The saga of Supreme Court Justice David Medina is almost like a soap opera.  Just when you thought the story couldn't get more bizarre, it took another twist today.

For those not up to speed, here's the story in a nutshell.  The home of Texas Supreme Court Justice David Medina and his wife was burned.  After the fire, it was discovered that the Judge and his wife had some financial difficulties, and an arson investigation commenced.  Although the case was presented to a grand jury, it appeared that the prosecutors office didn't have any real interest in investigating the claim.  But the grand jury did.  And the grand jury later indicted both Judge Medina and his wife.  Almost immediately, the Harris County DA (like Judge Medina, a Republican, and also having his own political trouble) made statements that there wasn't enough evidence to pursue charges and eventually ended up dismissing the indictment.  The grand jury was so upset that members of the grand jury filed a suit seeking permission to speak about the case and tell the facts to the public.  Then, in recent weeks, the Judge's wife was re-indicted for arson.  And that's where the story stood until today.

Today's Houston Chronicle reports that Houston lawyer Frank Harmon made a call to a Houston bail bondsman and urged the bondsman to bail Justice Medina's wife out of jail.  The problem?  The attorney just happens to be involved in a major asbestos case sitting at the Supreme Court.  Harmon's firm helps represent Crown Cork & Seal Co., Inc., the defendant in the suit. 

So where will the story go in the future?  Given its past, who knows.

To read my other posts on the story, you can click here, here, here, & here.

I don't have time to make a detailed post, but the Washington Post (via the AP) had a great article today about the administration's use of administrative rulemaking authority to preempt lawsuits.  For those interested in civil justice matters, it is certainly worth a read.

I have a prior post that touches on this form of tort reform. 

Several Texas newspapers ran stories regarding a report from Texas Watch that criticizes the Texas Supreme Court for issuing a growing number of opinions anonymously. The Houston Chronicle’s article on the report notes:

The report by judicial watchdog group Texas Watch shows that 57 percent of the opinions issued in the court's 2006-07 term were anonymous and unsigned. In contrast, 5 percent of the opinions issued by the U.S. Supreme Court were anonymous in a similar time period.

Anonymous opinions, known as per curiam, are typically used for opinions that are not controversial, brief and for relatively obvious legal answers.

"All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters," the group wrote in the report. "By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists."

Justice Wallace Jefferson responded to the allegations by saying they were a mere peculiarity of the docket, but doesn't really give a reason for the rapid rise.  I'm not prepared to say that there's an ill motive from the Court, but I do think it's a trend worth watching.   

Last Friday, the Texas Supreme Court issued another opinion where it opted for big business over consumers. The question in Perry Homes v. Cull was whether the Culls’ claim was properly submitted to arbitration. In the case, the Culls filed suit against Perry Homes for defects in their house. Fourteen months later, after completing discovery and on the eve of trial (of which the defendants sought to delay), the Culls asked that the case be submitted to arbitration. The trial court agreed, and the case proceeded in arbitration, where the Culls received a judgment of $800,000.00. Perry Homes then appealed saying that the Culls had waived their right to arbitration, and the majority of the Supreme Court agreed.

While reading the facts on their face makes it appear that the ruling was correct, I don’t think it was. If you compare this case to other decisions where the plaintiffs accused the defendants of delaying before seeking arbitration, you’ll find little difference in the conduct, but a completely different result.

There are two elements that a party must prove to establish that the party seeking arbitration waived its rights to arbitration. First, the party opposing arbitration must prove the party seeking arbitration has substantially invoked the litigation process prior to asking for arbitration. And second, the party opposing arbitration must show that it was prejudiced by the other party’s invoking of litigation.

The issue in this case is whether Perry Homes was prejudiced by the Culls’ actions. When reaching this decision, the majority didn’t point to any specific evidence offered, but seemed to say "Gosh, it’s just inherently unfair to delay so long or to invoke the discovery process and then ask for arbitration." However, the Court has specifically rejected these types of arguments in the past when finding that defendants didn’t waive their rights to arbitration.

In 2006, the Supreme Court handed down the decision of In Re Vesta Insurance Group. In that case, the defendant filed a Motion to Dismiss, sent written discovery, and took 4 depositions. After two years of going through litigation, the defendant then asked that the case be sent to arbitration. The court held that this long delay (longer than the Cull case) and the sending of discovery were not enough to show that the plaintiff was prejudiced by the defendant’s invoking of the litigation process, and the case was sent to arbitration.

