Perlmutter & Schuelke, LLP, Austin Attorneys » Auto Accidents

Trucking Accident Danger: Sleep Apnea

brooks — Fri, 26 Feb 2010 14:42:39 +0000

One of the hot topics in trucking news for the last few years has been that of sleep apnea. Sleep apnea is a medical condition that prevents its victims from getting a good night’s sleep, ensuring that they are drowsy all day long. You can imagine the dangers that truck drivers with sleep apnea might pose to themselves or others. Estimates are that sleep apnea contributes to 100,000 trucking crashes and 1,500 trucking accident related deaths each year.

Yesterday, a Wilwaukee TV station had a nice little story on these sleep apnea problems. The story cites one study that finds around 50% of all truckers suffer from sleep apnea. (Other studies find that number closer to 70%, and at least one study found the number to be as low as 17% — about the same as the general population.) Generally, truck drivers are at a higher risk for sleep apnea problems. One of the risk factors for development of sleep apnea is irregular sleep hours. Since a large portion of truckers prefer to drive at night or at least wake up very early in the morning to beat rush hour traffic, this risk factor clearly hits truckers. Another risk factor is obesity. Unfortunately, if a truck driver is driving ten or eleven hours a day, he or she doesn’t leave a lot of time for exercise so a number of truck drivers are victims of this risk factor.

Fortunately, sleep apnea can be detected through medical tests, and there is some movement by the Federal Motor Carrier Safety Administration to require that truck drivers be screened for sleep apnea issues. And, as the news story notes, some trucking companies are already screening for apnea issues.

For those interested in safe roadways, this is certainly one item to keep an eye on.

Do Personal Injury Lawyers Try To Scam You In The Settlement?

brooks — Wed, 10 Feb 2010 15:05:44 +0000

This is from another Google search that someone used to find our website.

I’d like to tell you unequivocally that the answer to the question is “No.” But I can’t (after all, we do a lot of legal malpractice work also so we know what lawyers are capable of doing). In truth, it’s really rare than a personal injury lawyer tries to scam a client in a settlement, but it does happen. (Don’t let that be an indictment of lawyers, in general, or personal injury lawyers, specifically. Every profession has a few bad apples. I’d like to tell you lawyers are exceptions to that rule, but we’re not. )

The more important question may be, “What can clients do to protect themselves and minimize the risk that they will be victims of a lawyer’s scam?” And the best answer is to be informed. Most personal injury cases are handled on a contingency basis. In general, the attorney will receive the settlement funds or funds following a judgment and deposit the money in the attorney’s trust account. Once the funds have cleared, the attorney will disburse the funds to all of the parties entitled to a portion of the settlement funds. In general, the groups that generally receive part of personal injury funds are:

The lawyers (who receive their fees and reimbursement for the expenses they advanced);
Medical providers (who might have outstanding balances that are paid out of the funds); and
Subrogation interests (paying back health insurance companies, Medicare, Medicaid, or any other group that may have paid part of the client’s medical expenses and/or paid for any of the client’s lost wages).

After all of these items are deducted, then the remaining funds are disbursed to the client.

So how do clients protect themselves? Make sure the calculations are done right and ask for documentation. Clients should make sure that they understand their fee agreement with their attorneys so that the clients understand how the fees are calculated. Clients should also not be afraid to ask for documentation to support the deductions. Reputable personal injury lawyers should not have have any problem providing an accounting of expenses, including showing receipts and/or canceled checks for expenses. Similarly, for payments made to medical providers or subrogation interests, the clients should be comfortable requesting copies of the checks written to each of these entities. If the client still doesn’t trust the lawyer, the client may also call the medical providers or the subrogation interests to make sure that the payments were actually made.

Taking these steps will help protect the client and, if the lawyer is trying to cheat the client, help the client figure that out.

May A Texas Personal Injury Lawyer Take A Percentage Of A Personal Injury Protection (PIP) Settlement?

brooks — Tue, 09 Feb 2010 22:56:29 +0000

From time to time, I look at the ways that people find our website, and this month, someone found the website by a Google search asking whether a personal injury lawyer could take a percentage of a PIP settlement. I don’t think I’ve answered that question on the site, so I thought I would answer it here.

