There’s a good op-ed online in today’s Clarion-Ledger in Jackson, Mississippi by insurance-defense lawyer Alex Alston (certainly no bomb-throwing liberal trial lawyer) about how that state’s high court has shifted to protecting businesses and insurers over injured consumers. Switch the states and names and he could as well be describing the Texas Supreme Court.
Notable among Alston’s comments are these:
“Our entire judicial system is built on a “rule of law.” In other words, it makes no difference whether you are a prince or a pauper, the law must be precisely the same for all. A court that substitutes its opinion for that of a jury, or simply decides a case for the benefit of a favored party, tears the basic fabric of our judicial system to shreds. If the rule of law is not followed, the entire foundation of our judicial system is undermined. The public has a right to expect the Supreme Court to follow the rule of law and decide the cases before it fairly and impartially without favor to any party regardless of status, race, creed or color…Should we not demand that [they] follow the rule of law? Certainly it is a fair question to ask why 88 percent of the time, the court reverses a jury verdict for a plaintiff and substitutes its own opinion, and why, in 100 percent of the cases involving an injured victim’s appeals from a jury verdict in favor of a defendant, the court finds for the wealthy or powerful defendant. Our court must be more than a rubber stamp for the rich and powerful. Shouldn’t we expect that and more?”
Well said, Mr. Alston. Undermining the rule of law for injured consumers hurts us all in the long run.
LBJ Freeway was shut down in both directions near Plano Road after a fiery and fatal crash Sunday morning. Three vehicles — including an 18-wheeler and a pickup truck — collided in the eastbound lanes of of the highway just east of Plano Road at 7:35 a.m. All three vehicles caught fire. There were still massive backups on LBJ Freeway on Sunday afternoon, more than six hours after the incident.
A 22-year-old woman was killed after she was hit by a car while trying to take pictures of a three-vehicle accident on LBJ Freeway early Sunday. April Sterling, of Dallas, and her friend were heading west on LBJ Freeway near Plano Road when they stopped so she could take pictures of the accident that occurred about 7:45 a.m., said Dallas police Sgt. Gil Cerda.
Ms. Sterling wanted to get closer to the accident scene so she ran into the HOV lane when a vehicle traveling west struck her, throwing her into the eastbound lanes of the freeway. She was taken to Parkland Memorial Hospital where she died from her injuries.
The three-vehicle accident shut down both sides of LBJ Freeway for several hours. Police said a tractor-trailer was heading east on the freeway and driving over a hill when he locked his brakes to avoid hitting two trucks parked on the freeway’s shoulder. The tractor-trailer crashed into the two pickups, causing all three vehicles to burst into flames. One driver was taken to an area hospital. That driver’s condition was unknown Sunday evening. Sgt. Cerda said the tractor-trailer driver faces a misdemeanor charge of faulty evasion action.
The San Francisco Chronicle reports that the city attorney is suing a leading credit card dispute resolution service, accusing it of favoring industry and stacking the system against consumers in debt collection cases.
The suit, filed by the office of City Attorney Dennis Herrera late last month in San Francisco Superior Court, alleges that National Arbitration Forum, one of the nation’s biggest dispute resolution companies, is biased in favor of debt collectors. It says the forum “is actually in the business of operating an arbitration mill, churning out arbitration awards in favor of debt collectors and against California consumers.”
The complaint cites forum statistics showing that of 18,075 cases brought before one of its arbitrators from January 2003 to March 2007, a total of only 30 resulted in victories for consumers.
The suit touches on a matter that’s become an increasing concern for consumer groups in recent years - the push by financial services companies and other businesses to impose mandatory arbitration as a substitute for lawsuits to settle disputes with customers.
If I did the math right, consumers win approximately .16 of the cases and the credit card companies and banks win…uh…99.84 of the cases. Amazing.
Here’s an interesting article from CNN series “Empowered Patient.”
Since “tort reform” passed in 2003, it’s made it extremely difficult for many injured patients to find competent lawyers to file medical malpractice suits. I’ve lost count of how many injured folks we’ve had to turn away because the expenses of bringing a malpractice suit far outweigh the potential recovery because of damage caps. This article offers some suggestions on steps an aggrieved patient might take with the doctor and/or hospital to make things somewhat right.
