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?

I know where you have been

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?


Hit and Run Driver gets hit with $275,084.26 Judgment

Today in the 240th District Court in Fort Bend County,  a driver who was under the influence when he caused a wreck and then fled the scene, was hit himself — with a Judgment of $275,084.26.  In June of 2008 a drunk hit our client as she was stopped at a stop sign and then fled the scene.   The DPS later arrested him for DUI and fleeing the scene of a wreck.  Despite numerous letters and offers to resolve the matter, the Defendant refused to cooperate and the Court entered a default judgment as to liability and then after all the evidence was presented awarded our clients their damages.  The judgment included $250,000.00 for punitive damages due to the intoxicated assault and malice in the Defendants actions.

$3,250,000.00 Judgment in Drunk Driver case

The drunk driver had prior DUI’s and one DUI after he hit our client.  He was excluded from the insurance on the truck according to the insurance company,  so no coverage. It is clear that jail does not seem to change his attitude; hopefully a multimillion dollar judgment against him will convince him to stop drinking and driving.

We have previously proposed anyone convicted of a DUI be required to have and maintain insurance coverage of at least $100k to get their license back and have an interlock in their car.   If they are stopped and found not to have valid coverage it would be a probation violation.  The combination of an interlock and  insurance coverage can not stop them from driving drunk, but it would hopefully make it more difficult and provide the people they injure with some compensation for their injuries.

Driving while drunk is not always some other guy or other family.  Driving drunk not only can hurt others, but can have serious life changing impacts on the your life, including being arrested, losing your job and having a criminal conviction.  Think before you drink and drive.

What are your thoughts?

Nicole Lalime 13 year old killed by drunk driver

A year ago today, December 16, 2008, a drunk driver, Mr. John Winne hit and killed a 13 year Nicole Lalime as she got off her school bus in front of her home. After hitting her he left her in the street and fled the scene.  The world is a sadder place because of someone who decided to drive drunk.  You can help stop drunk driving.   Take the keys or take a cab, but don’t allow drunk driving.