Plaintiff’s Lawyers Serve As Reminders Of The Dangers Of Greed

Unfortunately, two plaintiff’s lawyers have made the news this month, and not in a good way.  In fact, both stories show the danger of greed and how people can become victims of their own success.

The first case involves Florida personal injury lawyer Louis Robles, the proclaimed King of Torts.  Mr. Robles pled guilty last week under a plea deal for federal fraud charges.  The South Florida Sun Sentinel article describing the charges and deal pretty much sums the story up:

Between 1989 and 2002, Robles collected more than $164 million on behalf of roughly 7,000 asbestos clients, according to court records. Some were World War II veterans. Some were retirees living on Social Security checks. Some died of asbestos-related diseases, leaving spouses and children to recover settlement funds.

Initially, the settlement checks were promptly dispersed — with Robles’ firm deducting up to 40 percent in attorneys’ fees. But around 1994, Robles began dipping directly into settlement proceeds without his clients’ knowledge to fund his extravagant lifestyle, prosecutors said.

During the mid-1990s, Robles and his wife were spending roughly $2 million a year on travel and living expenses, prosecutors said. Robles, who has filed for bankruptcy, also lost millions investing in ill-fated start-up ventures and obscure Hollywood movies, including one called Love God.

By September 2002, Robles had embezzled $13,522,160 from his clients and had only $25,000 remaining in trust accounts.

Unfortunately, the news wasn’t much better before that.  In November, the law firm of Milberg Weiss and two of its partners were indicted for allegedly paying three plaintiffs $11.4 million in illegal kickbacks in about 180 cases spanning 25 years — and then repeatedly lying about it to the courts.  Earlier this month, Bill Lerach, one of the indicted partners, entered a guilty plea requiring him to serve between 1 and 2 years in prison and to pay fines in excess of $8 million.

While both of these stories happen to be about plaintiffs’ lawyers, I think the real story is about greed.  Each of these guys were very successful at what they did, but they still found the need to break the rules to satisfy their greed.  And unfortunately, that’s becoming more and more of an issue in litigation, from all sides.  Certainly plaintiff’s lawyers are guilty of such conduct, but it’s showing up everywhere.  Insurance companies are increasingly taking unreasonable positions and using questionable tactics to minimize what they pay; in personal injury claims, health insurance subrogation companies are more aggressive in seeking every dollar; and defense lawyers seem to be taking more unreasonable positions that tend to escalate the conflicts instead of helping the parties either resolve disputes or get ready for trial.

We would all be well served if the parties took a step back and took the attitude that this isn’t a game where the parties try to extort every penny possible or to pay as little as possible.  Instead, while we should all zealously represent our clients, we also need to remember that our goals should include resolving disputes in a manner that’s fair to all sides and to not let greed get in the way of those goals.

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/.

Did Deaths or Publicity Prompt Crib Recalls?

As you have probably heard, Simplicity and the Consumer Products Safety Commission have recalled over a million baby cribs after numerous children were injured or killed while using the cribs. But now, many are starting to ask whether the CPSC made the recall soon enough.

The Chicago Tribune, which broke the story, had a startling follow-up today, where it questioned the timing in the recall. The first victim, Liam Johns, died in April 2005. When discussing the timing of the recall, the Tribune noted:

But the company and the Consumer Product Safety Commission didn’t warn parents across the country about the potentially fatal flaw in Simplicity cribs–not after Liam suffocated, not after more complaints about the crib rails and not after two more infants died.

Instead, the Tribune contends, the recall wasn’t initiated until Tribune reporters started investigating the story. And the facts seem to bear them out. The article continued:

Interviews and records show that the federal investigator assigned to Liam’s death failed to inspect the crib in his initial inquiry and didn’t track down the model or manufacturer.

“We get so many cases,” the investigator, Michael Ng, said in an interview this month. “Once I do a report, I send it in and that’s it. I go to the next case. We could spend more time, but we are under the gun. We have to move on.”

Only last week, after inquiries by the Tribune, did Ng return to California to find the crib. It had first been held as evidence by sheriff’s police and later was put in storage by a lawyer retained by the family.

It’s important to note that the Tribune isn’t the only one questioning the timing of the recall. ABC News also ran its own story questioning the timing.

Even more troubling in all of this is that it appears that the some of the same cribs were subject to another recall in February 2006. It’s hard to understand why these current dangers weren’t mentioned at the time of that recall.

And most importantly, at a time when the federal government continues to try and preempt state laws and regulation, this is another example of a failure by the governmental entity that is supposed to be watching out for the public’s safety.

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/.

