Vanishing Jury Trial, Part 2

Earlier we wrote about Professor Gerald Powell’s amicus brief filed with the Texas Supreme Court in Coca Cola v. Harmar.  In the brief, Professor Powell criticized the Court for its continued willingness to reverse juries’ findings.  Professor Powell is not alone in his criticism of the Court.  Another coalition of law school professors has filed an amicus in the same case.

The professors (Lanny Hoffman from the University of Houston, Alex Albright from the University of Texas, Daniel Benson from Texas Tech, David Crump from the University of Houston, William Dorsaneo from SMU, Elizabeth Thornberg from SMU, and Robert Weringer from Texas Tech), who all are civil procedure specialists, all write on their own, without compensation.  The summary of the professors’ arguments is:

Our central concern, stated plainly and emphatically, is that it is troubling to see the Court reject a verdict in which the jury found it to be (at least) more likely than not that the Petitioners had violated the antitrust laws when the Court does not declare the evidence on which the verdict was based to be legally inadmissable. In the absence of a more searching inquiry, the majority’s opinion seems merely to have substituted its judgment for that of the jury.

The brief is not yet available on the Supreme Court’s site, but presumably, it should be available here in a few days.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Judicial Tort Reform in Texas

Regular readers and visitors to our website certainly know our views that the Texas Supreme Court often seeks results-oriented decisions to favor insurance companies and big businesses (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.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Car Wrecks: Insurers Playing Hardball

Last week, CNN ran a special report detailing how insurance companies, led by Allstate and State Farm, have adopted hardball tactics on car wreck claims in order to boost their profits.  Some excerpts of an article are as follows:

If you are injured in a minor car crash, chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur — even if the accident was no fault of your own.

That’s what CNN discovered in an 18-month investigation into minor-impact soft-tissue injury crashes around the country.

In an affidavit in a New Mexico case where Allstate is being sued, one of the company’s former attorneys said the strategy is to make fighting the company “so expensive and so time-consuming that lawyers would start refusing to help clients.”

Playing off Allstate’s signature slogan, one document recommends the insurer put boxing gloves on its “good hands” for those who insist on going to court.

The strategy, according to former Allstate and State Farm employee Jim Mathis, relies on the three D’s — denying a claim, delaying settlement of the claim and defending against the claim in court.

“The profits are good, and as long as the community, the public allows this to occur, the insurance companies will get richer and people … will not get a fair and reasonable settlement,” Mathis said.

This comes as no surprise to those of us practicing personal injury litigation.  Unfortunately, the practices seem to be getting worse, not better.  In the past, most of the abuses were seen in third party claims — claims where a third party is seeking to recover from the insurance company of the person that hit them.  But now, it seems these abuses are extending to first party claims — claims where people make claims on their own insurance (whether it is underinsured/uninsured motorist coverage or trying to get benefits for personal injury protection coverage).

We hope you keep this type of information in mind when making your next insurance purchase.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Tort Reform – The False Choice

As the legislature reconvenes in Austin, Texas Watch released a new study called THE FALSE CHOICE: DOCTORS OR ACCOUNTABILITY. The main premise of the study is that Texans were provided a false choice between access to health care and protecting patient rights when presented with tort reform’s Prop 12 in 2003.  The study makes three main findings:

  1. Prop 12 hasn’t increased access to health care.  Prior to the passage of Prop 12, the rate of new doctors in the state was increasing.  Since 2003, the rate of growth (for actual practicing physicians) is slower than the increase in the pre-Prop 12 years.  In addition, every underserved region of Texas shows slower growth than the pre-Prop 12 years.
  2. Prop 12 hasn’t provided any meaningful relief in malpractice insurance rates.  Market-wide, premiums have fallen about 13.5%.  But when compared with the pre-Prop 12 run-up in rates of up to 147%, the decrease is not substantial.  This is particularly true when considering many of the largest insurers requested rate increases greater than the 13.5% decrease in the months immediately following the passage of Prop 12.
  3. Prop 12 hasn’t helped Texas consumers.  The cost of health care continues to skyrocket, and numerous Texans injured by egregious conduct of negligent medical providers are left without a way to recover for their injuries.

It is unlikely that Texas consumers will find any relief in this legislative session, but perhaps the Texas Watch findings can be a lesson to other states (and the federal government) considering additional tort reform litigation.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Insurance Premiums — We’re Not Number 1

Great News.  According to an article in the Fort Worth Star Telegram, Texas is no longer number 1 in the country in costs of homeowners’ insurance.  We have recently slipped into second place behind Florida.  However, our drop could be shortlived.  Alex Winslow, director of Texas Watch, says that Florida has recently enacted homeowners’ insurance reform legislation that will lower Florida rates on an average of 21%

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Car Wrecks: Personal Injury Claims

Brooks had his follow up interview on News 8.  This time he addressed what to do for your personal injuries following a wreck.  To watch the segment, click here, then hit the play button in the “watch the video” box.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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