First, some background. Personal Injury Protection (PIP) is a type of coverage that a customer may purchase when the customer is buying auto insurance. Unlike liability coverage (which will pay for damage to someone else if the customer causes a wreck), PIP protects the customer. Like liability coverage, the customer buys an amount of PIP. If the customer buys it, then the minimum limit of PIP is $2,500, but the customer may buy much higher amounts. If that customer is in a wreck caused by someone else, then the customer’s PIP will reimburse the customer (up to the maximum limit that the customer purchased) for medical expenses incurred as a result of the wreck and for a portion of the lost wages that the customer suffers as a result of the wreck.

Back to the question: May a personal injury attorney take a percentage of a PIP settlement? Generally, the answer to that question is “yes,” as long as the fee agreement between the attorney and the client allows for the fee to be taken on the PIP proceeds. The attorney and the client should negotiate that issue up front.

Having said that, many personal injury firms (including ours) do not take a percentage out of a Personal Injury Protection payment. While insurance companies are making claims more difficult, the process is pretty straight forward, and we just don’t feel right taking a fee for that little bit of work.

The one exception to this for us is when we have to file suit against an insurance company to recover PIP benefits. But doing that is very rare, and when we do file suit, we seek an order from the court requiring the insurance company to pay the attorneys’ fees that our clients incur in bringing that suit. (In most cases, defendants are not required to pay attorneys’ fees to plaintiffs, but payment of PIP benefits under an insurance policy is one exception.)

New York Times Speaks Out On Work Zone Car Wrecks and Accidents

brooks — Tue, 22 Dec 2009 22:36:54 +0000

One of the most dangerous parts of any drive — for both motorists and for construction workers — are highway work zones. Unfortunately, the dangers posed by construction zones do not receive a lot of publicity. Maybe that is changing. Yesterday’s New York Times contained a feature article: Efforts Lag at Making Highway Work Zones Safer. Some early take-aways from the article:

1. Work zone wrecks are a huge problem in Texas. Many of the example accidents that the article discussed occurred here.

2. Work zone dangers come in any number of forms. Some of the more popular problems that people need to look for are improper pavement drop-offs, barricades set up the wrong way, improper traffic stops, parking construction vehicles too close to the roadway, improper marking of construction.

3. There is no nationwide standard for work zone safety, and most regulations are left to the states. This poses a problem. For example, the article mentions that in one state, pavement drop-offs need to be addressed when the drop-off is three inches or more while in another state, the drop-offs only need to be address if more than five feet.

4. The problem is only going to get worse. As a result of the Obama Administration’s stimulus plan, billions of dollars are being pumped into roadway construction projects.

I’m convinced that this is such a problem that I’m going to devote a few posts to it over the next week or so. In the meantime, I’d love to hear comments or suggestions from any of you that have experienced close calls in construction zones.

Injured? Avoid High-Volume Settlement Mill Attorneys

brooks — Tue, 15 Dec 2009 03:44:42 +0000

I’ve long warned injured persons about hiring lawyers who engaged in a high-volume mill practice. Now, a Stanford law professor has taken a hard look at settlement mill law firms. Professor Nora Engstrom has authored Run-of-the-Mill Justice in the Fall 2009 issue of the Georgetown Journal of Legal Ethics.

“Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.”

In her article, Professor Engstrom interviewed forty-nine past and current settlement mill attorneys and non-attorneys to find out how they worked.

First, what is a settlement mill? Professor Engstrom says they generally have ten characteristics:

(1) They are high-volume personal injury practices. Conventional personal injury attorneys have around seventy cases open at any one time and serve approximately 110 clients per year. Settlement mill attorneys often triple that — juggling 200 to 300 open files on any given day. (Our firm tries to limit ourselves to twenty to twenty-five open cases at any one time.)

(2) They engage in aggressive advertising from which they obtain a high proportion of their clients. Most conventional firms rely on referrals from other attorneys or prior clients, but in settlement mills, almost all cases come from advertising. For settlement mills, obtaining a client via an attorney referral is said to be somewhere between rare and unheard of.

(3) They epitomize “entrepreneurial legal practice.” At settlement mills, it is assumed that claims will be straightforward. Standardized and routinized procedures are then designed and employed in keeping with that assumption. Efficiency trumps process and quality. Important tasks are delegated to non-lawyers. Factual investigations are short-circuited or skipped altogether. And negotiating with insurance adjusters and brokering deals is prioritized over work that draws on specialized legal education.

