Blackwater Files Legal Malpractice Claim

Late last week, Blackwater Security filed a legal malpractice claim against Wiley Rain, one of the law firms defending the company in a wrongful death suit brought by four former employees. The reports on the suit make allegations that attorneys, including current White House counsel Fred Fielding, were sloppy in their attempts to have the suit removed from state court to the Eastern District of North Carolina. Blacwater is arguing that this change of venue is denying them the opportunity to mount a more vigorous defense.

The reports on the suit are limited so it’s difficult to know the exact substance of Blackwater’s claims. But it’s hard to see from the information available how Blackwater can prove that it would have prevailed on the matter in federal court but lost in state court. The one situation I could foresee that happening is if the employees’ contracts had waivers or limitations of liability that might be enforced in federal court but not in state court. Regardless, it will be interesting to watch how this case plays out.

Bill Childs at the TortsProf blog has additional coverage on this legal malpractice claim.

Posted on: January 27, 2008 | Tagged

Justice Medina’s Saga Continues, plus more Supreme Court drama

As we have previously reported and updated, Texas Supreme Court Justice David Medina and his wife were indicted in connection with an alleged arson event at their home.  At the District Attorney’s request, the indictments were dismissed.  But the story appears to be far from over.  Today, the grand jurors are stating that they will re-urge the investigation when a new grand jury convenes in February.

But Justice Medina isn’t the only Texas Supreme Court Justice feeling the heat.  Justice Paul Green is now the subject of a complaint with the Texas Ethics Commission for allegedly using campaign funds improperly.

It should make for interesting election year.

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Personal Injury Law Round-Up #45

The big story of the week here in Austin is Texas Supreme Court justice David Medina being indicted for arson yesterday. After the indictment was handed down, the Harris County (Houston) DA, who himself is in hot water and may be forced to resign, plans to ask that the indictments be dismissed. Apparently, the grand jury, which is described as mostly Republican (as are Medina and the DA), is now pretty upset at those statements. In fact, the assistant foreman has come right out criticized the DA for trying to protect the judge and has been quoted as saying: “If this was a truck driver from Pasadena, he would already have been tried and convicted.” I’m sure this soap opera will be followed closely in the local and national press.

Now, on to the regular content, and we’ll start off this week with the traditional look at tort “reform”…

Texas Watch has released a study finding that states with no tort “reform” have better health care systems than those states that have passed tort “reform” measures.

The Texas Watch conclusion might actually be supported by the American College of Emergency Physicians. The ACEP issued their National Report Card of Emergency Medical Services. The report card showed Texas’s caps have apparently done wonders to improve emergency room care (and I say that tongue in cheek – Texas received a D in public health/safety, a D+ in quality/patient safety, and a D+ in access to care while receiving an A+ in medical liability). On the other hand, Connecticut received great grades in access, care and safety while getting an F in Medical liability.

The FDA has proposed a new labeling regulation that will assist pharma in its preemption fight. The Drug and Device Law blog also has a post on the proposed regs.

Speaking of preemption, the ACS Blog has a post on The Emerging Threat of Regulatory Preemption. (Via TortsProf)

We were apparently a little quick to praise New Jersey’s new wrongful death statute. New Jersey governor Jon Corzine vetoed the amendments this week.

On the medical malpractice front, Eric Turkewitz has an interview with the famous “Flea.”

Michael Townes Watson at TortDeform looks at the media’s perpetuation of the medical malpractice problem.

Chris Robinette at TortsProf has a post on damage caps and physician shortages.

In the lawyers behaving badly category, sometimes the idiocy of our brethren at the plaintiff’s bar amazes me. A Florida law firm allegedly retained two investigators who paid a cruise line employee to provide confidential settlement information. Walter Olson’s title on his post addressing the story is “Great Moments in Legal Ethics.” That’s appropriate.

On to lawsuits and personal injury related items…

As reported in both the WSJ and the WSJ Health Blog, waits in emergency rooms are increasing.

And once you get out of the ER into the operating room, it’s not much better. John Day has a post on surgical errors. The DC MedMal Blog also addressed the same study.

