I was hit by a drunk driver. Does that affect the value of my case?

This is a question that I’ve received a few times.  And the answer is, “Being hit by a drunk driver should increase the value of your case, but it doesn’t always.”

What do I mean?  Obviously, if the jury knows that you were hit by a drunk driver, they would get mad at the drunk driver and likely award you more money.  The trick is whether the jury gets to hear you were hit by a drunk driver.  Defense lawyers will go to great lengths to ask the judge to hide from the jury the fact that the driver who hit you was drunk or under the influence of drugs because knowing that might be prejudicial to the driver.   There are tricks the defense lawyer will use to try and make this happen.

Fortunately, there are a number of tactics for our side to help us increase the likelihood that the jury gets to hear that the other driver was drunk.  Unfortunately, there are too many plaintiff’s lawyers who don’t know these tactics.

If you’re hurt by a drunk driver, you need to do your homework and make sure your lawyer knows these tactics.  Ask your lawyer what he or she might do to help increase the odds that the facts regarding the other driver’s drinking are admissible.  Ask your lawyer what trial lawyer organizations he or she belongs to help stay educated on the evolution of these tactics.  Make sure the lawyer you want to hire is qualified to maximize the value of your claim.

Posted on: July 25, 2014 |

I fell in a parking lot because of broken pavement/sidewalk. Can I sue?

This question was posed to me recently, and the short answer is “yes.”

This is called a premises liability case.  In Texas, a customer can prevail in a premises liability case against a business if the customer can prove several things: (1) that the condition (here the broken pavement or sidewalk) posed an unreasonable risk of harm; (2) the business owner knew or reasonably should have known of the danger; (3) the business failed to use reasonable care to make the condition safe; and (4) the business failed to use reasonable care to warn the customer about the condition.

While these questions may seem simple, there are a lot of difficult issues hidden inside of them.  For instance, almost all premises cases have disputes about whether the condition was unreasonably dangerous.  This often requires expert witnesses who can talk about building codes or other rules and regulations that might apply and why failing to comply with those regulations is dangerous.

Additionally, when proving whether the business owner knew or should have known of the danger, arguments arise over how long the condition had been present.  In this type of case, where broken pavement or sidewalk is likely to occur slowly over time, the issue might not be important.  But if you’re suing a business over a spilled drink on a floor or something similar, then you have to prove how long the drink had been on the floor.  As you might imagine, that can be difficult.

There are other similar difficult issues that make this a much more complicated question than it might normally seem.  That’s why it’s so important to have a competent lawyer on your side when you’re hurt in these situations.

 

 

Posted on: July 24, 2014 |

Is Your Insurance Company Paying Fairly?

Last week, local news station KXAN ran a great story on the problems that consumers encounter trying to get insurance companies to pay their claims.  Unfortunately, I see this on a daily basis.  When you’re hurt or injured, insurance companies seem to employ the old deny, defend and delay tactics to try and minimize what you’re paid.

The person in this story was lucky.  After a battle, he thinks he received a fair payout without having to hire an attorney.  But most people who try to handle their own claims aren’t that lucky.  As lawyers, we know the tactics the insurance companies are trying to use against you, and we know the ways you can mess up your claim.  That’s why it’s reported that even insurance companies studies prove that claimants who have lawyers who can help guide you through the process end up with much higher recoveries, on average.

I urge you to watch the story below:

 

Posted on: July 15, 2014 | Tagged

Amusement Park Safety

roller-coasterEarlier this week, several people were injured in a roller coaster accident at Six Flags in Valencia, California.  Apparently, a tree fell on the track, injuring two people and causing a number of others to be stranded for hours.

That’s tragic.  Amusement park injuries occur more than we think, and they are often severe.

But what caught my eye was the source of the story.  The story I saw was on Yahoo, but ran in the Christian Science Monitor.  Why did it catch my eye?

A lot of people have never heard of the Christian Science Monitor, but it’s an internationally respected newspaper that has won several Pulitzer Prizes and dozens of other awards for outstanding journalism.  When I was in back in high school participating in speech and debate, we used to read many of the articles, and most of the headlines, to prepare ourselves for our various competitions.

The Yahoo story stuck with me because I’ll always remember a competition in the small town of Hondo, Texas, where I quoted an article from the Christian Science Monitor in one of my speeches.  I didn’t do as well as I normally did or expected to do, and I couldn’t figure out why until we received the judges’ sheets after the contest.  And my judge railed on me for citing a right wing propaganda machine during my speech.

