The differences in representing small businesses and personal injury victims

Readers that have spent any time skimming our website know that, for the most part, our lawyers and attorneys represent individuals in personal injury litigation or small to mid-sized business in commercial litigation.  The other day, someone asked about the differences in representing each set of clients.  For the most part, there aren’t many differences.  In each, we tend to think that we’re representing the Davids against the Goliath big businesses or insurance companies.  Both sets of clients usually have to rely on contingent fees to be able to pursue the litigation.  And for both sets, the result of the case is often very important for their future. In personal injury litigation, that may mean being able to pay off huge medical bills, recovering lost wages, or finding ways to afford needed medical care.  In business litigation, the survival of our clients’ businesses may lay in our hand.  Admittedly, there are some differences, but on the whole, an attorney or lawyer’s representation of a small business or a personal injury victim are very similar.

The big differences come in the defendants.  Although there are exceptions, most of the defendants in personal injury cases just made a mistake.  A driver may have taken his eyes off the road; a doctor may make a mistake in surgery.  While these actions are negligence and actionable, when it comes down to it, most personal injury cases are mistakes.

That’s not the case with business cases.  Most of our business cases involve conduct that is simply fraudulent and deceiving.  You’d think, as lawyers, we would be used to seeing the worst of people.  But business cases never cease to amaze us in the ways that people are able to be creative to lie, cheat and steal from one another.  Partners steal from other partners; businesses lie to their customers or prospective business relationships; attorneys abuse their fiduciary relationships and steal from their clients.

Now, there are exceptions to each.  There are personal injury defendants that can be viewed as true bad actors: the drunk driver; employers who systematically ignore safety requirements and virtually assure a catastrophic on-the-job injury will occur; the doctor that performs unnecessary surgeries to run up the bills.  And there are innocent defendants in small business litigation.  Sometimes cases involve simple disputes over interpretations of contracts.  But overall, from the attorney and lawyer perspective, the biggest consistent difference between the two types of cases is the egregious and deceitful conduct routinely found in business litigation.

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Texas Injury Law Blog

Sad to say I didn’t notice it, but Blake Bailey, a Tyler personal injury lawyer and fellow member of the Texas Trial Lawyers’ Association, is once again actively posting on his Texas Injury Law Blog.  I recommend it for anyone with an interest in Texas personal injury law.  He’s got some interesting posts on whether a driver is a permissive user of a vehicle (thus causing the insurance to kick in), a look at a relatively new issue for personal injury lawyers — how courts should treat medical expenses paid by health insurance companies, and federal preemption in pharmaceutical litigation.   If you’re in Tyler or East Texas and need a personal injury attorney, you might give Blake a call.  Of course, if you need a personal injury lawyer in Austin, we prefer that you call us.

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

Small Businesses: Unwitting Victims of Tort Reform

We routinely represent small businesses, not only from Austin, but from all over Texas, in disputes and litigation. And it seems more common that small business owners are victims of improper conduct by larger corporations, and they are ending up in our office, seeking our advice on how to enforce their contracts or how to get relief from the other party’s fraud. We have consistently been warning our (often-Republican) clients that they are being used as pawns and that their ability to do business is being threatened by their continued support of tort-reform. Sometimes they listen, but sometimes our warnings fall on deaf ears.

But in the last ten days, two major business publications have included articles that may help in our warnings. On July 1, Jeffrey Pfeffer, a professor at the Stanford Graduate School of Business, wrote IN DEFENSE OF LAWYERS (No Joke), in Business2.0 Magazine. In the article, Professor Pfeffer argues that  attorneys and the tort system are necessary to help keep the economy humming. In the article, he writes:

The next time you want to complain about “frivolous” lawsuits, picture doing business in a world where promises can’t be relied on and you can only deal with people and organizations you already know well. There are undoubtedly abuses and problems in our current system, but the cost of punishing malfeasance is a necessary and small price to pay for running a modern economy.

