Lawyers, Need Ethics CLE? Catch My Webinar

On March 31, National Business Institutes is replaying a CLE seminar entitled Legal Ethics 101: Malpractice Prevention and Conflicts of Interest.   The speakers are Judge-elect Amy Clark Meachum and me.  If you need a couple of ethics hour before the end of the month, listen in.

Posted on: March 22, 2010 |

On-The-Job Injury? Don’t Sign A Release Without Advice From A Lawyer

I’ve heard from two attorneys the last few days that were trying to avoid a difficult situation involving on-the-job injuries.

For background, Texas is a worker’s comp state.  If your employer has worker’s comp then you are, for the most part, barred from suing your employer if you’re injured on the job.  On the other hand, if your employer does not carry worker’s comp  (we call these employers “non-subscribers”) then you can sue your employer for an on-the-job injury.  

Some non-subscribers have “fake” worker’s comp policies.  Typically, these are plans that will pay injured people a portion of their lost wages and their medical bills, but the plans won’t pay for pain and suffering, impairment, mental anguish, etc (these are called “non-economic damages”).  Under the law, injured workers are often entitled to seek benefits under the plan while still suing their employer for the damages that the plans don’t cover.

The problem?  Many industrial employers are now requiring their employees to sign a release before allowing the employees to seek benefits under the plan.  Thus, the injured are giving up their rights to seek a recovery for non-economic damages in exchange for accepting a partial recovery.  The potential recoveries that these employees are giving up may be substatial. 

Now, in some situations, that may be in the employee’s best interest.  But in many situations, it isn’t.  And injured employees who don’t know their rights can’t make informed decisions until they talk to an attorney and understand the options they have and the consequences of their decisions. 

So, if you’re injured on the job, I encourage you to talk to an attorney before signing any agreement that may give up your rights.

I-37 Bus Wreck Kills Two and Injures Many More; What Can Be Done About Bus Safety?

Yesterday, an Americanos USA bus overturned on I-37 near San Antonio, killing 62 year old Christina Lozano Campos and 27 year old Efrain Dominguez-Valenzuela and injuring 40 more.   Authorities now suspect that a broken drive shaft may be to blame for the wreck.  

The wreck is reminiscent of the horrific 2008 bus crash in Sherman that killed fifteen passengers, most from a Houston-area church.  And earlier this month, a bus crash near Phoenix killed six passengers. 

There should be a lot of discussion about bus safety in the wake of these wrecks.  One thing that I think should be considered is the mandatory use of seat belts on commercial buses.   The Texas legislature passed a law requiring that all school buses purchased after September 1, 2010 and all charter buses used to transport Texas schoolchildren must be equipped with safety belts by Sept. 1, 2011.  But the use of seat belts still lags behind in typical charter buses. In 2007, Texas Senator Kay Bailey Hutchison and others introduced the Motorcoach Enhanced Safety Act that is designed to increase safety for bus riders. 

The bill didn’t get very far, but  in 2009, Hutchison and others introduced the Motorcoach Enhanced Safety Act of 2009, which would not only require seat belts in buses, but also require stronger roof design and glazed windows to minimize the risk of passenger ejection  (which almost guarantees death in any rollover case).  In late December, the bill was approved in its Senate committee and proceeds to the floor of the senate. 

If there is ay good that is going to come from these tragedies, it is increased safety for future motorists.  If you’d like to encourage your legislators to act on the currently pending bill, the MotorCoachSafetyNow website has a number of tips.  Hopefully, the industry will adopt these safety measures and Ms. Campos and Ms. Dominguez-Valenzuela will not have died in vain.

Let’s Hope “Spring Break” Doesn’t Refer To The New Capital Metro MetroRail

There will be few stories bigger in the next couple of week’s than Capital Metro’s MetroRail finally opening on March 22.  The addition of a rail line brings the promise of changing the face of Austin transportation forever.

But it also brings risks.  Historically, additional of rail to roadways brings an increase in car wrecks.  This is particularly true in the first few months following the opening of the rail as commuters get used to stopping at the train tracks for the trains.  But those risks will continue.  Yesterday’s   Houston collision between a Houston Metro bus and one of Houston’s light rail trains is a sobering reminder of just how tragic these collisions may be. 

So as you’re driving the streets the next few weeks, be mindful of the new rail system.  You might consider these tips (from Capital Metro and sent home to AISD students):

  • Remember that the trains are traveling as fast as a car and are quiet.
  • NEVER stop a car on the train tracks.
  • Stay alert and pay attention around train tracks; any time is train time.
  • Trains can’t swerve; they have to stay on the tracks so keep your cars off the tracks.
  • It can take up to 600 feet (two football fields) to stop a commuter train like MetroRail.
  • Never walk on tracks.
  • Always expect a train at any time, in either direction, on any track, and always watch for a second train.

