“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.

Rules – When they change retroactively, justice can get fuzzy

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?

7 Things you must do if you caused a wreck

Let’s face it. You will probably be involved in a wreck at some point in your driving life.  My last blog covered what to do if you are involved in a wreck that is not your fault.  Today I’m covering it from the other side, what to do when you are at fault. The general assumption is that your insurance company will protect you. That assumption could be wrong. Here are things that as an attorney who represents people injured in the wreck that I think you should know. (I would prefer that you didn’t know some of them, but you should know them.) The first three are familiar if you read my last blog. You can put this in your vehicles with your other papers. Hopefully you will never need to use it.

1. Call 911 if anyone is injured or vehicles cannot be moved.

2. Call your insurance company to report the wreck. Most policies require that you notify them of any wreck you are in and failure to do so could impact your coverage and you want to make sure you are covered if the other side makes a claim against you.

3. Take pictures of vehicles, position of vehicles, law enforcement and first responder vehicles and surrounding area. Take pictures of the drivers of the other vehicles and any witnesses. Take pictures of insurance information and Driver License of all drivers of all involved vehicles and driver license of witnesses. You probably get the idea – take lots of pictures – better to have the picture and not need it than to need it and not have it.

4. Do not post anything on Facebook, twitter, etc. about the wreck. It will be found and used. If you post on social media it will not help your claim. Also if you try and make it sound like it wasn’t your fault when it clearly was it will make things even worse. Just stay off social media about the wreck and make sure your friends and family do as well. Your insurance adjuster and defense attorney would probably prefer you just stayed completely off until after the case is settled or the trial.

5. Request in writing that your insurance company defend you in all claims and lawsuits which may be brought against you as a result of the wreck. Do this as soon as possible following the wreck. Send it certified and keep a copy. There are some insurance companies which take the position that unless you request they defend you in writing that they have no duty to do so. That can leave you personally responsible for all the other driver’s damages even though you had insurance which should have protected you.

6. Request in writing that your insurance company provide you with written notice and copy you on all offers, demands, claims and lawsuits related to the wreck. Do this as soon as possible following the wreck. Send it certified and keep a copy. I have seen several instances in which the other drivers insurance company either never told the person who caused the wreck of our offer to settle before suing them or in a few cases misled the driver about their offer – telling them we refused to accept the policy limits when it was never offered. Make sure you get the actual offers and demands so you know what is going on.

7. Talk to a lawyer. While we generally represent people injured in wrecks caused by an at fault driver. We have also represented people who have required personal counsel to make sure their own insurance company did the right thing in protecting them and paying the claim. Sometimes an insurance company forgets that it should protect its insured rather than its own profits.

Carpenter & Carpenter, P.C. 281-565-5900

Obama Death Panels –We don’t need them in Texas!! (Because we already have them!)

There has been a lot of talk and fear about the so called Death Panels which can decide whether a person should be denied life sustaining care even over the objection of the family.  It has been vilified as typical of “Obama care”.  Texas is leading the country as we have had these “death panels” for over a decade thanks to Tort Reform.  I thought it was a bad idea in 1999 and still think it is a bad idea.  Essentially it allows the physician or medical facility to determine that life sustaining care is inappropriate.  This decision can be over the objection and wishes of the family.

“The physician and the health care facility are not obligated to provide life-sustaining treatment after the 10th day after the written decision…”

“The patient is responsible for any costs incurred in transferring the patient to another facility.”

So imagine that your family member is in a car crash and lapses into a coma and the medical facility decides that there is no benefit to life sustaining treatment (the irony of “life-sustaining” care being of no benefit seems lost on them).  The committee (?) determines to end all life-sustaining care and gives you notice.  Now you have 10 days to find another facility to agree to accept your family member and if you can find one (after the current one has already decided it is futile {I am sure the economics of care have nothing to do with the decision}) you get to pay for any cost incurred in transferring your loved one. If you don’t agree, you have the option to file a lawsuit to stop them.  Do you really think that will be what you are thinking about as your loved one is essentially starving to death as they cut off life support.

The people who supported the law and are now fighting against health care will say, well that is different or just because it is the law doesn’t mean it will happen.  Harris County Texas — a patient identified only as “Willie” died after the hospital cut off all nourishment after giving the proper notice.  Probably the family didn’t care – wrong they tried to get him transferred but couldn’t find a hospital willing to take him.  Well he must not have had insurance –  1st should it matter, but he actually had plenty of coverage, but the let him die.  Texas Right to Life spokesperson Elizabeth Graham stated “Willie” was dehydrated and starved to death against the family’s desire (Thanks to Jeffrey Kreisberg).  So when you think it will not happen, it already has to someone with a family who wanted to keep him alive and had insurance. As far as I know, no such action has taken place in Fort Bend County, Texas – yet.

In the last election for governor of Texas, Perry was asked about this and he claimed he wasn’t aware of the law and would make it priority to get it overturned.

If you are concerned about “death panels” you should be because if you are in Texas it is not a possibility it is a reality and not because of the liberal democrats, but because of the Texans for Lawsuit Reform (TLR) group.  So be mad and take action against those who supported, sponsored and passed the bill.  Ask your representative if they are supporter of Texans for Lawsuit Reform and, if so, why they are in favor of these “death panels”.  I wonder if they will claim they didn’t know what they were supporting??

Finally, if you support (or know someone who supports) TLR I posted this question on Facebook – “What do you believe needs Reforming?”  I really would like some answers to that question.

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)

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.