On July 9, Business Week ran AFTER THE $54M DRY CLEANER LAWSUIT, which interviewed owners of small businesses and members of national small business organizations and asked about their concern of being sued. The article found that, for the most part, small business owners weren’t concerned about being sued. And, in fact, for many, the opposite was true. In discussing “tort reformers” use of small businesses to push tort reform, the article echoed our warnings to clients:

That may not reassure small-business owners who are being asked to get behind tort reform, particularly because they can find themselves at the plaintiff’s table. “Very often it’s small companies being harmed by larger corporations and needing to seek redress through the civil justice system,” says Jeff Milchen, cofounder of the American Independent Business Alliance.

While the US Chamber of Commerce continuously argues that one lawsuit could put many small businesses out of business, the opposite is also true. Many small businesses couldn’t survive being the victim of one large improper act (whether it’s the breach of a big contract or misrepresentations about a deal) without the aid of the tort system.  Unfortunately, many small business owners listen to the propoaganda and let themselves be used to try and change the system in ways that often come back to harm themselves.

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

Bad News from Austin: Texas Supreme Court Again Votes Against Texas Personal Injury Claimants

Last Friday, the Texas Supreme Court continued with its well established pattern of choosing insurance companies over individuals. Most health insurance policies contain a subrogation clause that says that if a Texas personal injury victim recovers for medical expenses that a health insurance company paid then the personal injury claimant will reimburse the insurance company for the amounts the company paid. The problem arises when there is not enough money to go around. For the last twenty-seven years, led in part by cases from our Austin court of appeals, Texas has followed the made-whole doctrine that says that insurers don’t get paid back until the victim is made whole. Courts have recognized that people buy health insurance to protect themselves and that if someone is left holding the bag, it ought to be the insurance companies.

Friday, the Supreme Court issued the decision of Fortis Benefits v. Cantu that threw twenty-seven years of law into upheaval. Now, imagine you’re in a serious car wreck where you have a surgery that costs your health insurance $25,000.00. And imagine you’re off recovering from the surgery for a long period costing you tens of thousands of dollars in lost work income. Unfortunately, the other driver only has $20,000.00 of insurance coverage. In the past, you’d be entitled to keep that money to compensate you for your lost wages, pain and mental anguish, inability to play with your kids or loved ones, etc. But now, insurance companies will use the new case to argue that they should be receive the entire $20,000.00 and that you get nothing — not a penny.

But don’t fear. We, along with other Texas personal injury attorneys and lawyers, are working hard to brainstorm and come up with the best legal positions possible to protect the injured. The fight to protect the ordinary citizens of Austin, in particular, and Texas, as a whole, may be harder, but we’re not giving in.

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Sanctity of the Jury Trial?

“I don’t believe my role is to replace the verdict of a jury with my own unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair.” Those were the words of President Bush in his own autobiography (as quoted in the article, The Texas Clemency Memos) to describe his review of execution of prisoners in Texas.

Apparently, that view has changed. President Bush commuted the prison sentence of Vice President Dick Cheney’s chief of staff Scooter Libby deciding that the judge’s sentence, made in accordance to federal mandatory sentencing guidelines (pushed through by Republicans who thought judges were being too lenient on criminals), was too harsh.  The conduct is ironic, because as recently as last month, Attorney General Gonzales and the administration were pushing Congress to enact legislation that would make it harder for judges sentencing criminals to depart from the sentencing guidelines that Bush is now ignoring.

This is but another example of the continuing usurpation of power of juries and trial court judges. As we’ve previously written (here, here and here), that problem is most evident at the Texas Supreme Court, where big businesses and insurance companies prevailed in 84% of the cases during the 2005-2006 term and where the justices upheld defendants’ claims to reverse jury awards 81% of the time.

The irony in the unwillingness to overturn jury verdicts in criminal death penalty cases versus the willingness to overturn civil jury verdicts in favor of plaintiffs is the quality of representation. Often, criminal defendants are represented by appointed counsel who don’t have the time or resources to present a vigorous defense. On the other hand, civil defendants are usually represented by well-funded, qualified attorneys hired by big corporations or insurance companies. If one of these groups had a claim that the verdicts should be overturned because they were wrong or because they didn’t receive fair representation or a fair trial, it would be the criminal defendants.

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

Schuelke Law 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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