By now, it appears that most of our regular readers have transferred to our main blog on our firm website. If you haven’t made the switch, we’ve had some interesting posts lately, including:
If you’re interested, please check us out.
We have transitioned this blog to the new blog on our main site. In the last month or so, our posts have included the following:
1. A look at some doctors requiring patients to sign “no sue” agreements before providing treatment;
2. A post on the phenomenon that hospital medical malpractice increases at night;
3. A story discussing the medical malpractice of an Austin area nursing home, and the effect of tort reform on its victims; and
4. A short primer on subrogation issues in Texas personal injury claims.
Regular readers and visitors to our website know our views about the Texas Supreme Court’s bias in favor of big business and insurance companies (we’ve previously written about this here, here and here). Our opinion has been reinforced by a law review article, Judicial Tort Reform In Texas, by Professor Dave Anderson at the University of Texas School of Law in the recent issue of the Texas Review of Litigation.
For the article, Professor Anderson surveyed Texas Supreme Court decisions for 2004 and 2005 to determine whether the Supreme Court is conducting its own version of Tort Reform. Professor Anderson’s startling findings including the following:
Defendants won 87% of the tort cases decided with opinion.
In the years from 1998 to 2005, the Texas Supreme Court decided twelve cases in which Wal-Mart was a tort defendant. In the rest of the country, state courts of last resort decided eighty-one such cases in the same time period. Wal-Mart won all twelve of its cases in the Texas Supreme Court, but only 56% of its cases in the rest of the country. Professor Anderson notes that there does not seem to be any significant difference between the Wal-Mart cases in Texas as opposed to the rest of the country.
Professor Anderson also tried to pinpoint the methods in which the Court was using to find for defendants. The most controversial method was the Court’s use of “no evidence” findings. In that situation, the Court looks at the evidence presented at the trial court and finds, despite jury findings to the contrary, that there is no evidence to support the plaintiff’s win. In the 2005 term, the Court sustained 79% of the no-evidence claims presented. Professor Anderson compares that with the Court’s 1986 and 1966 terms which each sustained only 25% of the no-evidence claims. Professor Anderson also notes that the Supreme Court has been active in adopting procedural rules that favor defendants.
Our criticism of the court isn’t alone. The article notes, “The authors of a law review article reviewing the court’s work say ‘politically motivated courts have taken up the task [of undermining the jury] by casting aside decades, even centuries of common law precedent to limit the role of lay jurors in deciding societal norms.’ An appellate judge has written that ‘the appearance of bias [in favor of defendants and insurance companies] leads one to the conclusion that the current Court favors its judgment over that of a jury.’”
Professor Anderson even quotes James Baker, a Republican Texas Supreme Court justice from 1995-2002 as saying that what the court is now doing with its no-evidence reviews “cannot be reconciled with the Texas Constitution’s prohibition of the Texas Supreme Court weighing evidence and judging credibility.”
Unfortunately, the full article is not yet available online (with the exception of a Lexis, Westlaw, or similar library). However, we encourage anyone interested in civil justice issues to contact the Review of Litigation and order a copy of the full article.
The second part of Brooks’s interview with News 8 was shown this week. To watch a replay of the interview, click here and hit the play button.
And not to beat a dead horse, but we’re trying to slowly transfer the blog to our firm site. Please check us out there for more frequent posts.
We’ve often written about the demise of the jury trial and what we believe is one of the root causes — the appellate courts’ continued willingness to overturn jury verdicts. Recently, Professor Gerald Powell, on his own time and spending his own money, filed an inspired amicus brief with the Texas Supreme Court. Professor’s Powell’s brief attacks the Court’s propensity for overturning jury verdicts and describes the damage that the trend will have on jury trials. To read the opinion and a more thorough discussion of the issue, please visit our main blog (as many of you know, we’re slowly moving this blog to our main firm site).
A recent confidential industry survey of truck drivers revealed some startling facts. In the survey, 77 percent of the responding truck drivers admitted that they had deliberately broken trucking regulations in the past, and 55 percent said they were still breaking the rules. The drivers said that the most common violations were logging time as off-duty while actually on duty (78 percent), using more than one logbook (21 percent), and indicating that a team driver is operating the vehicle when they really are not (11 percent).