(4) They take few — if any — cases to trial

(5) They charge tiered contingency fees, fees that increase once cases are filed. While this sounds good in theory, many attorneys used these increased fees to bully clients into accepting settlements.

(6) They do not engage in rigorous case screening and thus primarily represent victims with low-dollar claims.

(7) They do not prioritize meaningful attorney-client interactions. Attorney-client interaction is minimal and, when it does occur, tends to be paternalistic rather than participative. Except for agreeing to accept the ultimate offer, clients play little role in the dispute resolution process. Clients met with their lawyers when the retainer was signed at the beginning of the representation and when the settlement check was delivered at the end.

(8) They incentivize settlements via mandatory quotas or by offering negotiators awards or fee-based compensation. These requirements and rewards put the focus on the number of files closed or the aggregate returns, as opposed to obtaining a fair value for each individual client.

(9) They resolve cases quickly, usually within two-to-eight months of the accident. Studies suggest that, even if no lawsuit is filed, around one year elapses between the accident and the settlement if a claimant is represented by counsel. At settlement mills, in comparison, cases are sometimes resolved in little as two months and usually within eight.

(10) They rarely file lawsuits.

So what’s the problem with the mills? Professor Engstrom concluded that those with meritorious claims likely get less than they would if not for settlement mills. Why? First, fast settlements depress the value of the claims. Second, settlement mills rarely file lawsuits, and the acts of not filing is correlated with lower settlements. Third, settlement mills commonly impose quotas or incentives on negotiators, which put the emphasis on turning claims over, rather than maximizing their value. Fourth, attorney reputation for going to trial affects bargaining. Because settlement mills have a reputation for avoiding trial, they have less leverage in their dealings with insurers and are less likely to obtain top-dollar.

What did the attorneys say? Professor Engstrom quoted one defense lawyer as saying that he was personally aware of cases I think were settled for $10,000, $15,000, $20,000 less because the adjuster knew the attorney handling the case was a settlement mill.

Even the settlement mill lawyers confirmed they were leaving clients’ money on the table. Former settlement mill lawyers reported that offers they received for comparable cases improved upon departing the settlement mill and joining a more conventional law firm.

You need to learn from this study. If you or a loved one is hiring an attorney following an accident, I urge you to consider what a settlement mill firm might do to the value of your case. I also encourage you to purchase Professor Engstrom’s article for the $3.50 purchase price. If it helps you make an informed decision on hiring an attorney, it will be money well spent.

Injured In An I-35 Accident? How Do You Find A Lawyer?

sbrennan — Wed, 21 Oct 2009 16:13:10 +0000

I’ll be honest. I groaned when I saw this first question listed for our I-35 blog group. The first reaction I had to writing about this question was that it was too similar to obnoxious billboards I’ve seen for personal injury lawyers in Dallas or Houston.

But then I thought back to some of my experiences. Having done this a while, I’ve had numerous cases where I have been the second or third attorney to represent the client. The client comes to me with a myriad of complaints: their previous lawyer wouldn’t return calls; the lawyer tried to settle the case before it was ready to be settled; the lawyer wasn’t treating them fairly, etc.

And in most of those cases, I try and ask how the client found the first attorney. And the source of the first lawyer is usually something like television or yellow pages ads. I visibly groan at the responses. I know that relying on those ads is a terrible way to pick an attorney.

But most of the general public doesn’t.

In hindsight, this may be the most important question we could answer for you. If we can help you can make a good decision in hiring a lawyer — help you avoid those lawyers that are looking out for their interest and not yours, then this series is a success, in my mind.

So back to the question: After you’ve been in a wreck or accident, how do you find a good personal injury lawyer?

I think there are two parts to this question — getting names of a lawyer and then evaluating the lawyer once you have names.

How do you get names? The best way to get names of a lawyer is to ask for a referral. Specifically, ask any lawyers, friends or other professionals you know for referrals. If you know any lawyers, ask them first. Austin is a fairly small legal community, and most lawyers will know two or three good personal injury lawyers if you ask them for a referral.

But not everyone knows a lawyer. If you don’t know a lawyer, ask your friends or family members for suggestions. These people are looking out for you, and if they have had an experience with a personal injury lawyer, I think you can generally trust them to give you a good name.

