Austin Intersections Among Worst In US

ih 35Yesterday, I spent almost all day up at the legislature with plaintiff’s attorneys from around the state for a hearing on an important piece of personal injury litigation. We were sitting and talking, and one of the attorneys from out of town asked me if there are any particular intersections in town that are notoriously bad. I responded that IH 35, in general, was bad, but that I didn’t think any intersection was worse than any other.

I was probably wrong. This morning, I found a link to Forbes 2009 list of America’s Worst Intersections. The list is dominated by road in LA and New York City (and Chicago), but downtown Austin plays a prominent role. Coming in at number 71 on the list is the IH 35/Riverside Drive exit. At 74 is the IH 35/MLK (exit 235), and at 87 is the same stretch of road with exit 235A. Finally, at 92 is the IH 35/12th-15th street exit. Incidentally, there is only one other section of Texas roadway on the list with a part of Loop 820 in the DFW Metroplex showing up at 93.

Now, the list is only for bottlenecks, but I have to think that the increased traffic has a relation to wrecks in the area.

It sure makes me glad that I use MoPac as my North-South roadway most of the time.

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/.

Could Lane Splitting Become Legal In Texas?

Take a few seconds to watch a portion of the below video before reading the rest of this post. (Don’t watch the whole thing. If you’re like me, it will give you motion sickness.)

The video is an example of lane splitting, the tactic of motorcycles driving between lanes of traffic. It looks dangerous to me, but yesterday, the Texas Senate voted to suspend constitutional rules and approved Senate Bill 506, which would make some lane splitting legal in Texas. The proposal is now headed to the Texas House.

Why do we need this? The bill’s supporters suggest that lane splitting would help improve traffic because the motorcycles could move up, vacating lanes for other cars and trucks. Are they kidding us? I’m not sure what kind of traffic Senator Carona, the bill’s sponsor, sits in, but the problems I see in traffic have a whole lot more to do with too many cars and trucks and not motorcycles. If we allowed 18 wheelers to engage in lane splitting, that might help traffic, but I can’t see any marginal improvements from allowing the occasional motorcyclist to move up.

To me, this seems to be a disaster waiting to happen. In rush hour traffic, it’s hard enough to change lanes and get to exits without adding the extra step of watching for motorcyclists speeding up behind me. And that’s not to mention the ticked off car drivers that drive close to one another to try and cut off the motorcycles. I just don’t see how this can be done safely.

If you share my concerns, you can call your state representative to try to derail this wayward bill.

For more on this, Fox 7’s Rudy Koski had a great report on last night’s news.

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/.

Twitter, Facebook and Google! Oh My! Jurors, Please Follow Instructions.

A numb er of years ago, while I was in law school, I received a call from my mom, and she started asking me about the elements of a criminal assault case in Texas. I don’t know about all of you, but this was not the question I expected from my mom. I asked her why she wanted to know, and she replied, “I have jury duty, and we’re trying to decide whether to convict the defendant.”

“Didn’t you get an instruction not to talk to anyone about the case?” I asked. “Yeah,” she replied, “but I didn’t think that applied to you.”

And that’s how it goes. Despite judges’ best attempts to instruct jurors not to look to evidence outside the case, jurors have always found a way to do it. But now, with the internet and smart phones, it seems that ignoring judicial instructions is becoming too easy. Yesterday’s New York Times discussed the trend of “Google mistrials” that are sweeping the nation, creating a firestorm in the last two weeks.

Last week, a mistrial was granted during the middle of an eight week federal drug trial in Florida after nine of the twelve jurors admitted to using the internet to do research on the case. Also last week, a defendant in a lawsuit said it plans to appeal a $12.6 million verdict rendered against it after a juror used Twitter to send updates during the trial. And this week, defense lawyers for former Pennsylvania state senator Vincent Fumo asked that a guilty verdict be thrown out after one of the jurors in that case used Twitter and Facebook to send updates.

So the question is, “where do we go from here?” In my opinion, there are two separate issues. The jurors using Twittering and the Facebook don’t really concern me that much. In most cases, we’re talking about 6 or 12 jurors on the eventual jury. It shouldn’t be difficult for the court or the lawyers involved with cases to monitor the Facebook or Twitter pages of 6-12 people during the course of the trial. And I suspect that if the judge gives the jurors an instruction not to use Facebook or Twitter and also tells the jurors that court personnel will be monitoring their accounts to make sure the jurors are following the instruction, that the number of posts or tweets will drop off dramatically. Now, there might be some jurors with anonymous accounts that are hard to find, but I think those would be a very small minority.

