This Month On Our Main Site

For the new readers, we’ve been trying to transition our traffic to the blog our main firm website. In the past month, we’ve had a series of posts on a Texas Supreme Court decision that makes it difficult, if not impossible, for a successful litigant to recover attorneys’ fees in uninsured/underinsured motorist litigation. The posts can be read here, here and here.

On the heels of that decision, we also have a post about a Texas Supreme Court justice who is asking the legislature to reimburse him for his own attorneys’ fees he incurred in defending an ethics charge.

There is also an interesting report from a local news station that Austin women are more likely to be injured in car wrecks than men, and a review of a luncheon with Stephanie Mencimer, a noted author on tort reform topics.

We hope one of these topics will interest you, and that you will take a look.

On Our Main Blog

As you may know, we’ve been trying to transition our traffic to our blog at our firm site.   Our two recent postings, not reflected here, are The Vanishing Jury Trial, part 2 (detailing various law professors’ attempts to get the Texas Supreme Court to reign in some of their opinions) and Some Texas Car Wreck Claims Get Tougher,   discussing a December Texas Supreme Court opinion’s effect on uninsured/underinsured motorist insurance claims.

Homebuyer Beware

A Dallas Morning News article from yesterday describes the long, tortured journey of two homeowners’ search for justice.  Bob and Jane Cull bought their home from Perry Homes more than ten years ago, but they are still waiting for some type of resolution.  After a lengthy delay and numerous appeals, the Culls were awarded over $800,000.00 by an arbitrator.  Whether they get to keep that award is now before the Texas Supreme Court.

The kicker?  According to the article, Bob Perry, the owner of Perry Homes, is the largest individual political donor in the country.  And among his political donations are hundreds of thousands of dollars donated to the supreme court justices now set to hear the case.

For a more detailed discussion of the case, including links to additional resources, check out the post on our main blog.

 As always, we are attempting to migrate our blog over to our firm’s site.  So please visit us there and sign up for our feed.

Insurance Companies: Service or Shenanigans

Last week, the Kansas City Star ran a series of articles discussing complaints in the insurance industry.  For a summary and discussion of the articles, please click here. 

Litigation as a source of reform

Today’s Washington Post contains a story documenting how the emergency room death of a teenage daughter and the resulting litigation and uproar led to a series of reforms that revolutionized the medical education system. 

 That kind of information is not news to us.  For years, trial lawyers have used litigation and the threat of litigation to help American citizens.   For example, trial lawyers have been responsible for increasing the safety of consumer products and for improving the working conditions of employees throughout the country.  And lawyers have helped reduce environmental pollution.

 The Washington Post article and the other gains from litigation illustrate how we view our work.  At our firm, “holding wrongdoers accountable” is more than a slogan — it’s our mission.

 You can learn more about us through our website.

Texas Personal Injury News: Safer Vehicles

This morning, the Insurance Institute for Highway Safety released its list of top safety picks for 2007 vehicles.  This list looks radically different from last year’s list because the Institute required all picks to have electronic stability control, a feature that has a proven track record in helping avoid one vehicle accidents.

We encourage anyone interested in buying a new vehicle to at least take a look at the list.  While safer cars might not be good for our business, they are good for our clients.

The Activist Texas Supreme Court

How many times have you heard it during this election cycle? We are constantly told that we need conservative judges that “enforce the law, not make the law” or judges that ” strictly interpret the law.” Two recent Texas Supreme Court cases demonstrate the fallacy in these statements.   In each of these cases, the Court chose to ignore the plain language of statutes and essentially create the law as they see fit.

In Alex Sheshunoff Management Services, Inc. v. Johnson, the Republican led majority ignores the plain meaning of the Texas covenant not to compete statute and clear precedent from a 1994 Texas Supreme Court case to find against the plaintiff.

A few days later, in FFP Operating Partners, LP v. Duenez, the Court again ignored the plain language of the Dram Shop statute to find against the plaintiff.  But what is really appalling about Duenez is that the Court originally found on behalf of the plaintiff in March of 2003.  However, after three members of the majority stepped down from the Court, the former dissenters convinced their new justices to withdraw the prior opinion and reverse the outcome.  This is a dangerous step in the jurisprudence of this state.  Our court system depends on a system of precedent.  Opinions should not change simply because prior judges have retired.

Sadly, these cases are not the exception, but the rule, for our Supreme Court, which often ignores statutes and the law in efforts to reach the outcomes it seeks.

Click here for more information about these opinions.

CEOs, the administration, and fraud! Oh My!

This is a fitting post for Halloween given the scary proposals being leaked. 

