Austin Personal Injury Lawyer - General Personal Injury

Frivolous Defenses, part 3

Brooks Schuelke — Sat, 15 Mar 2008 12:27:12 GMT

I have a long-held belief that one of the root causes behind the increase in cost of litigation is the occurrence of more and more frivolous defenses asserted by insurance companies and defense lawyers. Today marks my third story about frivolous defenses, and this story comes from a 2006 patent case in Tyler. That case involved a suit against Microsoft. The judge found that Microsoft's improper conduct included:

1. Not producing a critical e-mail until the day before trial despite evidence that Microsoft's attorneys had the email in their possession for over a year.

2. Failing to timely produce data from a database (and even allowing a Microsoft witness to testify that the data didn't exist) despite the Microsoft lawyers having the data in their possession.

3. Allowing a Microsoft witness to prepare and testify about an inaccurate summary of the database data when they knew the summary was not accurate.

4. Allowing another Microsoft witness to give false testimony (under the dubious guise of a "mistake").

5. Marking 3,449 exhibits as potential trial exhibits when only 107 of those exhibits were introduced at trial.

As punishment for this conduct, the Court entered an order awarding the plaintiff $2,300,000.00 in attorneys' fees and "enhanced" the damages by $25,000,000.00

Unfortunately, this type of conduct is pervasive, but it isn't sanctioned enough. If judges would be more proactive about sanctioning the parties that abuse the system, it might help decrease the cost in many litigation cases.

Originally posted at InjuryBoard by Brooks Schuelke

Text Messaging While Driving

Brooks Schuelke — Tue, 11 Mar 2008 08:06:27 GMT

One of the hot topics in prevention of auto accidents is how to reduce the number of people (particularly teens) who text message while driving. There are numerous statistics, but I find that the video from the news story below shows a lot more than mere numbers. The story follows a Clemson study that puts teen drivers in a driving simulator and asks them to text message while "driving" in the simulator. The video documenting the difficulty driving is stunning, but more concerning is that many of the teens said they would continue to text message while driving even after their experience in the simulator.

Originally posted at InjuryBoard by Brooks Schuelke

Listserves, revisited

Brooks Schuelke — Mon, 10 Mar 2008 09:31:56 GMT

Earlier, there was an exchange among blogs, including Des Moines Injuryboard member Steve Lombardi, about the value of listserves for attorneys. Instead of rehashing each sides' views, I refer you to my earlier post about our trial lawyer listserves.

Steve had another post on the subject recently. And after reading it, I can't say that I disagree with anything he had to say. If I understand him correctly, one of his concerns is that his list serve is shared by defense attorneys. He is certainly justified about being concerned in that situation. In my case, each listserve I am involved with closely monitors its members to make sure that they are plaintiffs' lawyers and that they abide by the rules not to share listserve posts with non-members of the listserve. But even then, I am mindful that any specific facts about cases or judges might get leaked.

But even given that caveat, the listserve is a valuable resource. Most of my reasons are in my prior post, but in my opinion, the two biggest advantages of the listserve are: (1) it lets the best minds in the state cooperate to come up with the best strategies on issues important to plaintiffs' lawyers, and then to disseminate those strategies out to lawyers so that we can avoid bad precedent; and (2) it provides a great starting point for numerous legal research and drafting assignments.

After re-reading Steve's prior posts and my posts, although we have different points of view, I think we probably agree on this more than we disagree.

Originally posted at InjuryBoard by Brooks Schuelke

Tort Reform and Frivolous Defenses, Part 2

Brooks Schuelke — Thu, 06 Mar 2008 10:38:36 GMT

As stated in a tort reform post earlier, I believe one of the big problems driving the cost of litigation is insurance companies and defense lawyers asserting frivolous defenses and taking frivolous positions. I have griped and moaned about the lack of coverage, but I haven't done anything about it. Now, I'm going to quit being lazy and try to highlight some of these situations.