I didn’t correct my judge to let him know about his errors.  But I’ve always remembered that story because it’s an important to so many lessons for me.  I’m just sorry a roller coaster accident had to be the reminder.

 

 

Posted on: July 9, 2014 | Tagged

Get Ready To File Your Chrysler Ignition Switch Claims

As you probably know, Chrysler admitted earlier this year that just over 2.5 million of its vehicles had defective ignition switches.  The switches were faulted in at least 165 deaths and countless more serious injuries.

In an effort to control litigation costs, Chrysler has set up a claim process that will serve as an alternative to litigation.  If injured as a result of a faulty ignition switch, you may submit a claim, and it will be reviewed by attorney Kenneth Feinberg, who will make awards that Chrysler has agreed to pay.  The hope is that the process will be expedited and reduce costs.  Under the proposal, your claim must be made between August 1 and December 31 of this year, and Mr. Feinberg has a goal of resolving each claim within 90 to 180 days of filing.

From a claimant’s perspective, the biggest potential advantage appears to be the speed of the filing and resolution.  A typical products liability lawsuit would usually take much longer than the time hoped for in this process.  Additionally, Mr. Feinberg has publicly stated that he doesn’t want to litigate issues relating to whether the claimant’s conduct contributed to the wreck — for example, was the claimant drunk, speeding, etc.  Those types of issues would obviously be huge concerns in a trial.

On the downside, Mr. Feinberg has a lot of experience in evaluating claims and making awards in situations such as this (he handled the Sept. 11 Victim’s Compensation Fund and he’s currently doing similar work in the BP oil spill arena), and he has received a fair amount of criticism about his awards in the BP case.

If you don’t want to enter the process, then you can still file a lawsuit.  However, which path to take is a decision that must be made on a case-by-case basis.

If you or a loved one has been injured in a wreck caused by a faulty ignition switch, please call us and we’ll try to help you.

Posted on: July 1, 2014 | Tagged

Head Injuries: New Settlement In NFL Concussion Lawsuit

helmet smallYou may recall that the previous settlement agreement between the National Football League and a class of former players was scrapped by the judge, who was concerned that there wouldn’t be enough funds to fully compensate the injured players who sustained head injuries.

Yesterday, the parties entered into a new settlement agreement.  Unlike the last settlement, this settlement isn’t capped at any specific amount.  This ensures that any former player who develops a qualifying neurocognitive condition will be compensated for the injury.

This is an interesting way forward.  Obviously, we represent a number of clients who have sustained head injuries, so I know the ways that these types of injuries can affect someone.  But I’ve also done some work on class actions, and it’s highly unusual to craft a settlement that doesn’t have a cap on the damages.  It will be interesting to see how the case proceeds and whether the ultimate amount paid out will surpass the $765 million that was being set aside in the prior agreement.

Baseball, Hot Dogs and Injuries?

hotdogI love baseball, and I like hot dogs, and I was surprised to see them intersect in a personal injury case. But yesterday, I saw that they did.

Yesterday, the Missouri Supreme Court held that the “baseball rule”, which protects teams from being sued for fan injuries caused by events on the field, does not protect sports teams when their mascots cause injuries.

In this case, the Kansas City Royals mascot was throwing hot dogs into the stands.  One of the hot dogs hit John Coomer in the eye, resulting in him having two surgeries to repair his damaged eye.

Originally, the jury was instructed that being hit by the hot dog was an inherent risk of attending a sporting event.  But the Missouri Supreme Court noted that there is nothing inherent about wayward mascots at sporting events.  The Court noted that mascots aren’t a part of baseball; we’ve played baseball a long time without mascots throwing hot dogs, and we can continue baseball in the future without wayward hot dogs.

Legally, I have to think the court is correct.  Mascot shenanigans aren’t an inherent part of the game.  And while the hot dog incident almost prompts a chuckle, I’m sure no one would be laughing if a mascot did something more egregious, such as causing a golf cart to explode.  Those are not inherent risks of our national pastime, and mascots need to be careful, like everyone else at the game.

Sorry For The Lack Of Articles, But…..

EBCampershirtmockI had the pleasure of spending the last week at Camp Emerald Bay on Catalina Island with about 35 members of my son’s scout troop.  It has taken time away from the office and my family, and it’s certainly made things more hectic, but it was worth it.

Over the course of the week, our kids earned over 100 merit badges in activities ranging from oceanography, environmental sciences, and mammal studies, to more traditional badges, such as archery, lifesaving, and wilderness survival.