In the last six years, the corporate landscape has been overrun by weeds of corporate corruption and fraud, including criminal complaints against executives at WorldCom, Healthsouth, Adelphia and, of course, Enron. In 2002, even President Bush declared he was leading the charge to clean up the corporate landscape.

But corporate leaders and the Bush administration hope the American public has a short memory. Recent articles in the New York Times and Austin American Statesman detail how two new groups with very close ties to the Bush administration are trying to roll back many of the recently enacted protections.

One of the groups was recently led by Robert Steel, who was sworn in last week as the Treasury secretary for domestic finance, and who will now be responsible for helping formulate the administrations policies on corporate regulation. The other group’s leaders include Glenn Hubbard, former chairman of President Bush’s Council of Economic Advisors, and Don Evans, Bush’s former Commerce secretary.

Among these groups’ proposals, planned to be rolled out after the November elections, are plans that would limit civil liability of companies and executives (including forcing some shareholder claims to arbitration, which is more favorable to corporations), and plans that would make it harder for prosecutors to bring criminal cases against individuals and companies.

Frankly, it is shocking that business leaders would have the gall to request the changes while thousands of people continue to suffer from the Enron collapse and while the Enron cases continue to wind themselves through the court system.  That the administration, while maintaining their “tough on fraud” stance, is seriously considering these changes is equally appalling. 

Perhaps even more disturbing than the actual changes is the proposed method of the changes. Realizing that many of these changes likely would not be approved by Congress, they are being drafted so that the administration could implement them through SEC rulemaking or changes in enforcement policies at the Justice Department. One of the leaders even admitted to the Times that most changes were being proposed through regulation because “the current political environment is simply not ripe for legislation.” These type of back room regulations are but one more example of the administration’s willingness to usurp the authority of the legislative branch by changing the rules or refusing to enforce laws they don’t like.

Our government is founded on a system of checks and balances.  It is troubling when one branch decides they are above the other and seek to circumvent approval from the other branches by seeking out loopholes.  It is a dangerous precedent that should concern us all.

In fact, the proposals themselves demonstrate the dangers.  One of the proposals would require the SEC to initiate many types of lawsuits that are currently brought by private attorneys around the country.  If that happened, then the administration could coopt the protections left by regulating when (and if) the rules are enforced.  While this may sound far-fetched, remember that the groups are trying to initiate the proposed reforms by changing the way current bills are enforced.  It is not a stretch to imagine the SEC making its own decisions or even being ordered to only enforce the rules in strict situations.  As it stands today, private attorneys act as safety valves standing ready to enforce the law regardless of who controls the SEC.

 

Bucking the City

We just successfully finished the trial of a case where we represented several homeowners and their homeowners’ association in a suit against the City and a developer.  Short stories about the suit were written in both the Austin American Statesman and the Austin Chronicle.

Arbitration and the Godless Bloodsuckers

We have often written about problems with mandatory arbitration, but even we were shocked by the allegations made by Richard Neely, a former justice of the West Virginia Supreme Court, about the National Arbitration Forum, one organization that provides arbitrators for commercial disputes, in his article, Arbitration and the Godless Bloodsuckers.  Neely describes his solicitation to be an NAF arbitrator after he was no longer on the bench. Once he was assigned two cases, he discovered how insidious the process could be. For example, the arbitration company sent him a judgment form already filled out so that all he had to do was check the appropriate box for the credit card company to win and then sign his name. Not surprising, after he failed to award the credit card company all that they sought in the arbitration, he never received another case from NAF.

Neely is not the only person to criticize NAF. The Trial Lawyers for Public Justice have filed motions to strike the NAF from serving as arbitrators, citing things like NAF advertisements promising to reduce corporate customers’ bottom lines if they choose the NAF to arbitrate their disputes and close ties between NAF and various corporate entities that routinely use the NAF.

This type of information should be a wake-up call for consumers. Too often, consumers blindly agree to arbitration agreements without thinking.  Instead, consumers need to really read the agreements they enter into to look not only for mandatory arbitraiton clauses, but other issues as well. 

 If consumers do agree to mandatory arbitration agreements, they need to pay attention once disputes arise.  Too often, consumers get notice of an arbitration (and even lawsuits) and fail to respond.  The result is a default judgment entered against the consumer for the complete amount of the debt, and often additional fees.  Because arbitration awards are extremely difficult to overturn, consumers lose their rights to put their best foot forward on their claims. 

We once again emphasize that not all arbitrations are bad. We routinely recommend voluntary arbitration when it fits the situation. But mandatory arbitration agreements present many dangers to consumers.