Do Politicians Even Understand What The Judiciary Does?

“Court of appeals is where policy is made.”

Judge Sonia Sotomayor

“Better to remain silent and thought a fool than to speak out and remove all doubt.”

Abraham Lincoln

After hearing all of the complaints over the last few days over Judge Sotomayor’s comment, I can only conclude that our politicians have no idea what the judiciary actually does.

Judge Sotomayor is correct. Whether on the state or federal level, the vast majority of the opinions from appellate courts can be interpreted as making policy. That’s neither a good thing or a bad thing; it’s just a fact. And it’s no surprise to anyone who actually knows what the heck he or she is talking about.

There are essentially two types of laws being addressed by the courts: common law and statutory law. Common law is entirely court made law; it is policy that is developed through series of court decisions rather than through some type of statute. And these aren’t laws out of left field, but laws that govern the every day happenings in this country. Hit by another driver and need to make a claim for damage to your car or injuries you sustained? That’s a tort claim, and in almost every jurisdiction in the country, that tort claim was created through common law. Involved in a business dispute where a business breaches a contract? In most jurisdictions those breach of contract claims are based on the common law and not some type of statute.

When making decisions about common law claims, all courts do is make policy. Causes of action originated from the court decisions, and courts follow the precedent of prior decisions. But if the court is faced with a new problem or issue (a case of first impression), the courts have to make policy judgments on how the claim should be decided.

But courts are also required to make policy decisions when interpreting statutes. When Congress or state legislatures draft statutes they often write statutes that are ambiguous or that don’t cover every situation (or are often unwilling to make the hard decisions) and all of those issues are left to the courts. When those issues are decided, courts often look to the policy implications of their decisions. And everyone expects it. Every day thousands of lawyers across the country — from big firm to small; from lawyers for big corporations to lawyers representing individuals — submit briefs that talk about the policy implications of various decisions.

Not only is consideration of policy concerns in interpreting statutes expected; in many cases it’s required by statute. For example, in Texas, our legislature has created the Code Construction Act (Texas Government Code § 311.001 et seq), which sets out the rules that courts are to use when interpreting statutes. The Act has rules that you might suspect, like words in statutes should be interpreted according to their common meaning. But the statute also recognizes that even if words aren’t ambiguous, Texas courts may also consider policy implications of their decisions. Section 311.023 reads:

STATUTE CONSTRUCTION AIDS.A In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1)AAobject sought to be attained;

(2)AAcircumstances under which the statute was enacted;

(3)AAlegislative history;

(4)AAcommon law or former statutory provisions, including laws on the same or similar subjects;

(5)AAconsequences of a particular construction;

(6)AAadministrative construction of the statute; and

(7)AAtitle (caption), preamble, and emergency provision.

Moreover, Texas also has Chapter 312 of the Government Code, which sets out rules for construing statutes governing civil causes of action. Section 312.005 states, “In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.” And 312.006 requires, “The Revised Statutes are the law of this state and shall be liberally construed to achieve their purpose and to promote justice.”

When you’re talking about looking at consequences of a particular construction or trying to promote justice, that requires a judge to make a decision about what policy is right and what policy is wrong. Not only are courts of appeals expected to make policy decisions in construing statutes, the courts are required by statute to consider what the policy ramifications of their decisions.

So the next time you hear Senator Hatch or some other politician gripe about Judge Sotomayor contending that appellate judges make policy, ask yourself who is really the fool.

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How To Ruin A Good Personal Injury Claim

Sign documents and answer questions you don’t understand. That’s one of the best ways to ruin a good personal injury claim.

There have been a handful of times in the last month when I’ve been going through the file of an existing or potential client, and they have had some interaction with the insurance company before coming to me that has hurt their claim. The most insidious form of this is the “swoop and settle” tactic of insurance companies jumping in right after a wreck and paying a small sum in exchange for a release. While there might be some way in some cases to void the releases, signing such a release can often eliminate a claim.

The more subtle problem is to give the insurance company an authorization to get medical records or to give the insurance a recorded statement. Insurance companies can use both of these to hunt around for information that they’re not entitled to — information that can often be used to harm your case.

