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?

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  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.

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?