Our boys could earn these merit  badges here at home, but the long trip also offered our boys a more hands-on experience.  For example, most of the kids explored the marine life in the area through snorkeling or even scuba diving.  The boys also had the opportunity to go salt water fishing from a fishing boat, to watch sea lions frolic, and watch dolphins follow our ferry to and from the island.

The camp’s marine science center was also a top attraction.  There, our boys were able to touch and feed leopard sharks, horn sharks, bat rays and more.  And many of the boys were enamored with the mantis shrimp.  These shrimp can grow up to a foot in length, and they are often difficult to keep in aquariums because they are strong enough to break the glass.  Indeed, the boys were fascinated by the fact that if humans could accelerate their arms at one-tenth the speed at which a mantis shrimp attacks its prey, we’d be able to launch a baseball into orbit.

The Waterfront At Camp Emerald Bay

The Waterfront At Camp Emerald Bay

One of the favorite parts of the week was “war canoes”, where we made an hour-plus canoe trip to a secluded beach on the island.  Once there, the kids could go hiking, snorkeling or play on the beach.  The day was capped off with dutch oven dinners, and then we all spent the night on the beach.  Around 4:45 the next morning, we had our wake-up call, we loaded up, and we canoed back to the main camp.

Of course, no boy scout camp would be complete without the opportunity to serve others, and one of our opportunities was a bit unexpected.  As we returned to camp with our fishing charter, we encountered a small boat with three passengers waving feverishly.  As our captain approached the boat, the boaters let us know that they had run out of gas and were stranded.  We radioed to Harbor Patrol, and soon our stranded friends were being towed back in to safety.  The lesson was not lost on our boys as one unnamed scout (okay, it was my son), took the opportunity to suggest to the boaters that they should “Be Prepared” for those types of situations.

The Stranded Boaters Awaiting Help

The Stranded Boaters Awaiting Help

Needless to say, we were are all tired, but it was a great experience for all of the kids.

Posted on: June 23, 2014 | Tagged

Auto Insurance Isn’t All The Same

There’s an insurance company currently running television ads here in Austin (and I assume elsewhere) encouraging you to use them because “all insurance is the same” so use them and avoid the middle man.

That’s basically fraud.  All auto insurance isn’t the same.  There are different coverages to buy, different deductibles to consider, and a whole host of other traps that a consumer probably doesn’t even know exist.  And without an agent to help consumers navigate these issues, too many consumers unwittingly end up with low-coverage insurance that comes back to bite them.  That’s a problem.

To help address the problem, I’ve written a new booklet, Understanding Texas Auto Insurance: Top 9 Mistakes When Buying Your Auto Insurance.  You can order a free, hard copy by requesting a book through the “Speak to an Attorney” box.  Alternatively, you can download an electronic version starting on this page.

But please take advantage of this opportunity for free information to help protect you.

The Vulnerably Housed and Homeless Suffer Increased Risk of TBI

Typically, traumatic brain injury (TBI) coverage focuses on those involved in contact sports and on military veterans. However, TBI also seriously affects vulnerably housed individuals and the homeless.

The Journal of Head Trauma Rehabilitation recently featured a study arguing that the homeless who suffer TBI have a strong, negative impact on public expenses. Homeless and unsafely housed individuals who have suffered damaging blows to the head are more likely to frequent ER departments for health care, to fall victim to assaults, to have done jail time and to have been arrested.

The Canadian article argued that traumatic brain injuries, such as concussions, are approximately seven times more common among the homeless. TBIs may manifest themselves in mental health issues, in alcohol or drug abuse and in physical symptoms, including seizures.

The study stretched over four years, and 61 percent of its participants reported having sustained a TBI in survey. The figures were roughly consistent across Canada. Homeless individuals with a history of TBI were 1.5 times more likely to attend an ER due to the long-term side effects of their brain injury.

These individuals were also almost twice as likely to have spent time in jail or to have been arrested by police within the previous year — usually as a result of personality disturbances or impaired mental abilities as a result of a TBI. The homeless with brain injuries were almost three times more likely to be assaulted than other, similarly situated individuals.

Increased screening and condition-management assistance could help control the higher level of health care required for homeless TBI victims. Unfortunately, prospects for this kind of action remain weak in the face of more dominant health care priorities.

Posted on: May 30, 2014 | Tagged

Perlmutter & Schuelke, LLP 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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