I am the first one to tell clients that they don’t need an attorney after every accident. In many cases, the injured party might be able to do better by resolving a claim without a lawyer. But certainly, an injured person ought to consult a lawyer before signing anything for the insurance company or giving an adjuster carte blanche access to a recorded statement. Make sure you’re not the one that gets taken advantage of.

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Might The Days Of Mandatory Arbitration Be Done?

It’s no secret that I’m not a fan of mandatory, pre-dispute arbitration. In fact, I’ve probably written on it more than anything else. Now, maybe the griping from me and others has done some good.

A Los Angeles Times story was out earlier in the week detailing the problems with pre-dispute arbitration and noting that there is finally a chance that something may be done to help consumer. The column noted:

Consumer advocates, sensing a shift in the political winds under President Obama, believe the time is right to challenge mandatory arbitration and have banded together to support legislation ending the practice.

We have no problem with arbitration,” said David Arkush of the watchdog group Public Citizen. “We just want people to be able to choose it if they want it, rather than having it be required.”

The article also noted that the public’s acceptance of arbitration might be changing. It noted that when the details of mandatory, pre-dispute arbitration are explained to people, 59% of Americans say they oppose it.

I’m glad to finally see the issue discussed in the popular press and to see that the tide may be turning. While I think there are many cases where arbitration is appropriate, I think consumers deserve the right to fully understand the agreement before signing it; they deserve to know the costs of arbitration, that they may be giving up their rights to conduct discovery, and the pros and cons of arbitration before they’re forced to agree to it. In today’s setting, consumers don’t get that. Businesses get pre-transaction lawyers to explain the arbitration agreements and to draft the agreements for the businesses. But there isn’t any protection or explanation for the consumer.

I think the author summed up my concerns nicely:

Seems to me that if arbitration is indeed fair to everyone, it shouldn’t have to be crammed down consumers’ throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.

By the same token, no company should be permitted to deny customers their right to a jury trial or to participate in class-action lawsuits.

In a perfect world, such things wouldn’t be necessary.

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San Antonio Jury Hits Akin Gump With $72.6 Million Verdict

Last Thursday, a San Antonio jury returned a $72.6 million dollar verdict against Akin, Gump in a case where the plaintiff alleged that the patent lawyers failed to properly obtain patents on a device that the plaintiff invented.

The verdict is another in the trend of larger verdicts against large law firms.  The American Bar Association publishes a semi-regular survey of legal malpractice claims as reported by legal malpractice insurers.  In September 2008, the ABA’s latest version came out, covering claims from 2004-2007.   The previous study looked at claims from 2000-2003.  One of the more stunning statistics in the study is that claims that were in excess of $1 million doubled from the 2003 survey to the 2007 survey.  It’s my hypothesis, not mentioned or addressed in the study, is that one of the reasons is more successful claims against mega-firms.

Interestingly, Akin, Gump is also a party to a legal malpractice case (Akin, Gump v. Nat’l Development and Research Corporation) currently before the Texas Supreme Court, and the ultimate decision promises to be critical to the legal malpractice jurisprudence of our state.

Barratry, Solicitation and More: The Harassment of Accident Victims

ambulanceThe image that 90% of the population has of those of us that are personal injury lawyers is of some greedy jerk using deception or illegal tactics to pursue claims. For most of my brethren, that caricature couldn’t be further from the truth. But for some attorneys, it’s accurate, and it couldn’t be more disgusting.

Earlier this week, the San Antonio Express News ran an article detailing the problem of barratry or case solicitation. As it stands, barratry is illegal. Texas attorneys are not allowed to solicit clients in person or by phone, and an attorney can’t solicit by mail until thirty-one days after the date of the accident or wreck. Tex. Penal Code § 38.12. But it happens over and over, and we need to do what we can to stop it.

But the harassment of victims doesn’t stop at lawyers. Another problem is chiropractors soliciting car wreck victims and then referring the victims to their selected attorneys. We’ve previously written on a WOAI undercover operation to bust attorneys trying this stunt. That scheme is also illegal, but it too continues.