If you don’t know any lawyers or have any friends or family members that have used a personal injujry lawyer, then ask other professionals. Many professionals will have worked with some attorneys and might be able to help.

Once you get a name, how do you evaluate whether the attorney will be right for you? There are several things to consider. First, make sure your attorney regularly practices personal injury law. This is important for two reasons. First, insurance adjuster keep a “book” on personal injury lawyers. They know the attorneys in Austin that regularly practice in the personal injury area, whether the lawyers are willing to file suit and pursue a case, etc. If you hire a lawyer that doesn’t regularly practice in the personal injury arena, or a lawyer who has a reputation for always settling early, then you are compromising your claim.

Additionally, personal injury is a tricky part of the law. There are a number of special rules that apply to personal injury cases that don’t apply to other areas of litigation. If the lawyer doesn’t regularly practice personal injury law, it is unlikely that the lawyer is up to date on all important areas of the law.

Next, find out who in the office will be working with you. The number one complaint against lawyers is that lawyers don’t keep clients informed about what’s going on. You need a strong commitment that the lawyer you retain will be accessible and not farm your case out to some staff member.

Finally, make sure you and your attorney get along. For a successful case, you and your attorney will need to be in regular contact with one another. A lawsuit is unpleasant enough as it is; it can be downright painful if you and your attorney don’t get along. And it’s okay not to get along. For various reasons, some people just don’t “click” with one another. If you get that feeling, tell the lawyer that and ask them to provide names of other personal injury attorneys in the Austin area. The attorney’s willingness to agree to that request may tell you a lot about that attorney too.

As I said earlier, I think this is an important question. To read more thoughts about it from the other attorneys in the group, click the links below:

Steve Lombardi, Des Moines, Iowa: Finding A Personal Injury Lawyer For An I-35 Car Accident

Mike Bryant, Waite Park, Minnesota: Why Hire A Lawyer After An I-35 Collision?

Thanks for reading, and I’ll update with posts from other lawyers in the group as they are written.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Don’t Drink And Drive Following Your Game-Watching Party

sbrennan — Mon, 19 Oct 2009 17:21:16 +0000

Saturday afternoon, my family attended the funeral of my great-aunt. After the funeral, some of the family members and guests were to attend the burial north of Austin. Normally, funeral processions go without incident. But not this one. As the family’s limousine was passing through an intersection, a drunk driver ran a red light, hit the family’s limousine and then hit one of the motorcycle officers who was stopped directing traffic. Several members of my family were hurt, and the officer’s leg was broken.

I suspect that it was not a coincidence that the wreck happened shortly after the conclusion of the University of Texas – Oklahoma football game. I don’t know for sure, but I’m guessing the guy had enjoyed a few alcoholic beverages during the game and was happy to leave the party after a Longhorn win.

Don’t let yourself be that guy. As an avid Texas sports fan, I’m not opposed to getting together and watching sports and having a beverage or two. But, think before you do something stupid like drinking and driving. You never know when you’re going to ruin someone’s day, or worse, their life.

Car Wreck/Safe Driving Tidbits

sbrennan — Tue, 01 Sep 2009 20:01:44 +0000

There have been a number of auto accident/safe driving stories over the last few weeks, but I just haven’t had time to write on them. Instead of ignoring them, I thought I’d put up a brief post touching on each story.

Austin is moving forward with a plan to ban text messaging while driving. The city council has agreed to the ban, and city staff is now charged with coming up with a statute. As you may know, text messaging while driving is one of our most popular topics with the following posts:

* In Study of Truck Drivers, Texting While Driving Proves To Significantly Increase Risks of Wrecks
* More Studies Confirm Texting While Driving Is Worse Than Driving Drunk
* Text Messaging (and Twittering) While Driving
* Car Wrecks -Text Messaging While Driving

Several new driving laws go into effect today. Namely, everyone riding in a vehicle must wear a seat belt, all children under the age of eight and under 4′9″ tall must use a booster seat, drivers in school zones may not use cell phones without a hands-free device.

Also today, it became easier for police departments around the state to take blood samples of suspected drunk drivers without a warrant. Previously, warrants were required unless the person was involved in a wreck that had a serious personal injury. As of today, the law allows warrantless searches when a person is involved in a wreck causing any injury, when the driver has a passenger younger than 15, or when the driver has prior DWI convictions. Interestingly, the APD did its first blood draw under the new law less than thirty minutes after the new law took effect. You can check out the blog of our friends at Sumpter & Gonzalez to get a view from the criminal defense bar.