The Austin news stations have been doing a good job of following the start of the rail and the new dangers we might face.  A couple of my favorite stories are  below:





Another Story On The Dangers Of Texting And Driving

If you’ve read our website, you know we’ve written extensively on the dangers of texting and driving.  You can read some of our posts on the dangers of text messaging while driving, including viewing our resources pages by looking at our auto accidents and text messaging page. 

Recently, Bryan/College Station television station KBTX had a good story on these dangers.  You can watch the story below:

Thom Singer on “How To Hire The Right Lawyer”

question-mark3aThom Singer, a local author and motivational speaker, recently hosted a podcast on “How To Hire The Right Lawyer For Your Venture.”   Thom’s thoughts are interesting since he has a background working for two of the largest law firms in the country.  Thom’s podcast is an interview with a corporate lawyer and focuses on how to hire a lawyer for a new venture, but there are several points in the interview that would be helpful to those seeking to hire a personal injury attorney or litigator. 

 1.  View your lawyer as more than just providing legal advice.  For a start-up, a lawyer’s contacts in the community can be critical in helping obtain funding for the venture or other important assistance. 

While a personal injury victim doesn’t care about funding, the lawyer’s contacts and experience in the community are important.  Why?  Choice of doctors is one.  An experienced personal injury lawyer will have worked with a number of the doctors and medical providers in the community.  While we don’t like to recommend which doctors you see, we are more than happy to help you decide which doctors, hospitals, or other medical providers you should avoid.  Avoiding problem doctors can help with the care you receive and with he resolution of your case.

A good personal injury lawyer will also have good relationships with investigators, court reporters,videographers and others that can help in the pursuit of your claim.

2.  Remember that your lawyer is part of your team.  Picking an attorney is like picking your husband or wife.  You need to know that you can work together even in bad times.

This advice speaks for itself.  We always advise clients that a critical factor in their choice of attorneys is how well they get along with the lawyer.  Each case is different, but if we’re going to take your case to trial, we’re going to be spending a lot of time together.  If we can’t work together, then we’ll have a hard time being an effective team.

3.  The biggest mistake people make is waiting too long to visit an attorney.  Seeking an attorney after a problem arises makes resolution much more difficult and costly.

This advice is equally true in the personal injury context.  In smaller cases, we routinely have clients approach us after they have tried to resolve the issue themselves.  By that point,they have usually made several mistakes that compromise the value of their claim, making it harder on us to help them obtain a fair result. 

This is not limited to clients.  We are also routinely approached by other lawyers who tried to handle a personal injury claim and realized that they needed help.  Again, we may spend a lot of time and effort trying to fix problems that could have been easily avoided with proper advice up front.

Aditionally, on larger cases, much of the investigation work is done on the front end.  A case involving a wrongful death or other catastrophic injury may require a quick visit to the scene, testing or measurements of  the vehicles or products involved, etc.  Once the car has been repaired, the defective product has been destroyed, or the scene has been substantially modified, it is much more difficult to work up a case.   Understandably, personal injury victims aren’t thinking about these things.  They just want to get better.  But I guarantee you that in any significant trucking accident, the trucking company will have lawyers and experts on the scene within hours.

4.  The second biggest mistake is thinking that “my brother-in-law graduated from law school so he can set up my company.”

The day and age of a lawyer being a jack of all trades is over.  Even the most basic car wreck case has a number of difficult issues that attorneys that do not routinely practice personal injury law will not know.  For example, the concepts of “paid v. incurred,” 18.001 affidavits, and  subrogation, among others, are probably foreign to most lawyers, but are routine issues in personal injury claims that are evolving on a monthly basis.  A lawyer that doesn’t regularly practice personal injury litigation doesn’t have any chance of staying on top of these changing areas of law.

5.  It is difficult for a non-lawyerto know whether their lawyer is good or not.  How can you tell if you have a good lawyer or bad lawyer? First, try and get a referral from someone you respect.  Second,  check other sources to understand your lawyer — look at their websites, Google them, etc.  Finally, don’t be afraid to interview two or three lawyers.  Once you’ve done all that, then you have to rely on your gut.

 Again, that advice is also applicabl to personal injury litigation.  The one thing I would add is that this is an important decision.  Think of your job  — whether plumber, teacher, doctor, etc — whatever your profession, you know that there are members of your profession that do good work and members that do bad work.  There is the same spectrum of skills in the legal community. 

I’m a firm believer that I’m not competing with the other good personal injury lawyers in Austin.  There are enough people injured to keep all of us busy.  What I am concerned about is the lawyers that don’t routinely handle personal injury cases or the lawyers that do handle the cases, but who don’t put their clients’ interests first.  If you’re looking for a personal injury lawyer, I hope you do your due diligence to avoid these lawyers.

