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?
Jan 10, 2015 | Uncategorized
If you, someone in your family, or a friend is in a wreck there is usually a lot going on after the wreck. Other cars are trying to get around you, you are scared and hurt, trying to get and give information and just generally adjust to the shock of the wreck. 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 spouse, parents, etc. (If a minor call your parents -NOW) – start with I’m ok, if you are, or how you are and give them location of wreck. Then listen to what they tell you and answer any questions. They will probably be able to help provide you some insight and calm as their body is not having an adrenaline spike.
3. Take pictures of vehicles, position of vehicles, law enforcement and first responder vehicles and surrounding area.
4. Take pictures of the drivers of the other vehicles and any witnesses.
5. Take pictures of insurance information and Driver License of all drivers of all involved vehicles and driver license of witnesses.
6. Take a video/audio of what other driver is claiming happened and as well as any witnesses.
7. 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.
Carpenter & Carpenter, P.C. 281-565-5900
carpentercarpenter.com
Dec 17, 2014 | Uncategorized
I love living in Texas – there is nothing like shopping for Christmas presents while wearing shorts and short sleeves. However you should be aware that while you are out Christmas shopping, picking up packages, going out to lunch and dinner with friends and family, there are others who are out looking to steal from you. Below are some specific tips to help you stay safe while you are shopping and out and about in this holiday season. The number one tip is to stay alert and never assume that where you are is “safe”.
Parking Areas:
Make sure you remember where you parked by noticing the landmarks to help you find your car later;
Get in and out quickly. Park in a well-lit area. Do not sit in your car or leave doors open while you put stuff in the car. Have your keys in your hand and be ready to push your car alarm if necessary. Do not be fumbling for your keys as you approach your car. Make sure to check in, around and under your car before getting near it or in it;
Beware of strangers approaching you for any reason. If you see anyone who appears suspicious or seems to be loitering notify the police or mall security;
Do not leave packages visible in your car windows. Lock them in the trunk, or if possible, take them directly home.
Don’t leave phones, purses, chargers (which shows you may have a phone in the car) etc. or any other item of value in your parked car where they can be seen.
If you are entering through a store, make sure you know what time it closes so that you do not have to walk around outside of the store to get back to your car.
General Information:
Shop during daytime if possible. If you plan on shopping at night try and go with friend or family member;
Do not carry a purse, or backpack as they are prime targets for pickpockets and thieves particularly in crowded shopping areas, buses, etc.;
Dress comfortably and avoid wearing expensive jewelry;
Take only the ID and credit/debit cards you will need for the trip. Keep your wallet, cash, etc. in your front pockets;
Stay focused on area around you. While you are concentrating on what to buy, others may be focused on how to steal from you. Don’t read texts or emails while you are shopping if you can avoid it.
In stores:
Do not let your guard down in the store. This is a perfect area for a thief to take something while you are distracted with your shopping. Don’t leave purses, phones, etc. in the shopping cart, and don’t leave your purse open or slung across your back.
Identity theft prevention:
Keep your debit/credit card in sight at all times. Cover the keypad when entering pin number or any other information as you check out or use the ATM. If you lose your card notify the card company immediately and report loss/theft to police. You can also put fraud alert on your account through Equifax, and other credit reporting agencies. Keep a record of all of your credit card numbers and company contact numbers in a safe place at home so that if you lose your card(s) you have the information necessary to cancel them quickly.
With a little extra effort you can keep your holidays as stress free and enjoyable as possible! Wishing you a wonderful holiday!!!
Nov 24, 2014 | Uncategorized
By Kathy Carpenter
The November Ipmact a Hero Race in Sugar Land, Texas
This past weekend I was privileged to run in the Impact a Hero race which took place right here in Sugar Land, Texas. The Impact a Hero organization has been active for ten years, and in 2005, Sugar Land was one of the first cities to host a partnership event. Due to the incredible growth and participation, the event moved to downtown Houston and is now held at NRG Park each May.
It was great to have the event return for a November race in Sugar Land. As I ran (and walked!) next to some neighbors I have known for over a decade, I was moved by the pride, gratitude and strength of our community and by the tremendous sacrifices of the veterans who participated in this race. Brent and I have been Sugar Land residents since 1990 and it’s truly incredible to see how far the area has progressed in the past twenty plus years. Our kids rode bikes on the Grand Parkway before it was finished, and I still remember when Town Center was an open lot that hosted the Sugar Festival, before Walmart and Whataburger and overpasses, when the only retail on Highway 90 was a cleaners in a little yellow house. Through all these changes, the outpouring of caring and the generosity of the residents of Sugar Land has been a constant.
It is not surprising to me that the community of Sugar Land was one of the first to partner with Impact a Hero. It was that sense of welcoming and investment in community that drew Brent and I and eventually our law firm to Sugar Land. I am so proud to be a part of this great community and it was an honor to participate in the Impact a Hero event as we showed our gratitude to those who protect our country.
As we give thanks for our many blessings this week, we are also mindful of the tremendous sacrifices our military men and women make for us every day.