And in the ER, you might get care you didn’t ask for (or specifically rejected). In New York, a plaintiff filed a medical malpractice suit based on a forced rectal exam. Both the WSJ law blog and WSJ Health Blog reported on the story.

From the Chicago Tribune, an Illinois jury handed down a record $22 million medical malpractice verdict.

Ed Normund has a rundown of Orlando theme park injuries.

Ray Mullman at the South Carolina Nursing Home Blog examines a study showing the disparity, along race lines, of treatment received in nursing homes.

This was from last week, but Angela Dows of the Las Vegas Injury & Accident law blog reviews a court ruling that the Tennessee Titans can’t be held liable for a shooting allegedly involving Titans players outside a Las Vegas strip club. Good news for local Austin hero Vince Young and the rest of the Titans.

For those that handle trucking accidents, Jeffrey Lowe in the Trucking Accident Attorney Blog reminds you look for violations of federal motor carrier regulations.

And we have a couple of judgments that appear to belong in the “hard to collect” file. First, a judge ordered Libya to pay $6 billion for bombings.

And next, a former law firm associate was awarded $6 million in her suit against her ex-husband that tried to kill her. Perhaps all the plaintiffs should read the Asset Search Blog.

And finally, an Illinois patient sues her eye doctor for licking her toes. (Via Consumerist.)

And in the miscellaneous matters file…

Ron Miller at the Maryland Injury Law Blog has an interesting post on jurors and the internet.

Anne Reed at Deliberations has a brilliant post on capitalizing in trial on the natural tendency to pull for the underdog.

Personally, I’m a little uncomfortable with the thought of the Nintendo Wii as training for surgery. But I would be open to a good trial lawyer game so I might be able to beat my kids in some Wii related activity.

BlawgReview # 142 is up at Susan Cartier Liebel’s Build a Solo Practice. Next up is Public Defender Stuff.

Thanks again for reading.

Brooks Schuelke

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

Texas Receives a “C” In Emergency Medical Care

The American College of Emergency Physicians released its National Report Card of Emergency Medical Services, and Texas received a strong “C” grade.  The state received a “D” in public health/safety, a “D+” in access to care, and a “D+” in quality/patient safety.  But a strong “A+” in medical liability raised the state an entire letter grade to an overall “C.”

It’s great to see the medical malpractice reform really helping improve care that Texas patients receive (and, of course, we say that tongue-in-cheek).

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Texas Supreme Court Justice Indicted

Not many details are out, but KHOU tv in Houston is reporting that Texas Supreme Court Justice David Medina and his wife have been indicted in connection with an arson fire at their home last summer.  We’ll have more details and thoughts as the story unfolds.

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Legal Malpractice Occurs Everywhere

Legal malpractice cases can arise from any number of unusual situations. A legal malpractice trial started late last week against the Philadelphia firm Morgan, Lewis & Bockius, a 1,400+ lawyer firm. In that case, the firm is being sued by former client Purolite Corp.

According to the allegations in the lawsuit, Purolite sought advice from the firm on whether Purolite’s foreign subsidiaries could legally sell to a Cuban company. According to the company, the law firm told them that since the subsidiaries were foreign, there was no U.S. involvement and the sales were legal.

The United States disagreed. In 1996, the U.S. Customs Service began investigating the company, and the company was later indicted for making illegal trades to Cuba.

The legal malpractice trial now starts, and the jury will be asked to determine what advice the firm gave the company and whether that advice was proper.

Personal Injury Law Round-Up #44

This is an abbreviated, trial version of the round up.

First, tort “reform” and lawyers behaving badly…

The Chungs have become the new favorites of the tort-reform movement.

On the other side, Kia Franklin at TortDeform has Glenn Beck’s ER horror story.

New Jersey has voted to allow emotional harm in wrongful death suits. (Via Torts Prof)

The ATRA faults plaintiffs’ lawyers for providing allegedly unreliable medical information on the internet. The argument is based on a “study” performed by a pharmaceutical backed group. It’s a bit ironic, given the meteoric rise of drug advertising, that the pharmaceutical industry would gripe about inaccurate information.