On a related note, let me also add that I did a blog series earlier taking snippets from Stephen Comiskey’s book, A Good Lawyer.  If you’re looking for a lawyer of any type, these snippets are useful.  You can read my posts here:  Chapter 1Chapter 2, Chapter 3, Chapter 4,  and Chapter 5.   I also encourage you to read these posts if you’re a lawyer.  The book is tiny, but it is a gem, and it’s a good reminder of what we do.  Unfortunately, it appears to be out of print, though Chapters 1, 2, and 5 are reprinted in full in various issues of the Texas Bar Journal (with links to those articles in my respective posts on the chapters).

These are only some of the highlights of the podcast, and I encourage you to listen to the entire interview.  And if you’re looking for a professional public speaker, consider Thom.

Posted on: March 11, 2010 |

Should Texas Be The Model For Medical Malpractice Reform?

In the last few months, opponents of health care reform have insisted that one key to lowering health care costs is the adoption of “tort reform” by capping the damages that can be recovered in medical malpractice cases.

For some time now, I’ve been urging people to look at the Texas medical malpractice  “experiment”  to see if those claims were right. In 2003, the Texas legislature re-wrote Texas medical malpractice laws and put in place some of the most restrictive caps in the country. And where has it gotten us?

I’ve argued in the past that the Texas experiment proves that damage caps don’t help people. For instance, since the caps were put in place, the cost of health care has increased for Texas consumers. Similarly, Texans were promised that tort reform would significantly increase the number of doctors in areas of the state that traditionally have trouble finding medical care. By and large, that hasn’t occurred.

Now, a new study by Public Citizen not only helps prove my arguments, but shows that the results are even worse than I imagined. Have health care costs gone down since the adoption of Texas’s tort reform laws? No. In fact, the contrary has occurred. Since 2004, per patient Medicare spending (one of the best indicators of health care costs) has risen in Texas at nearly twice the national average. Similarly, tort reform supporters argue that doctors continually run unnecessary tests because they are scared of being sued. But the data shows that the increase in testing expenses in Texas has grown at a much higher rate than the national average.

Surely health insurance premiums for Texas consumers have been getting better since “tort reform”? Wrong again. Texas premiums have increased 144 percent for families since the adoption of tort reform. And that increase is just about at the national average.

Maybe medical malpractice caps haven’t decreased costs, but the reforms must be allowing new doctors to come to Texas, right? Yes and no. The number of doctors has increased since 2003. But that’s misleading. The growth in number of physicians per capita has increased at a much lower rate than we were growing prior to “tort reform.” Similarly, there is little, if any, difference in the number of doctors in the rural parts of area — the areas that really need doctors. In rural areas, the number of direct care physicians per capita is almost identical to what it was in 2003. And by and large, areas that were without various specialists are still without those specialists.

So what are we getting for “tort reform”? As a Dallas news-reporter noted:

So did Texans benefit from “tort reform”?

Doctors, some.

Insurance companies? A lot.

Most Texans probably couldn’t say.

But if you lost your baby after a difficult delivery, tort reform may have taken away your ability to find answers.

 We now have over five years of data showing that medical malpractice caps don’t produce the promised benefits.  The government shouldn’t take the mistakes that we’ve made in Texas and implement them all over the country.

Does Austin Have A Street Racing Problem?

This weekend, one family (including three young kids) lost their mother and another family lost their mother/grandmother because of  illegal street racing.   Fifty-three year old Maria Gaona De Corona and twenty-eight year old Adriana orales-Catalan were innocently sitting at a bus stop when nineteen year old Erick Armando Nuncio-Moreno blasted towards them, possibly at speeds up to 90 miles per hour, and slammed into them and their stop.  Witnesses have reported that Nuncio-Moreno was engaging in street racing at the time.

This is not the first time innocent Austinites have been victim of this careless conduct.  Almost two years ago to the day, I wrote another blog post about the increasing number of car wrecks Austin was experiencing due to street racing.  Later that year, the Austin Police Department announced that they were going to enforce a crack-down on street racing. 

And two years before that,  another 19 year old was among two people arrested when their street racing resulted in two deaths. 

Are these incidents isolated, or is there a real problem?  I’d like to stick my head in the sand and say it’s not a real issue, but in stumbling across an Austin street racing video, I think the problem is larger than many of us would like to admit.  Even more troubling to me, reading the comments to the video, the readers are posting popular locations for street racing even as late as late 2009, and many of those locations are the same places identified by police back in 2006 as most popular street racing sites

I just hope that the APD can get a handle on this problem and put a stop to these needless deaths and injuries.

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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