Frankly, we’re not sure how to respond. Trucking cases are always subject to questions about the driver’s hours and the legitimacy of their logbooks. This type of data only confirms all of our fears.
And, this is particularly disheartening to those of us in Austin and Central Texas. With the passage of NAFTA, truck traffic continues to make up a bigger and bigger percentage of traffic in Central Texas.
At Perlmutter & Schuelke, LLP, we continue to handle claims arising from trucking accidents, not only in Austin, but all over Texas. For additional information on trucking accidents, please visit our website.
And as always, we are migrating our blog to our firm website. Please visit us and subscribe to our new feed.
This week, the Consumer Federation of America has released a new study finding that the nation’s homeowner’s and automobile insurance companies are gouging consumers by (1) making excessive charges; and (2) shifting risks from their policies to consumers (by decreasing coverage) and to taxpayers (by getting the government to subsidize some losses). For more information and links to the article and commentary, visit our main firm blog.
And as stated earlier, we are slowly trying to shift our blog to our main site, so please visit us there. And while you’re there, please sign up for our feed to get regular updates on the civil justice system.
Trucking accidents are a concern for all drivers, but two new articles in the New York Times and Chicago Tribune really bring those dangers to light. Each article highlights the dangers caused by truckers’ long work hours, though they both have different views on the cause of the long work hours.
For more, click here.
In time for the holidays, the US Public Interest Research Group has just released their 2006 list of dangerous toys. There are the usual suspects of toys that may have choking hazards or dangerously loud noises, but two new threats show up this year. Increasingly popular are toys that contain small, high powered magnets. These magnets are so strong that if two or more are ingested the attraction can pinch or even tear right through internal organs causing serious injury or death. Heeding the risk, the Consumer Product Safety Commission yesterday recalled many of the popular Polly Pocket dolls because of the magnet danger.
The Public Interest Research Group also began testing toys for lead, and a surprising number of toy jewelry sets had alarmingly high rates of lead.
If you’re buying for your kids, grandkids or others, please take a few minutes to look over the list.
For years, arbitration clauses have been popping up in the fine print of consumer contracts almost to the point where it is hard to find a consumer contract that doesn’t require mandatory arbitration. If you have a potential claim against a credit card company, bank, phone provider, architect, or even an attorney (and shame on the attorneys putting arbitration clauses in their contract), then that claim is likely subject to an arbitration clause. We’ve even had drawn out fights over an arbitration agreement in a contract to purchase logs for a client’s log home.
According to the businesses inserting the clauses, arbitration should be used because it is more efficient and can reduce the cost of litigation for all parties. If that is true, you would expect businesses to insert arbitration clauses into all the contracts that businesses use between one another. According to a study done by two professors of law, that expectation is wrong.
Theodore Eisenberg, a Cornell Professor of Law, and Geoffrey Miller, a professor of law at NYU, have recently released a draft of their study The Flight From Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in Publicly Held Companies’ Contracts. In the study, the professors analyzed 2,414 contracts that were filed with the Securities and Exchange Commission, and found that companies that were quick to use arbitration agreements in disputes with consumers rarely used arbitration agreements in contracts with one another. The study found:
The most striking result is the paucity of arbitration clauses, even in international contracts. Our results contradict some received wisdom but are consistent with the 1998 Cornell University survey finding that relatively few large corporations use arbitration frequently…
Our arbitration clause rate findings contrast with the widespread use of mandatory arbitration clauses in certain standardized consumer contracts, such as credit card and mobile phone agreements…
Some suggest that arbitration clauses in some consumer contracts may be being used for some other purpose, such as a mechanism to completely avoid dispute resolution, leaving consumers with no effective remedy, or to gain advantage in dispute resolution over parties who cannot realistically negotiate. In this view, arbitration clauses are being used to avoid class actions, regardless of the effect on the fairness of the dispute resolution process.
These findings don’t surprise us. We think most consumer attorneys agree with us that arbitration clauses aren’t put in place for efficiency, but to make it more difficult for consumers to bring claims, and when they do, more difficult for them to prevail. Although arbitration can be good for the right case if done in the right manner, we continue to believe that mandatory arbitration agreements unnecessarily take away our clients’ rights to a jury trial. Apparently, some businesses agree.
