A Lesson In Arbitration From A Weird College Basketball Story

basketballCollege basketball coach Billy Gillispie is no stranger to the news.  He’s been the coach at Texas A&M, Kentucky, and Texas Tech, among others.  But this story is a little odd.

Having been fired from his last two jobs, Gillispie finds himself the coach of Ranger College, a Texas junior college.  In his first year, Gillispie created quite the turn-around, taking the program from a 2-23 record to a 31-7 record in his first year.

Or so he thought.

The National Junior College Athletic Association had different ideas.

Joshua Simmons was one of the players on Gillispie’s team.  Prior to joining Ranger College, Simmons played (very sparingly) for Spartansburg Methodist College.  While there, a team trainer filled out an NBA draft declaration form on Simmons’ behalf, signed Simmons’ name, and submitted the form to the NBA.

After the season, the NJCAA began investigating whether Simmons was an ineligible player, potentially having violated the NJCAA’s rules that students who have entered the NBA draft are not eligible to play.

After an investigation, the NJCAA ruled Simmons was ineligible and ordered Ranger College to forfeit all of its wins for the season.

Ranger College appealed the decision to an arbitrator, and that’s where the lessons come in.

This case seems like a no-brainer.  Simmons didn’t enter the draft himself, the evidence established that Simmons never filled out  the NBA’s packet of information to try and become draft-eligible, and prior to the draft, Simmons’ family sent a letter to the NBA trying to clarify that he did not want to be considered draft-eligible.

Surely an arbitrator would do what’s right.

Of course not.  Ranger College learned hard lessons about arbitration that we often warn our clients about.

Arbitrators often don’t do what is right or fair.  Too often, arbitrators are biased in favor of the parties whom they routinely see before them — whether that’s the NJCAA, an insurance company, or a credit card company.

Lesson number two: you can’t appeal the arbitrator’s opinion.  In the court system, if the judge or jury makes an error, then the party can appeal the wrong decision.  That’s not true with arbitration.  Arbitrators have an almost unbridled authority to do what they want.  They make a mistake?  No appeal.  They don’t understand evidence? No appeal.  They refuse to listen to you? No appeal.  A party to arbitration is stuck with a decision no matter how big a mistake an arbitrator makes.

Those are hard lessons to accept for clients who have to endure arbitrations, whatever the nature.

 

 

Brain Injuries: New Study Finds Even One Concussion Can Have Lasting Effects

The human brainMany of us that deal with these injuries routinely have suspected it, but a new study confirms that even one concussion can have lasting effects.

The study was based on extensive data on the health of people in Sweden.  The researchers found 104,000 people who experienced head injuries between 1973 and 1985.  The researches then looked at the these brain injured persons’ records after their injuries and compared those results with the results and history of the siblings of the brain injured persons.

The researchers found that persons who had even one concussion were more likely to receive future disability payments, more likely to need mental health care, less likely to graduate high school, and much more likely to die prematurely.

The researchers also found that the problems increased significantly if the person had more than one concussion, and if the persons had their head injuries after the age of 15.

The good news is that most of the people who had just one concussion were fine.  But people who have suffered concussions will still have to worry about what their future must hold.

The article also noted that the leading causes of brain injuries are what we see often in our practice.  For the very young, the leading cause of concussions is falls.  For teens, the leading cause becomes sports.  And for adults, the leading cause of brain injuries is car wrecks.

If you or a loved one has experienced a concussion or other brain injury because of another person or business’s carelessness, call us at (512)476-4944.  We will try to help you navigate the difficult process of pursuing your claim.

 

 

 

Brain Injuries: Risk Of Suicide May Increase Three Fold After A Concussion

brainI’m part of a nation-wide group of lawyers who regularly exchange articles and other information with one another about brain injury cases.

This week, we were having an online discussion about suicide, and we shared a study from earlier this year finding that persons who have suffered even a single concussion may be at a much higher risk for suicide.

What really struck me is how these risks apply to my clients.

In a Scientific American article about the study, Dr. Donald Redelmeier, one of the study’s lead authors stated:

The typical patient I see is a middle-aged adult, not elite athlete.  And the usual circumstances for acquiring a concussion are not while playing football; it is when driving in traffic and getting into a crash, when missing a step and falling down a staircase, when getting overly ambitious about home repairs — the everyday activities of life.

These are the things we routinely see in our practice. Over the last year, I’ve represented clients who have had brain injuries in car wrecks, bicycle wrecks, slip-and-fall accidents, and more.

Too often the diagnoses of these injuries is slow, and in many cases, not recognized until very late in the process.   This delays the treatment, including the psychological treatment, that clients need to help them start the road to recovery from these devastating injuries.