I would add to those suggestions that patients can contact the Texas Medical Board and file a complaint against a physician. The Board, at least ostensibly, is supposed to investigate and reprimand negligent physicians.
Attorneys from the Fort Worth personal injury law firm of Laird & Cummings, P.C., are reminding everyone who may be traveling on interstate highways to stay safe and smart this holiday season.
Families traveling north to celebrate the holidays with love ones this year should be particularly aware of weather-related dangers on the roads. Take precautions, and check the weather before you leave.
“The difference in road conditions can be very tricky for drivers who aren’t used to driving on icy roads or in severe weather,” says attorney John Cummings, partner in the Fort Worth personal injury law firm of Laird & Cummings, P.C. “When you combine bad driving conditions with the fact that tractor trailer drivers are trying to make it home for the holidays themselves, you can see the dangerous combination.”
Nearly 5,000 people were killed in crashes on U.S. roads involving large trucks in 2006, according to the Federal Motor Carrier Safety Administration.
The National Transportation Safety Board and other respected highway safety research groups have found that nearly 40 percent of big truck crashes are due to fatigue. Studies show that extended periods without sleep can slow reaction times by as much as 50 percent, which is the same as having a .05 percent blood alcohol level.
Laird & Cummings, P.C., is a Fort Worth, Texas, personal injury law firm that represents individuals and families in cases involving personal injury, wrongful death, trucking accidents, medical malpractice, construction site accidents, products liability and business litigation.
Historically in Texas, there were no particular rules regarding the division of fees among lawyers or the payment of a referral fee from one lawyer to another for forwarding the case. In 2005, however, the Texas Supreme Court enacted new referral fee rules which do away with “pure” referral fees (those where the referring lawyer has no role in the case other than forwarding it to another lawyer). Now, referral fees in Texas must be based on either a “proportion of services” basis or a “joint responsibility” basis.
In a “proportion of services” situation, each lawyer performs substantial services on behalf of the client with respect to a particular legal matter. Each lawyer who participates in the division of the fee is required to perform services beyond simply being hired by the client and forwarding the case to another lawyer. There must be a “reasonable correlation” between services performed and the sharing of the fee between the referring lawyer and the handling lawyer.
In a “joint responsibility” situation, the referring lawyer assumes an ethical and perhaps financial responsibility for the representation. The referring lawyer must make a reasonable investigation into the client’s legal matter and refer the matter to a lawyer reasonably believed to be competent to handle it. The referring lawyer must monitor the matter throughout the representation, respond to client questions and keep the client informed of progress in the case, and assist the handling lawyer when necessary. “Joint responsibility” does not mean joint control, and the referring lawyer is not required to attend deposition or hearings or trial, or be copied on all pleadings and correspondence.
Importantly, attorneys must obtain the client’s written consent in advance regarding the basis for the referral and the division of fees. The complete rules pertaining to referral fees in Texas may be found in Rule 104 of the Texas Disciplinary Rules of Professional Conduct.
In our practice handling personal injury and wrongful death cases on a contingent-fee basis, we find that referrals on a joint responsibility basis are most common and most akin to the traditional referral fee arrangements our referring attorneys have enjoyed over the years.
A grown man sat in my office last week and cried like a baby. He had buried his wife and their first child less than a month earlier, both the victims of medical negligence. He came to us for help, wanting answers to why his young, healthy wife and his unborn son are now gone. He struggled to simply breathe. I thought of my wife and my two girls and I cried, too.
What do you say to a fellow like this? I confess that I was at a loss. Once we plaintiff lawyers could at least offer some comfort, inadequate as it was, that the civil justice system might provide answers and maybe, just maybe, some attempt at compensation. Now I had to explain that politicians in Austin have already decided what his loss is worth. I had to tell him that because his beautiful wife and the son that was to bear his name were the victims of medical negligence, the courthouse doors had been closed by the very people who represent his family in the Capitol.
Do you know what was most frustrating about this scenario? This man had not voted on Proposition 12 and had no idea of the damage that it did to the Texas Constitution. Before this tragedy befell him, he was one of the thousands of uninformed, misinformed or indifferent Texans who did not understand what HB 4 and Proposition 12 really did to their rights. He knows the truth now, unfortunately.