Motion to Recuse, continued

We have previously written about the Motion to Recuse filed with the Supreme Court in a wrongful death/personal injury suit.  The Court has apparently denied the motion without hearing, and Osler McCarthy, the Court’s spokesman, says that the stories that oral argument on the motion was set for next week were mere rumors.  For more information, check Todd Smith’s Appellate Blog.

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 By Preemption

There is an interesting dichotomy about the importance of public safety.  This month, the Center for Progressive Reform released a white paper, The Truth About Torts: Using Agency Preemption To Undercut Consumer Health and Safety, discussing the Bush administration’s continued use of preemption as a tort reform measure.  The paper, written in part by law professors William Funk (Lewis & Clark), Sidney Shapiro (Wake Forest), and David Vladeck (Georgetown), describes the preemption phenomenon being pursued by the Bush Administration:

Although executive-branch support of industry’s claims of preemption of tort actions is not unprecedented, the systematic nature of this administration’s backing of industry tort-preemption claims—involving multiple agencies charged with implementing health and safety protections—substantially exceeds anything done in prior administrations. Prior to the Bush administration, agencies by and large took one of two positions. They either opposed preemption of state tort remedies or stayed on the sidelines and did not take a position. The Bush administration’s support for preemption of state tort law has appeared in two forms. One form has been to intervene on the side of industry in tort litigation by the filing of amicus briefs arguing that the plaintiff ’s claims against the corporate defendant are preempted by the agency’s regulations or its general authority over the health or safety matters at issue. For example, the Environmental Protection Agency (EPA) filed a brief in support of Dow’s assertion of preemption in Bates, reversing the position that the agency had taken a mere five years earlier in an amicus brief filed with the California Supreme Court. The other form of administration support for preemption began not long after the Court handed down its decision in Bates rejecting Dow’s and the administration’s preemption arguments. After Bates, the administration began taking the more aggressive approach of declaring in rulemaking preambles that state tort law is preempted by the regulation that the agency is issuing or proposing.

According to the authors, the Food and Drug Administration is a perfect example of both forms of attack.  The FDA now routinely files amicus briefs in pharmaceutical litigation to aid claims that state tort law is preempted by federal regulations, which, according to one authority, is a “dramatic change [from] what FDA has done in the past.”  But the FDA hasn’t stopped there.  The FDA has also started adding in the preamble to various rules that it intends for the rules to preempt state tort liability.  A notable example is FDA rules concerning the content and form of drug labeling.  The FDA argues that as long as pharma companies comply with its rules, then the companies shouldn’t be subject to state tort liability no matter how bad the warnings provided are.

So what’s the problem?  The general supposition behind any push for preemption is that the federal oversight is enough to protect Americans.   The idiocy of such a supposition is also on display this week as Congressional hearings start investigating toy safety.  A major focus of the hearings will be how the Consumer Products Safety Commission (which also advocates for preemption) could do such a poor job in protecting our kids.   (The Consumerist has a humorous liveblog of some of the hearings.  Thanks to Bill Childs for the link.)

It is clear now, more than ever, that the federal government has neither the will, nor the resources, to protect the public from those that are unscrupulous.  If preemption continues, and state government and personal injury suits are not allowed to help regulate industry, then product safety will become a bigger and bigger problem.

Click here for a prior post on the use of federal preemption as a method of tort reform.

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/.

Blawg Review #125

Kevin O’Keefe has posted Blawg Review #125.  We haven’t posted links to these in the past, but Kevin’s issue has some great information on blogging, and it appears he put a LOT of work into it.

Review # 123 was hosted by Austin’s own Texas Appellate Law Blog.

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/.

Auto Accident News — Your Car’s Black Box

People often hear about recovery of black box data following an airplane crash. But now, many new vehicles have a similar device, and we’ve previously written how the data recovered could make a difference for many personal injury lawyers. And while not a personal injury case, this morning’s Austin American Statesman had a great article describing how the black box data played a crucial role inn Austin murder trial. It’s a great concrete example of how this new technology is being used in 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/.

A New Weapon In The Fight Against Uninsured Motorists

Texas has recently enacted a new statute that requires auotmobile insurance companies to create a state-wide database identifying insured drivers, including whether the drivers’ payments are up to date.  If it works, the database will be accessible by law enforcement officials, and officers will know whether a driver is uninsured before the officer gets out of his car.   In addition, starting in late 2008 Texas will also begin sending letters to drivers whose insurance has lapsed notifying them that their coverage is expired.  Despite concerns about the possibilities of inaccurate information, the statute will go into effect in January.  Obviously, the ultimate goal of the program is to significantly decrease the number of uninsured drivers on Texas roads.

You can read more about statute in the Austin American Statesman or watch a news clip from News 8 Austin.

You can also click on these links for information about similar programs in Utah, Colorado and New Mexico.