The Court has also rejected the idea that the notion of engaging in discovery is enough to show prejudice because many arbitrations allow discovery proceedings. In the 1998 decision of In re Bruce Terminix Co., the Supreme Court said, "Even substantially invoking the arbitration process does not waive a party’s arbitration rights unless the opposing party proves that it suffered prejudice as a result." In rejecting the plaintiff’s argument that it was prejudiced by discovery, the court said that being forced to responded to written discovery "does not establish prejudice because AAA rules allow arbitrators to arrange for ‘production of relevant documents and other information.’"

In 1996, the Court again addressed arbitration in the case of EZ Pawn Corp. v. Macias, and the court found that the plaintiff didn’t prove prejudice despite a year delay by the defendant in invoking arbitration and despite the defendant sending written discovery.

For all the reasons that the Supreme Court found that plaintiffs didn’t prove prejudice in these cases, the Court should have found that Perry Homes didn’t prove prejudice.

However, even more important than the actual substance may be the tone of the opinions. In each opinion where the defendant sought arbitration, the Court engaged in a rigorous analysis to show how the plaintiff’s proffered evidence didn’t support a claim of prejudice. In the Perry decision, there was no such rigorous analysis and the majority seems to assume that the delay and discovery caused prejudice.

Clearly, I think that if the Court had applied the standards and analysis set out in their prior opinions, they would have held that the trial court properly sent the case to arbitration.

I will also give credit where it is due. I have often expressed my displeasure with several members of the court, but Justices Johnson, Jefferson, Green and Willet all dissented, finding that Perry Homes didn’t fulfill its burden to show prejudice.

Now, I will add that the most interesting or sensationalist part of the case involves the actual parties. Bob Perry of Perry Homes is one of the biggest contributors to the Republican party, both in Texas and nationwide. All nine judges on the court have each received contributions totaling more than $260,000 from Perry’s family. Perry is also a major donor to Texans for Lawsuit Reform, which has given an additional $185,000 to the justices. Several of the posts below touch on that relationship.

This case has received a lot of publicity, and you can find more discussion at the sources below:

• Austin American Statesman
• Houston Chronicle
• Fort Worth Star Telegram
• Dallas Morning News
• The Jefferson Court Blog
• Texas Blue
• Paul Burka’s Texas Monthly Blog
• Todd Smith’s Appellate Law Blog

I had a hearing this morning, and before it was our turn, I had to wait and listen to another hearing.  In that hearing, the attorney for the state of Texas (a friend of mine) filed a motion for summary judgment.  The defendant, an individual who was representing himself, filed a response with evidence, but failed to show up at the hearing.   Instead of taking advantage of the absent individual, the attorney laid out the arguments put forth by the individual, construed the arguments in a way most favorable to the individual, and essentially told the court that his motion should be denied.

It was refreshing to see that kind of honesty and candor, which all of us should exhibit, in a courtroom.  At a time when you just hear the negative stories about attorneys and trial lawyers, I wanted to share that there are still good and decent lawyers out there.

I'd like to name him, but I won't because I don't yet have permission to do so.

Texas Watch, a bi-partisan advocacy group working to improve consumer and insurance laws for Texas families, has issued a new report about the increasing backlog of cases at the Texas Supreme Court.  The report, entitled Snail's Pace: An Analysis of the Texas Supreme Court's Growing Backlog, made the following findings:

The Philadelphia Inquirer has a recent article that discusses the disturbing trend of pre-dispute arbitration in the medical malpractice context.  The article summarizes the pros and cons of pre-dispute agreements with the following:

Proponents say arbitration is faster, cheaper and fairer than trials, but critics say the secretive system can be weighted against consumers and makes it harder to track complaints or build legal precedents...Temple University law professor Bill Woodward thinks the growth of a private judicial system "is a pretty nasty legal development, I think, and it's just crying out for correction from Congress."

I agree that pre-dispute arbitration agreements are a dangerous trend.  My major objection to pre-dispute agreements is that the consumer, for all intents and purposes, doesn't have the opportunity to receive counsel's advice as to what the consumer is agreeing to.  For example, by signing an arbitration agreement, a consumer is likely agreeing to rules that the consumer doesn't understand, may be agreeing to pay significant fees and expenses that might otherwise be avoided in a litigation setting, and may be agreeing to have the dispute resolved by a person or group that isn't satisfactory for the impending dispute. 

That's not to say that arbitration is a bad process.  In fact, we have agreed to arbitrate medical malpractice cases where no pre-suit arbitration agreement exists.  But in those situations, the parties each have the advice of counsel, and the attorneys for each side are able to educate their clients about the pros and cons of the process and to negotiate a system that is fair to all parties.