The bigger concern for me is the potential for jurors to perform internet research. There’s just no way to police jurors and stop internet research. I think the best judges can do is to instruct the jurors about the problems and then just hope for the best.

On the other side of the ball, the lawyers involved have to know that the jurors could potentially be researching the case via Google. That probably means we’ll have to have some other considerations in the way we try the cases. I’m not sure what form that would take, but at a minimum, we need to have staff members perform popular searches about the parties and the case so that at least we know what’s available to the prospective jurors.

Anyone else have thoughts on these matters? I’d love to see the thoughts as a comment or you can send them to me on Twitter (@bschuelke).

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 measures help patients “receive the justice they deserve.” Are you kidding me?

I thought this was a case that we could all agree upon.

David Fitzgerald went to his doctor to receive medical treatment and ended up with an infection that led to the amputation of both arms and legs. The case went to trial in February, and Fitzgerald prevailed. A jury awarded him $6.72 million in economic damages (things such as lost income and medical expenses) and also awarded an additional $11 million for his pain and suffering and impairment. Due to Texas medical malpractice limits, the $11 million was reduced to $250,000.00.

I thought this was a case where everyone could agree that the result was unjust. Even the tort reform lackeys talking about the case didn’t defend the result, but just said that limits are working. (They say limits are working because there are fewer malpractice cases. No kidding? If you change the rules so that the recovery in most cases isn’t high enough to justify the excessive cost of pursuing a malpractice case, of course, the number of cases will go down. But is that the proper measure of whether the limits work? Maybe we ought to learn something else from it.)

I didn’t think I’d really see anyone defending the result in the Fitzgerald case. I was wrong. Dr. Evelyn Tobias Merrill, of Fort Worth, had to write in to the Fort Worth Star Telegram and defend the verdict. As Dr. Merrill argued, “this case demonstrates that civil justice reforms in Texas enable patients to fully recover medical costs and living expenses associated with an injury…Reforms do work. They ensure that patients who have been injured receive the justice they deserve.”

Seriously, that’s justice? A man loses both arms and legs due to a doctor’s error and recovers $250,000 for his losses, and that’s justice? I try to think about what it would mean to me. No more hugging my wife. No more games of football or basketball with my kids. No more walking the kids to school. No more wrapping my arms around my kids to try and comfort them when they’re hurt. No more walks around the neighborhood with my dog. No more standing behind a grill with a beer, cooking for my buddies. No more Texas football, basketball or baseball games. No more golfing. No more volunteering around town.

For me, that’s not justice. And I suspect that if Dr. Merrill was the victim, she’d agree it wasn’t justice for her either.

Dr. Merrill’s letter and a response from a Dallas attorney are 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/.

Cornyn: Pot Meet Kettle (Or How Should Texas Select Judges)

“A judge’s job is to apply the law and, in the absence of a jury, to decide the facts of the case. This job description should not include advancing a personal or partisan agenda from the bench. When a judge brings a personal agenda or partisan commitments to the bench, the rule of law suffers, and invariably public confidence in our system of justice is undermined.”

That’s a great quote; one that you might expect from a constitutional law scholar or something. But you wouldn’t expect it from a former judge who was a prime example of putting a partisan agenda before the law. And yet, that’s exactly what Senator John Cornyn did this week in a commentary he wrote for Texas Lawyer magazine. (I guess I shouldn’t be surprised, this is the same guy that wants to use Texas, the state with the highest rate of uninsured in the country, as a model for the nation on healthcare.)

Perhaps forgetting (or hoping to ignore) his record as a judge, Cornyn addresses judicial selection, a hot topic in Texas. Texas is one of the few states that allows election of judges by political party, and some are questioning whether that should be changed. And the criticism comes from both sides. On the consumer side, groups such as Texas Watch have been calling for reform for years, and now, after Democrats swept through the courts in Dallas County and appear to be heading the same way in Harris County, Republicans are jumping on the bandwagon too. In his “State of the Judiciary” speech, Judge Wallace Jefferson spent a lot of time talking about the problems with partisan elections, even though some say Jefferson’s Texas Supreme Court exemplifies the biggest problems with the judiciary.

While many of us agree that partisan elections are bad, there is a lot of disagreement over the best alternative. Right now, the darling of the politicos is the prospect of merit selection where the governor appoints a judge and then the judge faces retention elections later.

I say, “no thanks.” We don’t need judges beholden to the governor or any other branch of the government. Incumbents already win an extraordinary high percentage of the time. We don’t need a governor (of any party) picking judges that are hard to oust.

What do I think we should do? I suggest non-partisan elections. Get the “R” and the “D” off the ballot, and let people make decisions based on merit. I’ll talk about the reasons why I like this over the next 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/.

