I’m sorry for the lack of posts. The entire month has been nuts. Just this week, I have had to file two summary judgment responses, and I’m spending today finalizing some discovery.

If you’re a regular reader of the blog, you know that we have somehow become a resource for information on texting while driving. Earlier this week, the Today Show had a great feature on the dangers of texting while driving. If you care about the dangers or if you have teenagers, you need to watch the video and make them watch the video.

Related links from our site:

• Text messaging (and twittering) while driving
• Text messaging while driving? Maybe not in Austin
• Car Wrecks - Text Messaging While Driving
• Text Messaging: New Car Wreck Danger

What technology giveth (in terms of ease), technology taketh away.

Technology was supposed to make trials and presentations easier.  And in many ways, it does.  But it also has this nasty habit of causing problems.  Big problems.  Attorneys have already adjusted to MySpace and Facebook and the like.  We not only use them to investigate defendants, but we have to make sure that our clients are diligent about not posting things that will hurt their cases.  And I've previously posted about the problems that are occurring with jurors using Twitter or the internet to research or communicate about cases.

But this morning I read something that I had not yet considered.  A Miami judge declared a mistrial after a witness was receiving text messages while on the witness stand.  Not just any text messages --- text messages clarifying what the witness's testimony needed to be.  While all of the attorneys were at the bench for a conference, the plaintiff's COO took the opportunity to text the witness with suggested amendments to the witness's testimony.

After someone in the courtroom passed a note to the defense lawyer, the deed was discovered.  Needless to say, the judge was not happy. 

Before that, Silverman had engaged in a heated exchange with Toledano.

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

I suppose the lesson for all of us is to be constantly mindful of the way technology can affect our jurors and our clients and to include instructions for those things that seem even basic.

This morning, the U.S. Supreme Court released Caperton v. A.T. Massey Coal Company.  The case involves facts that are almost too extreme to believe.  Massey was appealing a multi-million judgment and decided to help its chances at the West Virginia Supreme Court by spending approximately $3 million to help elect a new supreme court justice.  After the court, with the new supreme court justice, threw out the award, the plaintiff appealed, arguing that it was deprived of its right to trial. 

In the ruling, the Supreme Court agreed with the plaintiff and held that courts shouldn't rule on cases involving large donors.  Unfortunately, the opinion doesn't provide much more guidance than that.  So what does that mean for Texas?  Texas has judicial elections, and most campaign contributions come from those with cases before the Court.  A Texans for Public Justice study concluded that in the last Supreme Court election, the candidates received more than 65% of their contributions from those with business before the Court.  And it wasn't just a Republican or a Democratic issue, both sides were equally guilty.

So where do we go?  Do we see a lot more motions to recuse or will the decision provide the impetus needed to those that support abolishing judicial elections. 

It's hard to know until the dust settles.  Once the decision and its lower cases interpreting it are fleshed out, there might not be any change at all.  On the other hand, it might make all the difference in the world. It will at least be interesting to watch as it plays out.

Last week, noted blogger, Doctor Rich had a post examining the American College of Surgeons’ advice regarding medical tourism, where a patient travels outside the United States to obtain medical care. No shocker, but American surgeons aren’t fans of the practice, and they did their best to give reasons why patients should be careful with medical tourism.

For those of us that are plaintiffs’ lawyers, the biggest shocker had to be the physicians’ sudden concern that patients traveling out of the country might have difficulties bringing medical malpractice suits. Dr. Rich writes:

Second, and most astoundingly, Dr. Rich notes - not so much with interest, but more with awe - that the surgeons are beseeching their patients to consider just how difficult it might be to launch a malpractice suit against foreign doctors. (Dr. Rich himself does not know how difficult this would be. Given that we are being so strongly urged these days to merge the American legal system with international law, it might not be much of a problem for long.) Indeed, the potential difficulty in suing foreign doctors appears to be the chief differentiator, and the primary argument in favor of good-old-American-surgery. The surgeons, in essence, are saying, "Let us do your surgery, because we’re easier to sue if we screw up."

This, from the very body of American physicians who are most at risk for malpractice suits, and who traditionally have been most vociferous in favor of malpractice reform.

This isn’t the first time I’ve heard this argument; in fact, I have a previous post on the subject (A Doctor Touting The Benefits of Texas’s Medical Malpractice System?). And I said it then, and I’ll say it again: I find this appalling. In 2003, when the medical and insurance lobbies simply obliterated the Texas medical malpractice system, the doctors were all over themselves to do anything they could to take away patients’ rights to sue. In 2003, and even earlier, the Texas Trial Lawyers’ Association tried to sit down with the medical associations to work out mutually beneficial legislation that might help meet the needs of the medical lobby while also protecting Texas consumers, and the medical lobby wanted none of it. They simply wanted to take away as many rights as possible. To sit there now and tout the medical malpractice system as a reason to avoid medical tourism is hypocrisy at its best.

I don’t know what the future holds for medical tourism, but I’ll continue to watch and see if the medical lobby continues this disingenuous concern for patients.

"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.

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. 

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  (see my prior posts here, here, here, here, here, here, and here).  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.

Popular blogger/truck driver Truckie-D started posting on the Injuryboard website yesterday. His first post was on "The Effect of Attorneys On Highway Safety."  Surprisingly, at least to me, was that as a truck driver, he concludes that attorneys and trucking litigation are both important for highway safety. He writes:

There are a lot of people who love to rant about the deleterious effects that lawyers have on our (litigious) society in general. Whether those rants are true or not, lawsuits over crashes have had a profoundly positive effect on truck safety in general, and regulatory compliance in particular. (Please note that I do not refer to these things as "accidents". There’s really no such thing. They may not be intentional, but they’re generally the result of choices that somebody made.)

Every large damage award (and lots of small ones too) are carefully looked at by trucking companies and their insurance carriers. The end result of this is a great deal of attention being paid to the letter of the law, and much more scrutiny and training of drivers. Gone are the days where almost any non-fatal collision was treated more or less casually by trucking companies.

He followed up yesterday’s post with "Investigating Truck Crashes," providing a good overview of the investigation process.

I’m looking forward to his series of posts. If you want to follow, you can watch his "recent activity" box at his profile here.

The 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."

Regular 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.

TEXTING WHILE DRIVING ARTICLES

• UK - Text Message Death Leads To Prison Term
• Father Still Hopeful For Florida Law Banning Texting While Driving
• Eden Woman Killed In Crash Was Texting While Driving
• Texting While Driving Becoming Bigger Problem With Teenagers
• Teens Learn Lesson on Texting and Driving
• Cell Phone Misuse May Have Killed Boston Physician
• Cell Phone Users: The New Drunk Drivers
• Text Messaging and Driving Is Considered A Deadly Mix
• Driver Admits Texting Before Crashing Into A Police Car
• Woman Jailed For Texting and Driving
• Teach Teens the Dangers of Texting While Driving
• Driving While Texting --- Do You Know The Cost?  (CNN)
• As Text Messages Fly, Dangers Lurk (NY Times)
• Text-Messaging Behind the Wheel (Time)
• Man Accused of Texting While Driving Faces Manslaughter Charge
• Handheld Cellular Usage While Driving  (not really noteworthy other than it's from the Cayman Islands, a place I love and the location of my wedding almost 15 years ago)

NEW STUDIES ON TEXTING WHILE DRIVING

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

TWITTERING WHILE DRIVING ARTICLES

• More Drivers Using Twitter While Driving
• Twitters Tweet From The Driver's Seat
• In-Car Twittering On The Rise
• Twittering - The New Driving Menace