It’s about time that we did something about it. Lawmakers need to step in, attorneys need to step in by reporting suspected cases of barratry, and injured persons that are solicited need to report their own experiences. Maybe then, we can do something about this horrible practice. (Let me add that the article hints that the Texas Trial Lawyers Association may be against the bill. I’m proud to be an active member of TTLA — one of the only organizations over at the capital trying to protect individuals’ rights. And I’ve spent time over at the capital this session on behalf of TTLA. I would be shocked if TTLA opposed this bill. In fact, the article even notes that TTLA is supporting a bill that would increase the penalties assessed against an attorney for not reporting barratry. It makes no sense to support one and not the other.)

But the harassment comes from the other side as well. A recurring problem in some litigation is a “swoop and settle” tactic employed by insurance companies who come in and settle claims early before the injured persons know the true extent of their injuries and the nature of their rights. And in many cases, the insurance company officials not only don’t explain the nature of the settlements, but they make out-right misrepresentations about the injured person’s ability to bring future claims. These problems are equally as bad as attorney solicitation. Unfortunately, there doesn’t seem to be any movement at all to try and remedy those problems. My only advice is to make sure you know your rights before you settle. While some settlement agreements may be set aside for fraud or other claims, pursuing the suit and the claim becomes much more difficult all the way around once the client signs an early settlement “agreement.”

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Corporate Lawyers – Advise The Officers And Employees Who You Represent

It’s not an uncommon fact pattern.  A corporate officer or employee will be testifying at a deposition or in a courtroom with the corporation’s lawyer present.  The officer/employee says something bad that subjects themeselves to liability.  And when things go south, the officer/employee ends up suing the corporation’s attorney for not protecting the officer/employee.

In such a situation, the fight is almost always whether an attorney client relationship existed between the officer/employee and the attorney.  In Texas, the relationship can be created where (1) the attorney told the officer/employee he was being represented, or (2) it was reasonable for the officer/employee to make the assumption the officer/employee was being represented and the attorney did nothing to dispel that understanding. (The two leading cases on this, Parker v. Carnahan, 772 S.W.2d 151 (Tex. Civ. App. – Texarkana 1989, writ denied) and Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex. App. – Corpus 1991, writ denied), just happen to be sitting on my desk for a brief.)

A high profile version of that fact pattern is playing itself out now.  You may have seen that Laura Pendergest-Holt, the former Chief Investment Officer of Stanford Financial Group, is currently facing criminal prosecution.  But she’s not being prosecuted for stealing money; she’s being prosecuted for lying to Securities and Exchange Comm’n investigators.   You see, at the suggestion of a company lawyer, Ms. Pendergest-Holt sat down with the SEC for an interview.  The company attorney was then there at the interview.

During the interview, the attorney repeatedly told SEC investigators that he was there on behalf of the company and not as Ms. Pendergest-Holt’s personal attorney, but did he really explain to her what that means?  I’m not sure.  I just know it’s a strange situation.  The lawyer withdrew from representation of the company just a few days after the interview, and then he wrote the SEC disavowing everything he had told them about the client.  I don’t know how this is going to turn out, and if it wasn’t so hard to bring a legal malpractice case against criminal lawyers in Texas, I might think a legal malpractice case was a certainty.  You can read more details on this mess in a recent article.

This fact pattern should be a “teaching moment” for all attorneys that represent entities.  In my speeches on how to avoid legal malpractice claims, one emphasis is always to clarify who you represent, and maybe more importantly, who you DON’T represent, with a warning that the unrepresented should get their own counsel.

Hat tip to Texas appellate lawyer Don Cruse for the link to the story.

Text Messaging (And Twittering) While Driving

text messaging while drivingRegular readers of our blog probably know that some of our most popular posts on the site are posts about text messaging while driving.  As a result, early last year, I put together a resource page that gathered several article and studies on texting while driving.  Since that time, there have been numerous developments in the texting while driving saga, including several states passing legislation to ban the practice and the new phenomenon of twittering while driving.

This week’s release of a vidoe showing a San Antonio bus driver slamming into parked cars because he was texting while driving seems to be a good nudge to provide an update to the resource page.  As a result, I’m posting several new stories below, led, of course, by the video of the San Antonio driver.  In the next few weeks, I’m going to try and have a page with states that have passed legislation on texting while driving so I’ll save those stories for that later post.

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  • RAC FOUNDATION STUDY — Texting While Driving Is Worse Than Drunk Driving — A Study Based On Automobile Simulators


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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