Ponzi Schemes Make For Strange Bedfellows

Lawsuits about Ponzi schemes seem to be all the rage now.  At the end of last year, mega-firm Holland & Knight formed a Madoff Advisory Group.  The head of the group stated that:

Holland & Knight is already assisting a number of companies, financial institutions, charitable foundations and individuals who have been impacted by the Madoff entities. We are providing important guidance in assessing claims against the Madoff entities, in positioning our clients to reduce the likelihood of third party claims against them, and in accessing and providing avenues for governmental relief for aggrieved parties.

And at the end of last week, Texas law firm Strasburger & Price was one of two law firms that filed a multi-billion dollar lawsuit against insurers stemming from R. Allen Stanford’s alleged Ponzi scheme.

The problem?  In May, Holland & Knight was sued for allegations that its conduct contributed to the Ponzi scheme of Florida investment advisor Arthur Nadel.  And Strasburger & Price was a defendant in a lawsuit alleging that the firm helped one of its clients defraud investors through an oil and gas Ponzi scheme.

I don’t know how the case against Strasburger turned out or how the case against Holland and Knight is going to turn out.  But I think it makes sense that if you’re hiring a firm to pursue a claim based on a Ponzi scheme that you ought to make sure the firm hasn’t been accused of participating in Ponzi schemes itself.

Is A Company Responsible For A Wreck Caused By One Of Its Employees?

This question recently came up from a potential client, and I wanted to try and answer the question for others. In Texas, there are several situations where a company is liable for a wreck caused by its employee. (And I’ve included an image of a truck wreck because most of these issues come up in trucking cases.)

The first situation is called vicarious liability or respondeat superior. In Texas, an employer is liable for injuries caused by its employee when the wreck happens while the employee is in the course and scope of his employment. Not a hard standard to meet. There are a bunch of cases discussing the grey areas of what course and scope includes (driving to or from work; employee detours from his business driving to conduct a personal errand; etc.), but other than those boundaries, this is a pretty easy question and the easiest way to establish liability. As an aside, if the employee is in a company owned vehicle, then there’s a presumption that he was acting in the course and scope of his employment while the employee was performing his job and while the employee was driving to and from work.

There are also important related claims where the employer may be liable for its own conduct. The first instance of that is negligent entrustment. Under that theory, an employer can be liable for entrusting a vehicle to an employee that the employer knew or should have known was an unlicensed, incompetent, or reckless driver. These usually occur in situations where the driver has a history of tickets, wrecks, a drinking problem, or something similar.

The next theory is negligent hiring, retention and supervision. In Texas, an employer has a duty to investigate its employees’ skills before hiring them. The claim here is similar to a negligent entrustment theory, but due to some legal technicalities, the negligent hiring, retention and supervision claims are much preferred to the negligent entrustment claims. But the same type of background check (driving records, calling previous employers, etc) is all relevant. Negligent retention covers the same type of analysis, but generally looks at the driver’s conduct between the time of hiring and the date of the wreck that the lawsuit is about.

The last common claim is the negligent training claim. Again, if an employer knows that a training program for its drivers is necessary to protect others, but fails to exercise reasonable care in training its drivers, then the company is liable for the damage caused.

Now, I hear you asking, “If the company is already vicariously liable because the driver was driving in the course and scope of employment, why do the negligent hiring or negligent entrustment or negligent training claims matter?” Punitive damages.

The independent acts of negligence are important to give a jury more ways to award punitive damages. When the company has a driver that it knows drives drunk, for example, then a jury will not only award punitive damages against the driver, but the jury will also likely award punitive damages against the company.

But maybe more importantly is that these claims affect what evidence the jury hears. If you have a simple negligence claim where the employee driver caused the wreck and the injured person is only claiming that the employer is liable for the damages based on respondeat superior, then a lot of good evidence is probably not admissible. For example, if you know that the employee driver has a long history of accidents and tickets, those likely don’t get into evidence in the main part of the typical car wreck or truck accident trial because whether the driver had previous wrecks isn’t really relevant to whether the driver was negligent in this wreck. (Some defense lawyers may even try to stipulate to liability to try and keep this evidence out.)

But if you claim that the employer was negligent for not investigating the driver’s background and finding out about those tickets and accidents, then those becomes relevant and admissible and the jury gets to hear about them. And you can be sure that the jury hearing that type of information will make a big difference in the case. So these claims against an employer for its own negligence, with a claim for punitive damages, need to be pursued to help the case.

So that’s a general overview. There are other specific rules that I’m more than happy to answer if you leave a comment. There are also specific answers for trucking cases, but that might be another post.

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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