we start with the newest fair haired tort reform -known affectionately as loser pays (if you are the one who is injured that is) which allows the Courts to dismiss frivolous cases. That is a great idea. That is probably why we have had that procedure in place for pretty much since the inception of laws in Texas.
The Courts have always had the power to dismiss a frivolous case upon request by either party. So why the need for the new law and why is it that the loser only pays if it is the person bringing the case and not the person who caused the injury. Could it be that the insurance companies defending the person causing wrecks and injuries are trying to intimidate people into not making valid claims? What a strange idea. So here we are with a whole new set of laws designed to reduce the ability to recover for injuries caused by others actions.
Even if it is an unintended (:>)) result at least the overall benefit is for the good of us all — right. Let’s look at that starting with loser pays. Sounds great, but who is the loser who is going to pay? Suppose that a driver, Rich causes a wreck and Joan is injured. Joan is taken to hospital and gets treated. She doesn’t have health insurance so who is going to pay the hospital bills? Well if she doesn’t have health insurance she probably has Medicare or Medicaid maybe — maybe not. If she does then one of those entities pays and has a right to recover all their money. So why if there is a chance of having to pay the person who caused the wrecks attorney fees and expenses would you take the risk? I mean everyone knows juries are crazy right. That is what we always hear as a reason why they shouldn’t be allowed to determine damages in an injury case which could impact a person’s life (but they are great for deciding life in death in a criminal case – but I digress), so why would an attorney agree to represent Joan if he or she has to spend months fighting with Medicare/Medicaid just to get an answer as to how much is owed, invest significant time and money out of his/her own pocket to try and recover the damages for her. It may be that the determination is that it is not worth it so no lawyer, no lawsuit.

Great tort reform works. Oh Wait.

What about the hospital bills that Medicare/Medicaid paid on behalf of Joan. Well you and I paid those bills, after all isn’t Medicare/Medicaid essentially a tax funded insurance plan. But wait there’s more (I love infomercials) and since the hospital didn’t get the full value of their services they raise their charges to offset the loss which causes the cost to go up for everyone else. So now you and I are paying for the injuries caused by Rich. So when we hear loser pays we need to just admit that you and I are paying and Rich gets a free ride for his actions. Next time we will discuss the Court Decision I affectionately call Brainless.

The opinions in this blog, as always, are mine and not necessarily those of the firm.

Loser Pays – We all lose.

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?