In November of last year, in the case of Samuel-Bassett v Kia Motors, the defense presented a frivolous defense that is a perfect example of my complaint. After the plaintiff prevailed in a class action, the parties submitted testimony as to reasonable attorneys' fees. In that case, the judge became highly upset after the defense used a hired gun expert to testify that the plaintiff's attorneys' fees should be reduced by 86%, including arguing that the plaintiff's attorney should only be paid at $235 per hour, $125 per hour less than what associates at the defense firm charged. In reaching a decision, the court noted:

Defendant requests reductions to plaintiffs' base fee on the basis of the testimony of Mr. Marquess. Mr. Marquess's review of the case was biased and intentionally factually restricted. The court rejects the concept that an expert is nothing more than a hired gun who applies "expertise" to whatever material is provided by counsel without any responsibility to request available information reasonably required to render an honest, valid opinion..The professional witness testifying without integrity, saying whatever their masters pay them to say, makes a mockery of the integrity of our system of justice.

Law blogger extraordinaire Justinian Lane nailed it on the head when he wrote, "The defense strategy is simple: try and make plaintiff work so unrewarding that injured consumers can't find a lawyer to take their case."

Originally posted at InjuryBoard by Brooks Schuelke

Text Messaging An Increasing Cause of Auto Accidents

Brooks Schuelke — Wed, 05 Mar 2008 08:04:01 GMT

There have been numerous stories lately emphasizing that text messaging while driving (an increasingly frequent occurrence) significantly increases the risk of auto accidents. For example, one study finds that a person texting while driving is six times more likely to be involved in a car wreck. And one study finds that texting is the number one distraction for teen drivers.

But statistics are often abstract and don't do a good job of driving a point home. However, two recent stories might help emphasize the dangers of texting while driving. First, a December trial highlighted the dangers of being in a car wreck while texting. A Massachusetts man is on trial after killing a teen on a bike while the man was driving and typing a text message. The driver thought he hit a mailbox and didn't realize his SUV had struck the boy unitl he drove back down the street several hours later to go to work.

And at the end of February, Missouri television station KSPR put the studies to the test and asked teen drivers to drive through a closed course while text messaging. The video and responses are priceless.

And if these two concrete stories don't help convince you to not text message while driving, perhaps the story of the driver who was texting and crashed into a patrol car will.

Originally posted at InjuryBoard by Brooks Schuelke

Tort Reform: Frivolous Defenses

Brooks Schuelke — Sat, 01 Mar 2008 08:53:30 GMT

The "tort reform" movement is one of the most successful marketing jobs in modern day America. And one of the key components of that marketing has been an effort to try and convince the American public that frivlous lawsuits are a big part of the problem. But that's far from the truth.

In my experience, the biggest factor in the cost of litigation is frivolous defenses --- insurance companies and defense attorneys pursuing defenses and taking positions that have little chance of success and that only drive up the costs for all involved. This week, there was the perfect example of frivolous defense conduct. In Massachusetts, a US District Judge issed a $10 million fine against Medtronics for the frivolous defenses and positions taken by its lawyers. In his order, the Judge stated as follows:

The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury's time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit.

And these just weren't run of the mill lawyers, they were attorneys from Dewey LeBoeuf, one of the largest law firms in the world. (Their website boasts that they have twenty-seven office on four continents. However, I didn't see anything about the fine in their news or press release section of the site). If lawyers of their statute engage in such outrageous conduct, you can imagine that lesser-skilled lawyers might only be worse.

Sadly, I have been complaining for some time that these stories never make the popular press. So instead of just griping, I'm going to take some time over the next few weeks to actually do something about it. I'm going to highlight some of the abuses that I think are driving up litigation costs. Many of the examples will come from older cases, but the conduct still goes on today.

Originally posted at InjuryBoard by Brooks Schuelke

Justice Delayed - Texas Supreme Court

Brooks Schuelke — Thu, 28 Feb 2008 14:19:12 GMT

Consumer watchdog organization Texas Watch has released a new report called Justice Delayed that addresses the growing backlog of cases at the Texas Supreme Court. The report made the following findings:

The Court took an average of 852 days (2.3 years) to dispose of a case in the 2006-2007 term, an increase of 24% from the 2004-2005 term.

