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.     

I had the pleasure of sitting through jury selection this week for a criminal trespassing trial.  I was far enough back in the panel that I was not "in play" so I didn't get many questions, and I could watch as a disinterested observer.  It was interesting being on the other side of the rail, and there were certainly things I learned from the experience.

First, tell the jury what's going to happen.  Tell them what's going to happen in the process, tell them why you're going to ask what may seem to be private questions, etc. I was the only lawyer on the panel, and after one of the attorneys pointed out I was an attorney, I was peppered with questions about what was going on.  Never forget that most of the jurors have no idea about the process other than what they've seen on TV.  And there's not a lot of voir dire on TV.

Second, make people talk.  The prosecuting attorney, who was young, finished his voir dire and probably 1/2 of the jurors that were likely potential jurors had not said anything other than responding "yes" or "no" to various questions.  The defense lawyer, who was more experienced, did a much better job of getting the jurors to open up. 

Third, don't be afraid to get off script and follow up with jurors' answers.  I'm not privy to any of the facts of the case, but what I gathered was this was a dispute among neighbors where the big issue was going to be whether the defendant had notice that he was not welcome on the property.  The prosecutors indicated that you could have notice by putting up a no trespassing sign, obviously, or putting up a fence.  During the voir dire, one juror volunteered, in an off-topic answer to a question, that he had criminally trespassed before to go hunting on someone else's property.  But if the rest of us were asked whether we had criminally trespassed under the prosecution's strict definition, we would have answered "yes."  I know I've gone in all of my neighbors' fences, without their agreement, to get various balls that my kids hit in their yards. And I'm sure most of us have similar stories.  Getting those stories out, I'm guessing, would have made the jury take a harder stand on the prosecution's strict interpretation of the statute.

Fourth, know the law on strikes for cause.  In Texas, there are some almost magic words that, when used, can lead to jurors being dismissed for cause, but the judge and other side can also rehabilitate the potential jurors to avoid a strike for cause.  Know what the magic words are and, once you get the juror to use those words, use one of the numerous techniques available to get them to commit to that opinion so they can't be rehabilitated.  Because I was one of the jurors that was a potential challenge for cause, I was able to watch as the judge called us to the bench to be questioned by the attorneys and judge.  Both of the attorneys struggled at getting the jurors to admit their bias (even when it appeared that jurors were trying to be biased), and neither did anything to get them to commit to that bias to prevent rehabilitation.

Anyway, it was a great experience to go through.  I think any trial lawyer should want to go through voir dire and a jury trial as a juror to see the process from the other side.

As you may recall, Baylor Law School professors conducted a survey of the state's district judges to get their thoughts on frivolous lawsuits, excessive verdicts, and the such.  Two Texas plaintiffs' lawyers have recently written a commentary based on the article for the San Antonio Express News.  TLR attorney Lee Parsley had his response, and now the plaintiffs' attorneys have responded.  To see all the action, check out Todd Smith's Texas Appellate Law Blog.   

The brilliant Stephanie Mencimer has a new article entitled Suckers Wanted: How Car Dealers and Other Businesses Are Taking Away Your Right to Sue.  In it, she starts by outlining the problems she had in trying to buy a car without an arbitration agreement.  When she and her husband asked the dealership to remove the arbitration clause, the dealership refused and told them that it was non-negotiable and that no other dealer in the area would sell them a car without a similar provision.  The irony of that position is best set out by the following excerpt from her article:

Mandatory arbitration clauses are so insidious that car dealers actually furiously lobbied Congress to get them banned in their contracts with auto manufacturers. The National Automobile Dealers Association wrote members of Congress in 2000 that if they weren't outlawed for the dealerships, mandatory binding arbitration clauses would allow "multinational motor vehicle manufacturers…to be able to unilaterally deny small business automobile and truck dealers rights under state laws that are designed to bring equity to the relationship between manufacturers and dealers." Congress agreed and passed legislation protecting the dealers. Apparently, though, the car dealers didn't see a problem in using the same sort of underhanded contracts with their own customers. (Some of them may also be forced to use the clauses whether they like it or not. Several major auto manufacturers' credit divisions have told their dealers that they won't provide financing to any dealerships that don't have arbitration clauses in their sales contracts, says Paul Bland, a lawyer and expert on arbitration at the nonprofit law firm Public Justice.)

Hopefully some help is on the way.  Ms. Mencimer does outline a list of potential reforms that might minimize some of the federal arbitration requirements.

Ms. Mencimer also has an interesting blog post relating to a very unique problem with arbitration  As a dispute between a soldier and Daimler/Chrysler financing was getting under way, the soldier was deployed to Iraq.  Under federal law, any litigation between the two parties would be temporarily suspended by federal law until the soldier returned.  But not so with arbitration.  There is a real risk that the arbitration will go forward while the soldier is overseas, leaving the soldier unable to present testimony in support of his claims.   

For some of our thoughts on arbitration, check out some previous posts:

• How Arbitration Steals Your Day In Court 
• Doctors Now Requiring "No Sue" Agreements
• Arbitration and the Godless Bloodsuckers
• The Flight From Arbitration
• Arbitration:  The $27,000 answer?

You don't often have a forum where attorneys get to grill members of the Texas Supreme Court, but that is reportedly what happened at a conference sponsored by the Dallas Bar Association.  According to an article by the Dallas Morning News, the situation was almost unprecedented:

Sample query: Do the justices hunt for plaintiff victories in appeal courts just so they can overturn them?

"To be honest, I've never seen anything quite like that in a bar group," Justice Paul Green told Texas Lawyer magazine after the event.