 

Is Football Affecting Your Case?

American football on white background.

Summer is over and football is back.  My University of Texas Longhorns are off to a great start with a big season-opening win over Notre Dame.  Even my daughter’s high school is 2-0.  Everything about football season is great, right?

Maybe not.

You see, football season may be affecting your case.

Earlier this week, the Atlantic published a concerning story about a study from LSU economists Naci Mocan and Ozkan Eren, who found that the results of college football games affect how judges rule.  The story states:

In looking at decisions handed down by judges in Louisiana’s juvenile courts between 1996 and 2012, the pair found that when LSU lost football games it was expected to win, judges — specifically those who had earned their bachelor’s degrees from the school — issued harsher sentences following the loss.  When the team was ranked in the top 10 before the losing game, kids wound up behind bars for about two months longer, on average.  When the team was not as highly ranked, it was a little more than a month.

This was a pretty broad study, looking at over 8,200 cases involving 207 judges.  The economists screened for the kids’ behavior in court, economic background, and even tested placebos through non-LSU games, and none of those factors had the same impact as football.

Some have criticized the findings, but the economists hope that their research will strengthen a growing body of evidence that suggests emotions influence unrelated decisions and that the study will perhaps help judges become aware of the decision-making and make the judges more careful.

That emotion is an issue.  Those of us who are trial lawyers know that jurors and judges often make emotional decisions and then try to subconsciously rationalize those decisions through their view of the logic of the case.  We’ve factored in for that.  But I guess now, we need to start asking jurors in voir dire about their football teams too.

Having said all that, enjoy Friday Night Lights, college football and the NFL this weekend.

 

Posted on: September 9, 2016 | Tagged

No Pokemon (ing) While Driving

Fairly typical questions we ask and investigate in car wreck cases are whether the driver was distracted by talking on the phone or texting while driving.  Now, I might have to start another series of questions after the introduction of Pokemon Go.

Pokemon Go is an app game that was released a few days ago, and it’s already taking over the virtual worlds of kids and young adults.

But this morning, I was alerted by a reporter acquaintance that the new game is also quickly becoming a driving hazard.  A quick twitter search confirmed his fears.

I’m inserting a few of the concerning screen shots in the post.  Needless to say, don’t play PokemonGo or engage in other distracting conduct while driving.  Keep yourself focused while driving so your ultimate time for Pokemon isn’t cut short.

IMG_6907 IMG_6908 IMG_6909 IMG_6910 IMG_6911 IMG_6912 IMG_6913 IMG_6914 IMG_6915

Mediation/Settlement Lessons From An NBA Trade

basketballI’m not a huge NBA fan, but over the last few days, I have been listening to a variety of talk show hosts discuss the trade of former NBA MVP Derrick Rose from the Chicago Bulls to the New York Knicks in exchange for a few of the Knicks’ players.

Normally, that wouldn’t be all that news-worthy, especially in the lawsuit context.  But one of the commentators made a point that was familiar to me.

When this commentator was asked who got the better part of the trade, the Bulls or the Knicks, the commentator laughed and said, “You know, both of the fan bases are pretty unhappy with the trade, which tells me that it was probably a pretty fair trade.”

I laughed to myself when I heard that because that’s advice I find myself giving a lot of clients.  In most settlements, the plaintiff settled for less than they really wanted, and the defendant paid more than they really wanted.  And I usually tell clients that when that happens, it’s a pretty good indication that the settlement is a fair settlement.

Now, that’s not to say that we never have a negotiation or settlement where we feel like we’ve been overly-compensated, but it’s rare — insurance companies aren’t in the business of just handing out money.  And in NBA or NFL or MLB trades, there are some trades where you can look at the deal and know that one side was really coming out much better than the other.

But more often than not, in most trades and in most settlement negotiations, both sides usually end up walking away a little disappointed, and that’s usually a signal that it was probably a pretty fair result.

 

Posted on: June 24, 2016 | Tagged

Texas Farm Bureau & Texas Department Of Insurance Trying To Take Away Important Rights

Insurance claim forme

I’ve seen a lot of questionable conduct by insurance companies, but the latest proposal may take the cake.

Texas Farm Bureau is now petitioning the Texas Department of Insurance to allow it to offer a “discount” to its home insurance customers in exchange for customers giving up their rights to a fair trial of any dispute.

But the good folks at Texas Watch have been trying to find out the details on this backroom deal and have come up with some details about the proposal.

First, the proposal tries to take away customers’ rights by requiring mandatory arbitration clauses.  Under the provision,

all disputes would go to mandatory, binding arbitration;

  • the insurance company has already selected the arbitration company (in essence, the private judge hearing your case);
  • the insurance company pays for the judge; and
  • the results are secret.