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/.

Why Tort Reform Myths Are So Difficult To Combat

A recent article in the Washington Post reports on a study by Norbert Schwarz, a University of Michigan social psychologist, that provides insight into why tort reform myths, and other false statements, are so hard to combat. According to the article:

The federal Centers for Disease Control and Prevention recently issued a flier to combat myths about the flu vaccine. It recited various commonly held views and labeled them either “true” or “false.” Among those identified as false were statements such as “The side effects are worse than the flu” and “Only older people need flu vaccine.”

When University of Michigan social psychologist Norbert Schwarz had volunteers read the CDC flier, however, he found that within 30 minutes, older people misremembered 28 percent of the false statements as true. Three days later, they remembered 40 percent of the myths as factual.

Younger people did better at first, but three days later they made as many errors as older people did after 30 minutes. Most troubling was that people of all ages now felt that the source of their false beliefs was the respected CDC.

More importantly, the article goes on to note that denials and clarifications, despite their intuitive appeal, paradoxically reinforce the belief. The more the fact is denied, the more the participants in the study believe the fact is true.

While the article doesn’t address how this phenomenon might work in the tort reform arena (it primarily uses the myth of an Iraq backing of 9/11 as its example), it explains why the tort reform movement has been so successful.  The tort reformers took the upper hand and spread half-truths (eg portions of the facts surrounding the McDonald’s coffee case) or outright falsities (the Stella awards), and those of us opposing tort reform simply respond with facts to set the record straight.  But instead of combatting the beliefs, we’re probably reinforcing them.

So what are we to do? Remain silent? No, the article cites another recent study that found that accusations or assertions that are met with silence are more likely to be believed as true.

Instead, the article suggests that the best response might be a pseudo response. It states:

Mayo found that rather than deny a false claim, it is better to make a completely new assertion that makes no reference to the original myth. Rather than say, as Sen. Mary Landrieu (D-La.) recently did during a marathon congressional debate, that “Saddam Hussein did not attack the United States; Osama bin Laden did,” Mayo said it would be better to say something like, “Osama bin Laden was the only person responsible for the Sept. 11 attacks” — and not mention Hussein at all.

So instead of simply offering facts and analyses rebutting the tort reform myths, we need to change the framework of the debate.  Now how to do that is the more difficult question.

The study probably has a lot of relevance to litigation. The study seems to support the old adage that the key to winning the battle is how you frame the issues.  In a trial, instead of rebutting the other side’s claims (which the study suggets may simply reinforce the beliefs), the better course is to try and frame the issues to your liking.

Thanks to Peter Kelly of Houston’s Moore & Kelly, PC for the nod to the 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/.

A UT Law Oddity

As Univeristy of Texas grads, we’re always interested in blogs of fellow UT grads.  Two of the better blogs in the tort arena from UT Law grads are Bill Childs’ TortsProf Blog and Edmund Normand’s firm blog at Wooten, Honeywell in Orlando.

The odd thing is that even though these guys are now in different parts of the country, they both have a similar interest:  amusement park safety.  How do two guys who went to law school in Austin, where the closest “amusement park” is Schlitterbahn water park about 90 miles away, both end up with expertise in amusement park law?  Strange.

In any event, we recommend both blogs.  To read a couple of Bill’s thoughts on amusement park safety, click here.  To read some of Edmund’s thoughts, click here.

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/.

Good News From Austin For Homeowners

There’s some rare good news from Austin for Texas homeowners who have claims or lawsuits against their builders. Last Friday, the Texas Supreme Court handed down the opinion in Lamar Homes, Inc. v. Mid-Continent Casualty Company, and held that an insurance company owes a duty to defend (and likely a duty to indemnify) its homebuilder client under a commercial general liability (“CGL”) policy when the work done by the builder’s subcontractors causes defects in the home.

This holding is of utmost importance to both our homeowner and homebuilder clients. While many of the larger volume builders have the capacity to pay judgments or make repairs, many custom builders, which tend to be smaller operations, don’t. As a result, when making claims, two big battles were always (1) does the builder’s insurance cover the claim, and if not (2) does the builder have enough assets to cover any subsequent judgment. For almost all custom builder cases (since custom builders tend to not have employees and strictly use subcontractors to perform all the work), this case answers the first question in a way that’s favorable to both the homeowner making the claim and the homebuilder seeking insurance coverage for the claim.

Unfortunately, the victory may be short-lived. The likely result is that the insurance companies, as usual, will rewrite their policies to make sure they cover as little as possible.

Another summary of the case can be found don the Houston Litigation Blog.  For summaries of other Supreme Court decisions handed down last week, check out the Texas Appellate Law Blog. They’ll probably have summaries up 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/.

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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