Justices took an average 416 days to write an opinion after the Court has heard oral arguments. This represents a 31% increase from 04-05 to 06-07.
Justices Wainwright and Johnson have fallen behind their colleagues' output by routinely taking longer to write fewer opinions.
The Court's backlog has steadily increased from 14 in fiscal year 2000 to 60 in FY2007, an increase of 328%.
The Court has left 72 cases pending for more than a year. An additional 31 cases have been pending for more than 2 years.

WFAA news in Dallas picked up the story and ran their own story.

These delays are a huge concern. Cases usually don't reach the Supreme Court until they have gone through the trial court and then been heard by an intermediate appellate court. Thus, it's usually one or two years from the time suit is filed before the case even reaches the Supreme Court. Adding in another year or more of delay is a tremendous burden on the parties involved.

Originally posted at InjuryBoard by Brooks Schuelke

Health Insurance Company Seeks Spies

Brooks Schuelke — Fri, 15 Feb 2008 09:17:04 GMT

Unbelievably, Blue Cross of California had a policy of using its customers' doctors as spies to cancel coverage. The Los Angeles Times broke the story this week:

The state's largest for-profit health insurer is asking California physicians to look for conditions it can use to cancel their new patients' medical coverage.
Blue Cross of California is sending physicians copies of health insurance applications filled out by new patients, along with a letter advising them that the company has a right to drop members who fail to disclose "material medical history," including "pre-existing pregnancies."
"Any condition not listed on the application that is discovered to be pre-existing should be reported to Blue Cross immediately," the letters say.

The story was met with outrage from both politicians and doctors. The story continues:

"We're outraged that they are asking doctors to violate the sacred trust of patients to rat them out for medical information that patients would expect their doctors to handle with the utmost secrecy and confidentiality," said Dr. Richard Frankenstein, president of the California Medical Assn.

Fortunately, after the outrage, Blue Cross announced that they were halting the practice. But reading the article, I don't get the impression that Blue Cross is sorry they did it. One Blue Cross spokeswoman defended the practice, noting that they had been sending out thousands of these letters per month for quite some time without receiving any objections.

I commend the Los Angeles Times for this good work that helped stop this outrageous practice. I just wonder whether Blue Cross engages in the practice here in Texas.

Originally posted at InjuryBoard by Brooks Schuelke

Tips for Burn Injuries

Brooks Schuelke — Fri, 08 Feb 2008 11:04:53 GMT

This is National Burn Awareness Week. In my 13 or so years of doing this, I have seen few injuries that are more painful and devastating than severe burn injuries. In honor of some of those victims, I thought I would post links to a few resources to help us prevent burn injuries.

Shriner's Hospitals Tips To Avoid Burn Injuries --- starting a year-long emphasis on gasoline misuse
Remember that cigarettes are the number 1 cause of fire deaths
Home fire safety checklist from Northeast Community College
Tips from the Minnesota Department of Public Safety

Please take two or three minutes to review these tips. They may save the live of someone you love.

Originally posted at InjuryBoard by Brooks Schuelke

ACL Burn Victims File Personal Injury Suit

Brooks Schuelke — Wed, 30 Jan 2008 10:03:12 GMT

In September, we reported about a fire at the Austin City Limits Music Festival. Today, the Austin American Statesman reports that the fire victims have filed a personal injury suit for their damages. The article sets out the basis of the complaint:

The fire was caused, the suit says, when the propane tank was overfilled by the leasing company; the valve that was supposed to stop overfilling malfunctioned or was overridden; and heat from the exhaust pipe of the RV's generator, placed too close to the propane tank, caused the gas in the tank to expand and be released by a pressure valve.

Originally posted at InjuryBoard by Brooks Schuelke