As the article notes, the Arbitration Fairness Act of 2007 is slowly going through the process and might provide some relief for consumers.  But until then, beware.

Some of our other posts on arbitration:

• The dangers of binding mandatory arbitration
• How arbitration steals your day in court
• Doctors requiring "no sue agreements"
• The flight from arbitration

Two professors from the Hebrew University of Jerusalem have conducted a fascinating study on client behavior involving contingent fees. (You can download the entire article for free from the linked abstract.) The study seeks an answer to the questions:

(1) Contingency fees are obviously beneficial to those that cannot afford hourly fees. But why do plaintiffs who can afford hourly fees prefer contingent fees even when the contingent fees might result in higher fees than an hourly rate?

(2) Why are contingent fees relatively uniform?

(3) Why don’t defendants use contingent fees?

I don’t have time today to post a lengthy summary of the article, but it is worth reading for those interested in the use of contingent fees.

Thanks to TortsProf and Point of Law for the link.

Other links of note:

In Defense Of The Contingent Fee (from us)

David Giacalone's response to our post

How to Negotiate A Reverse Contingent Fee (Blawgletter)

Newspapers around the state are detailing the backlog of cases at the Texas Supreme Court. The articles noted that at the end of 2007, the court left more cases pending than ever before, including 13 cases that had been pending for over two years.  The articles noted that Justice Paul Green, who is up for re-election this year, only published four opinions during the entire year.  You can be assured that these issues will get more press during the upcoming elections. 

Thanks to appellate lawyer Todd Smith for the heads-up.

I have long told people that potential clients often do not come to us because they are hurt, but because of the way they are treated after they are hurt.  Many times, patients don't seek to sue doctors or clients don't seek to sue attorneys just because the doctor or attorney made a mistake; they seek to sue when the doctor or attorney attempted to minimize, deny, or even attempt to cover-up the mistake.  And that phenomenon exists across cases.  Mad car wreck victims, scorned business partners, or upset employees are all more likely to file a complaint or sue if the person that harms them fails to take responsibility for their conduct. 

Moreover, once that suit is filed, it's my belief (without any real data to back this up), that juries are likely to award more in damages to those plaintiffs where the defendant fails to take responsibility and acts reprehensibly after the fact.

Yesterday, Dr. Sandeep Jauhar had a New York Times commentary that discussed these themes when he wrote about the use of apologies to minimize medical malpractice litigation.  He discussed a case where he had misdiagnosed a heart-attack, and wrote the following:

Afterward, in the control room, heat rose to my face as colleagues wandered in to inquire about what was going on. "How could we have missed this?" I asked aloud. I was well aware of the disturbing prevalence of heart disease in South Asians, whose risk is up to four times that of other ethnic groups. I knew that heart attacks in this population often occurred in men under 40, who often do not exhibit classic coronary risk factors. I knew all this, but somehow my mind had suffered a block.

Most doctors are afraid to take responsibility for medical errors. We are acutely aware of the potential hazards — legal and professional — of taking ownership of a mistake. But studies have shown that physicians’ apologies do not necessarily increase malpractice lawsuits. In fact, they may protect against litigation. Seventeen states have enacted legislation encouraging such apologies, some even making physicians’ expressions of remorse inadmissible in court.

I couldn’t bring myself to talk to my patient in the cath lab, while everyone was watching, so I decided to wait until he got to the recovery room, where it was more private.

I found him there lying on a stretcher. The pain in his chest was gone, he happily informed me. However, the groin, where the catheter had been inserted, now hurt. "They substituted one pain for another," he said, laughing.

I grasped the rails of the gurney. "I thought you had pericarditis," I said carefully. "I was obviously wrong. I’m sorry."

He seemed embarrassed. "No, no, please, the past is finished," he replied. "I am more interested in the future."

He asked about his prognosis. I told him that I thought it was good, though he would have to be on medications for the rest of his life. He nodded, looking disappointed.

A few days later, just before he was to be discharged, I stopped by his room. I asked him with whom he was going to follow up. He told me that he had been given the name of another cardiologist but that he had decided to go with me. "You have been terrific," he said. "Thank you."

I nodded silently, feeling empty. "You are much too generous," I said.

Dr. Jauhar's realization is nothing new.  For years, people have been advocating for doctors to say "I'm sorry" to reduce the threat of medical malpractice litigation.  In fact, the idea has even spawned networks of activists, including the "Sorry Works!" Coalition and the Perfect Apology network.

But even with all this publicity and mounting evidence of the benefits of apologizing, apologies still aren't prevalent.  And I guess I'm glad.  Otherwise, I might be out of business.