So what can we trial lawyers do about this ? Speak up. Educate others. Make sure your families, friends and clients are registered to vote and that they do vote. Get involved with your elected representatives. Let them know that we will hold them accountable for the promises made when they stripped away our rights. When you turn down cases that are no longer economical due to “tort reform,” make sure the potential clients know how to contact their senators and representatives in Austin, because odds are they voted in favor of HB 4.
And above all, keep fighting. Fight for victims. Fight for justice. Fight the negative stereotypes about trial lawyers and the “tort reform” propaganda. Fight for what is right and never, ever give up.
More and more these days, witnesses are presented at trial through video deposition excerpts, either by necessity because they are unavailable at trial (out-of-state witnesses, treating physicians, etc.) or by choice (to streamline the case or in situations where an adverse witness’s testimony will never get better than it was at deposition).
Some tips:
• Keep the video edits as short as possible, 15 minutes or less if possible. Don’t just pop the entire video in and hit “play.”
• Hire a good video editor. Get the edits on VHS and DVD formats.
• Have a copy of the edits and a written page/line designation to give to the court reporter for the record. It will save him or her from having to record the testimony at trial.
• Ask the judge in pretrial to instruct the jury that they will see and hear video deposition testimony, which is meant to speed the trial and which is to be given the same weight as if the witness was live at trial.
• Ask the judge to point out that the lawyers have edited the videos with the judge’s approval (here in Tarrant County, at least, the parties have to exchange designate portions of the depos they wish to use at trial and the court rules on objections to those designations prior to trial). Often the editing causes the image on the screen to jump around a bit or cut off a word or two. I had one juror tell me after trial that this made her suspicious that the attorneys were trying to pull a fast one on the jury by splicing the testimony. Get the judge to explain this before your jurors draw that conclusion in their minds!
• Think about the timing of showing your video depos. Consider interspersing them in between live witnesses. Be careful about showing them right after lunch or at the end of the day.
• As much as possible, coordinate your video edits with those to be shown by the other side. Jurors don’t like hearing the same testimony again when the defense offers their tender right after the plaintiff shows his.
• When taking the deposition, keep in mind that the jury may later see the video and they may compare your dress and demeanor during deposition with that at trial. For example, if you tone down your usual jewelry when you’re in trial, don’t forget to take off that flashy watch during the depo. Don’t be a jerk in deposition and then a choirboy in trial.
• In a lengthy trial, take a still shot of the witness’s face from the video depo and blow it up or show it on an ELMO during closing argument to remind the jurors of the witness.
Clearly, there is no substitute for a live witness. However, when done right, video depos can be effective and time-saving, so long as they are not too long and are not overused.
Jurors just returned a sentence of life in prison rather than the death penalty for Lance Heard, who was convicted earlier this week of capital murder in the shooting death of Fort Worth police officer Hank Nava.
I don’t practice criminal law and I don’t weigh in with opinions on most criminal trials because their courtrooms are not mine. But I’ve followed this murder trial pretty closely because I have friends on all sides of that case, including the police officer who eulogized Nava at his funeral and the lead defense attorney. Talk about being at opposite ends of the spectrum.
Regardless of one’s views on criminal defense lawyers, or the death penalty, or the justice system, or the police, or whatever, this was a fascinating, hard-fought trial. My hat goes off to the attorneys, the judge, and especially the jurors.
MINNEAPOLIS — The family of a 6-year-old girl who lost part of her intestinal tract after sitting on an open drain in a wading pool is suing the pool manufacturer and the country club where the accident happened.
Abigail Taylor faces a small intestine transplant that will keep her hospitalized for six months, said family attorney Robert Bennett. Her lifetime medical expenses could total $30 million and the country club carries only $6 million in liability insurance, he said.
This poor child’s intestines were sucked out of her rectum by an uncovered pool drain, a danger known within the industry for years (Sen. John Edwards, in his previous life as a trial lawyer, handled a similar case in North Carolina some time ago). To the “tort deformers” out there, I say look that little girl and her parents in their eyes and tell them her case is frivolous.