To learn more about the Impact a Hero organization please visit their website: http://impactplayer.org/
Oct 28, 2014 | Uncategorized
Early voting ends this Friday. I hear people complain about this elected official or that one, but then they don’t take the time to vote. Early voting is quick and easy and saves you time on election day. Take advantage of the opportunity. Another voting related issue I hear often is both parties complaining that the other party is just a mindless bunch of followers without any independent thinking or evaluation. Then these same people brag about voting a straight ticket. A straight ticket for either party has the very real probability of having less qualified judges and officials elected just because they have a R or D by their names. In past elections, counties across Texas have lost very good judges from both parties because of straight ticket voting. If you are like me you want a judge who will follow the law and rule accordingly without thought of party politics. I wouldn’t want a judge who would campaign on limiting a Texans right to open courts or any access which the law allows. I have prepared a list of the candidates I support and will be happy to send them to anyone who subscribes to my blog and requests a copy. (Spoiler alert – it is not a straight ticket)
Apr 22, 2014 | Uncategorized
Disclaimer: The following is my personal rant, not that of my firm, partner, family or anyone else.
As many of you know the person who hit and killed my sister in law while she was riding her bike is contesting the traffic tickets she received. last Thursday we along with about 100 people showed up to show support for my brother in law and his family. The trial was continued based upon the representation of the Def. attorney that one of the witnesses feared for his safety. There was no evidence produced, the attorney did not testify as to claims and the witness was not present to testify as to the supposed fear. Based upon these claims the judge granted a postponement. There were 3 other witnesses in the court room (2 police officers and another independent witness who stopped following the crash) who apparently felt no such fear.
The defense attorney is running for state’s attorney in Maryland and he posted his version of what occurred on his Facebook page (which I have set out in part below along with my comments in bold). I wonder if his platform includes if you are scared to testify I will let you slide and we will not prosecute anyone just forgive them.
“The Whitney DeCesaris trial involving the bicyclist fatality was indeed postponed yesterday; however, it was solely caused by the palpable anger in the room exhibited by certain persons in the cycling community, which intimidated a key witness in this case, causing him/her to fear for his/her safety.”
There was no anger in the courtroom, in fact it was probably one of the quietest I have seen in my almost 30 years of trying cases across the country. The intimidated “key witness” is identified by Mr. Simmons (the Defense attorney) in his post. There was no evidence that he was intimidated other than comments made to the Court by the defense attorney supposedly as an officer of the Court. I say supposedly because the term “palpable anger” describing the room must have been another room. If it were as he suggests the Judge would have taken steps to clear the Courtroom, she did not. The judge would have requested the bailiff to instruct the gallery to quiet down or be removed, she did not (probably because there was no anger and no one speaking). There was a comment made by Mr. Simmons that the witness heard people yelling his name. That is true. It was Mr. Simmons calling to see if he were present. So we have a representation by Mr. Simmons that a witness feared for his safety.
“However, when certain forces are at work to disrupt the process by threatening and intimidating witnesses, parties, and officers of the court, this system of justice becomes just like every other system of injustice in the world today.”
Apparently the palpable anger in the courtroom escalated to “forces at work to disrupt the process by threatening and intimidating” not only witnesses (actually only one if you believe Mr. Simmons to the entire system. I am surprised the SWAT and riot squads were not called out to quell this uprising in traffic court.
“This tragic event has brought two families together in the most horrible of circumstances. Mrs. DeCesaris, a nurse, stopped and immediately rendered care to Mrs. Cunningham, assisting Dr. Richard Garden with CPR. Dr. Garden took charge of her care while Mrs. DeCesaris administered mouth to mouth and attempted to manage Mrs. Cunningham’s bleeding until emergency services arrived. Dr. Garden and Mrs. DeCesaris were the only people who engaged, doing all they could to save Mrs. Cunningham’s life. Assuming for just a second, that this accident was not preventable, has anyone thanked Mrs. DeCesaris for trying to save Mrs. Cunningham’s life? Plenty have demonized her. Dr. Garden for his good deed has been intimidated by the some cycling advocates, because his testimony supports the premises that this accident was not preventable. Has anyone ever said thank you to Dr. Garden?”
Mrs. DeCesaris would never have needed to render care to Mrs. Cunningham had she not struck her bicycle from behind. How would you propose the thank you be worded Mr. Simmons? As to Dr. Garden (whom I never mentioned by name but you for whatever reason felt compelled to put his name out for all to see – a witness whom you claim was threatened ) I have actually spoken to him on two occasions and thanked him for all he tried to do and told him the family thanked him as well.
“Regardless of what history will ultimately reveal to us about this incident, one thing is sure: healing only begins with forgiveness. Without forgiveness, there can be no peace. Forgiveness is indeed for the forgiver and not the person receiving it.”
Forgiveness is generally the result of someone asking to be forgiven not where the person continues to blame everyone (anyone) else for their actions. With that said, I have forgiven her, but that does not mean she should not be held responsible for her actions in as anyone else.
I am sure it is just a coincidence that the delay will probably push the trial past your primary election for State’s Attorney, but look on the bright side, if you don’t make it in politics you can always become a fiction writer.