Gee, if your dispute is decided by a judge hand-picked by the insurance company and paid by the insurance company, I wonder how the results will come out?  You already know the likely answer to that.  That’s why several states forbid these types of arbitration clauses in insurance policies.

But what do you get for giving up those rights?  According to the proposal, homeowners are supposed to get a discount on their premiums.

But lo and behold, what did Texas Watch undercover when they filed open records requests with the Texas Department of Insurance?  That the “discounts” appear to be conveniently equal to the amounts that Texas Farm Bureau has already raised rates.  These types of bogus discounts — raising the price and then saying you’re offering a discount — would likely be illegal in most other contexts.  But here, there’s a real risk that the Texas Department of Insurance will approve them.

And don’t think this is just about Texas Farm Bureau.  If this type of conduct is approved by the Department of Insurance, other insurance companies will likely follow suit. Yours could be next.

Posted on: June 20, 2016 | Tagged

Playground Concussions Are On The Rise

brainOne of the recent headlines on Yahoo News was a story that playground concussions are on the rise.

You might be surprised to find that I think this is great news.  Why?

I don’t think the actual number of concussions are rising.  Instead, I think parents and school nurses and such are getting much better at looking for and diagnosing concussions.

This diagnoses is important.  I not only see kids affected with brain injuries in my practice, but I’ve watched my own kid struggle with a concussion.

These are serious injuries that need to be treated seriously.  But they can’t be properly treated if they’re not diagnosed.

There are also potential legal aspects in these claims.  For example, depending on the circumstances, a playground injury may give rise to a claim or lawsuit against:

  • the party that owned the playground
  • the party who designed the playground
  • the party who built the playground
  • the party who was responsible for maintaining the playground
  • the party who made modifications to the playground

If your kid is hurt on a playground, the first order of business is to make sure they get the care they need.  After that, if the problems are serious, then talk to a lawyer to discuss your options.

Another Tragic Wreck on Highway 290

This afternoon, there was a terrible wreck on Highway 290 in McDade.  Details are still coming in, but it appears that four people have died, including two children.

Unfortunately, this is only the latest tragedy along Highway 290, which seems to be becoming more and more dangerous.  For example, three people were killed about a month ago about one mile from the site of today’s accident.

And we represent a client involved in a fatal collision on Highway 290 just down the road in Giddings.

I guess we shouldn’t be surprised by the increasing number of serious accidents on Highway 290.  Both Houston and Austin are going in population, and Highway 290 remains one of the two major arteries going back and forth between the two cities.

Unfortunately, the roadways don’t seem to be keeping up with the population growth.  One result will be the increasing number of wrecks that we’ve been seeing.

For now, the best advice remains the same advice applicable everywhere:  (1) drive safe speeds; (2) avoid distractions in your car; and (3) lookout for others.

Lessons From A Self-Driving Car Wreck

Last week, Google reported on a new wreck involving one of its self-driving cars.  Google is trying to sell this as the first wreck involving its self-driving cars, but reports of other wrecks are out there.

Regardless, a new article from a computer/tech writer brings out one of the important issues with self-driving cars — you can’t program intuition.

And tuition is really important when driving.  My daughter is about to turn 16.  As we’re teaching her to drive, we spend a lot of time talking about anticipating what’s going on around us.

Intuition plays a big part of that.  You might not think that, but we all know it.

Some of it is obvious.  We can see a driver who might be drifting in his lane or driving aggressively, all indications that we need to watch them.  Or we can be driving downtown and see the pedestrians on the corner and ascertain whether they’re paying attention or whether they’re staring at their phones.

But it’s even beyond that.  In many instances, drivers develop intuition that helps the drive more safely even when we don’t know it.    We’re able to see a driver and, not really knowing why, know that we need to watch out for them.

Computers can never do that.  As the author writes in the article:

Yet, the dirty little secret here is that, while artificial intelligence has many advantages over a human driver (it can look in all directions at once, it can use multiple sensors, it never gets distracted), it could be another 20 years before robots can muster something that humans posses even from a very young age.

I’m talking about intuition, of course. It has a few other names — a “feeling” or a vibe, a sixth sense, or an awareness that’s incredibly difficult to program into a robot.

There are a lot of great advancements in technology that have made driving safer:  backup cameras, lane departure warnings, blind spot warnings, automatic braking when you might be close to a wreck.  And I appreciate them and am glad for them having seen the devastation that wrecks can cause, but I’m very skeptical about self-driving cars and the problems that they might bring.

 

 

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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