Virginia Beach personal injury lawyer Richard Shapiro has “Dirty, Dastardly Deeds of Injury Defense Attorneys.

Overlawyered also has stories of attorneys behaving badly in discovery disputes.

On to the real lawsuit and litigation news…

The window washer that fell 47 stories and survived will file suit. (Via the Maryland Accident Law Blog).

Some of the Texas tobacco lawyers are suing one another over fees.

On a med mal related note, a new study found that the US ranks last for health care among industrialized nations, as measured by preventable deaths.

I missed it from last week (but Reno personal injury lawyer Steve Klearman reports on it this week so I guess it’s fair game), but the New York Times reported on a study that in 1 out of 3 cardiac arrests the staff takes too long to respond increasing the risk of brain damage and death. The Brain Injury News and Info Blog also posted about this last week.

A New York court held that, even with the assumed risk doctrine, a coach can’t hit a player in the head with a baseball bat.

The Mass Tort Lit blog has an update on the Vioxx settlement.

And on to the miscellaneous…

Waiting for me when I returned from the courthouse Monday was my copy of Presentation Zen. We all know that the root of trial work is the ability to tell a story and communicate. This book (and the author’s blog of the same name) and Beyond Bullet Points (by Cliff Atkinson, one of the gurus behind Mark Lanier’s VIOXX presentations) should be required reading for all trial lawyers.

Speaking of being trial lawyers, John Day has “What It Takes To Be A Great Trial Lawyer – Part 3” and “Part 4.”

From Bill Childs and the TortsProf Blog, tort law on the Daily Show.

And BlawgReview #141 is up across the pond at CHARON QC. Next week’s will be hosted by Susan Cartier Liebel’s Build a Solo Practice.

Thanks again for reading.

Brooks Schuelke

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

An Interesting New Website

The Robing Room — a new website that rates federal judges and some state court judges (Texas is not yet included). It will be interesting to see if this site gets any traction.

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

A Costly Missed Deadline

The Wall Street Journal Law Blog is reporting on a costly missed deadline. Morrison Foerster, one of the largest law firms in the country, obtained a judgment on behalf of its client, Toshiba America. The judge gave Toshiba 14 days to submit a motion for attorneys’ fees. Unfortunately for the firm, the firm’s courier became stuck in traffic and was 1 minute late in filing the motion. As a result, the application for approximately $1 million in attorneys’ fees was denied. A copy of the order is here.

In addition to the deadline issue, the case also presents questions about how to proceed in lawsuits. Looking at the underlying facts, it appears that Toshiba spent $996,865.83 in attorneys’ fees to obtain a recovery of $482,430.00. There are a lot things we don’t know (Was this case important for non-economic reasons? Was the agreement a contingent fee agreement? etc), but it appears there are other questions there for Toshiba to look at.

Posted on: January 9, 2008 | Tagged

Arbitration in the Legal Malpractice Context

In December, the Texas Supreme Court handed down an important arbitration decision in the context of a legal malpractice case. In Chambers v O’Quinn, 183 former clients sued John O’Quinn in 1999 alleging his firm committed legal malpractice in the representation and settlement of their toxic tort claims. Attorney O’Quinn’s fee contract contained an arbitration agreement. Upon O’Quinn’s motion, the trial court ordered that the parties go to arbitration, and the plaintiffs filed a mandamus appeal. That appeal was denied, and the parties proceeded to arbitration, where O’Quinn prevailed.

After the arbitration, the plaintiffs filed suit to vacate the arbitrator’s award. The trial court affirmed the arbitration award, and the plaintiffs appealed. On appeal, the appellate court dismissed the claim saying that it did not have jurisdiction. The Supreme Court disagreed. Noting that orders compelling arbitration can be reviewed after final judgment, the Supreme Court found that the courts did have jurisdiction over the plaintiffs’ post-arbitration appeal of the order to go to arbitration, and the Court remanded the case.

This case gives another life to those fighting arbitration awards. And for those that advocate arbitration as a quick and easy way to resolve disputes, please remember this almost decade-long saga.

Posted on: January 4, 2008 | Tagged

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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