The incident has added fire to a decade-long debate over whether Texas' highest court favors big business in lawsuits.

And the criticism is increasing. There has been a lot of criticism about the Court from the plaintiff's bar, but in the last year, the academic world has chimed in with a groundswell of criticism.  For example, Professor Gerald Powell of Baylor filed an amicus brief with the Court criticizing its review of jury decisions. Several other law professors around the state joined in with that brief.  In addition, UT professor David Anderson has published an article that reviewed the Court's decisions over two recent terms, finding that the Court found for big business and insurance companies over 87% of the time. 

We are glad that the popular press is highlighting some of the conduct of the Supreme Court, and we hope that voters pay attention during the next election.

There is a long line of politicians who vote for various tort reform measures only to need to turn to the tort system themselves.  The latest is Florida Republican Stephen Wise, a strong supporter of reform of medical malpractice and nursing home litigation.  According to the Florida Times Union:

 As a state representative and senator representing North Florida since 1998, he consistently has fought against trial lawyers and for medical malpractice reform. He repeatedly has voted for measures that make it tougher for people to take medical institutions to court - and to limit the amount of potential damages if they end up there. In particular, he has focused on nursing homes. In 2004, the Times-Union asked all the local candidates to name their top three issues. Wise said his were education, constitutional amendment reform and nursing home reform.

Now comes word that Senator Wise's wife has filed suit against a Jacksonville, Florida nursing home following the death of her father.  And apparently, the perspective of plaintiff has changed Senator Wise's outlook:

You don't want people suing for goofy things," Stephen Wise said. "But if a loved one isn't taken care of, then I think there should be consequences. ... There has to be a balance."

I reminded Wise that in 2003 Jim King, then the state Senate president, was skewered by fellow Republicans for trying to find a balance. At the time, Wise disagreed with King and pushed for lower caps. Today?

"You go back and say he probably had a lot of wisdom," Wise said. "It's tough."

While we don't wish ill will on anyone, we do believe that any time a tort reform supporter has the opportunity to look through the eyes of a plaintiff, then it increases the chance that a just tort system can continue.

Thanks to Orlando personal injury lawyer Ed Normand for the link.

We recently received a link to the Progressive Gainsharing program.  Under the program, Progressive Insurance employees receive bonuses based on how well the company does.  That's not a problem for many industries, but it is a problem in insurance if adjusters receive monetary incentives to deny claims. 

Perhaps we should give Progressive some credit for making this information public.  It's not really a surprise that such a program exists; there has been widespread speculation that such programs exist in many insurance companies (and in some cases, the ultimate discovery and documentation of those programs has proven very helpful to establish bad faith conduct on the part of the insurance companies).  The real surprise is that Progressive would be so forthcoming in advertising the existence of the program.

MSNBC correspondent Bob Sullivan has a new article at his blog, The Red Tape Chronicles, entitled "How Arbitration Steals Your Day In Court."  The introduction is telling:

If I told you there was a courtroom in America where consumers lose lawsuits to businesses 94 percent of the time, and there is no chance to appeal, you'd probably never want to go there.

But here's the problem: You don't have a choice, thanks to small print.

Many of the facts from the article from from a report by Public Citizen.  One the of the many startling findings as that: 

Public Citizen found one arbitrator had ruled 1,292 times during the span -- and only 21 times for the consumer. On one particularly busy day, he ruled on 68 cases -- all in favor of companies.

Fortunately, there are currently Congressional proposes to reign in arbitration abuses.  Earlier this year, Senate Democrats introduced the Arbitration Fairness Act of 2007.  It is currently under debate.

As for us, we continue to think that arbitration is appropriate in many cases.  But parties can't know whether arbitration is an appropriate remedy until they look at individual disputes.  As a result, we're opposed to mandatory arbitration agreements, but do support arbitrating some cases as the disputes warrant.

Last week, the US Fifth Circuit Court of Appeals (which governs Texas) handed down the troubling new insurance case of Amschwand v. Spherion Corp.

Mr. Amschwand was an employee of Spherion. During Mr. Amschwand's bout with cancer, Spherion switched insurance companies. At the time, Spherion told all employees they could switch their life insurance. Mr. Amschwand duly enrolled, and his human resources department orally confirmed that his policy had converted and that he was eligible for all benefits. As his condition grew worse, Mr. Amschwand made several calls to Spherion, and in each call, the company confirmed that he was covered. Upon Mr. Amschwand’s death, the insurance company refused to pay benefits, and Mrs. Amschwand eventually filed suit to recover the proceeds of the insurance policy.

Because the life insurance was a "benefit" offered by his employer, the claim was governed by ERISA (the Employee Retirement Income Security Act a federal statute). Analyzing a series of cases, the Court held that Mrs. Amschwand was not entitled to the proceeds, but was only entitled to "equitable relief," which the court found to be a refund of the amount of premiums that the Amschwand family paid for the insurance. As you can imagine, the amount due as a refund of the premiums was significantly less than the policy benefits.

This is a demonstration of the fundamental problem of ERISA. ERISA was passed in the early 1970s to be a consumer protection statute to help workers recover employee benefits that they were promised by employers. But since then, federal courts, particularly the Fifth Circuit, have been continuously narrowing the reading of ERISA. Now, we’re to the point where ERISA no longer helps consumers, but is a big benefit for employers. For instance, in this case, if ERISA did not exist, the couple would have been able to sue the company for a breach of contract claim or for violations of state insurance statutes (previous ERISA cases have held that ERISA preempts these claims, but there would be no preemption if ERISA was removed), and the Amschwand family could recover the benefits due them.