Capital Metro’s commuter rail is once again delayed. We’ve been following the safety risks associated with the new light rail for some time now.

* Will Capital Metro’s MetroRail Ever Be Safe?
* What A Train Wreck! Literally — New Rail Safety Features Malfunction

That’s it for today. I’ll try and do a little better staying up to date.

Wrong Way Driver In Austin

sbrennan — Fri, 21 Aug 2009 20:04:24 +0000

Wrong-way drivers are a bigger problem than one would think. I’ve written a couple of blog posts about wrong-way drivers on the Austin Injuryboard blog, and Des Moines Personal Injury Lawyer Steve Lombardi has written extensively on his Des Moines blog with a 20 part series on the problem. But Austin has largely avoided the problem. Until now.

Last night 24 year old Alex Reyes made a horrible error, entering I-35 the wrong way just south of Austin and causing a head-on wrong-way collision. Reyes died at the scene, and the other driver was taken to the hospital by StarFlight.

At this time, it appears that alcohol did not contribute to the wreck. That’s unusual. Most wrong-way wrecks involve alcohol or elderly drivers.

These wrecks are a huge problem because of their severity. They are most often head-on collisions, and in most instances, involve fatalities. These wrecks are also a problem because they are difficult to prevent. From the driver’s perspective, most of the wrecks are caused by confusion because the driver is either drunk or under the influence of drugs or because the driver is elderly and confused. While some of these wrecks can be prevented by better road designs and some can be prevented by newer technologies, these wrecks are generally hard to prevent.

The wrecks are also hard to avoid from the victim’s perspective. The oncoming driver is obviously unexpected and there is often little time to react.

Nevertheless, there are some things that can be done. In his last post on the subject, Steve Lombardi has several tips on avoiding being a wrong-way driver and avoiding being a victim of a wrong-way driver. I recommend that everyone take three minutes to read his suggestions to help make the roads safer for all of us.

What we can learn from D Magazine’s “My $25,000 Fender Bender”

sbrennan — Thu, 30 Jul 2009 16:55:25 +0000

Many of my fellow plaintiff’s lawyers are up in arms over a recent D magazine article purporting to tell the story of a claim and lawsuit after the author was involved in a “minor car accident.” The article, My $25,000 Fender Bender: How a minor car accident, a high-strung Ethiopian lawyer, a sick dog, an uncommonly attractive jury, and a 2-foot-high stack of legal papers took over my life, is basically the defendant’s indictment of the civil justice system after he hit someone and was sued. I don’t know whether the article is true or not (there are several things that make me question its total veracity), but even assuming it’s true, there are several things that all of us can learn.

I want to primarily discuss the process, because that’s what the author complains about, but first I wanted to address his claims about the plaintiff’s injuries. The author mocks the plaintiff’s “soft tissue” injuries when he simply “nudged” another car and neither car had any significant damage. I don’t mind the author believing that; most people do. Insurance companies have been amazingly successful at marketing this theory to people (even creating LIST (low impact soft tissue) and MIST (minor impact soft tissue) acronyms to help people remember).

But it’s just wrong. Most of the recent literature finds that due to the design of cars (stiffer bodies, stiffer seat backs, etc) there is no relationship between vehicle damage and injury. (Drs. Centeno, Freeman and Elkins, A Review of The Literature Refuting the Concept of Minor Impact Soft Tissue Injury, Pain Resource Management, Summer 2005; Robbins, Lack of Relationship Between Vehicle Damage And Occupant Injury, SAE 970494). Heck, always remember a person can herniate a disc by something as simple as sneezing. And the literature also shows that these soft tissue injuries are real. Even without broken bones or something that shows up on x-rays, much of the recent literature finds that 15-40% of patients with neck pain after a car wreck develop chronic pain. (Drs. Schofferman, Bogduk, and Slosar, Chronic Whiplash and Whiplash Associated Disorders: An Evidence-Based Approach, Journal of the American Academy of Orthopaedic Surgeons, Oct. 2007.)

But I don’t want to get into a fight about the science; I want to talk about what we can learn from the process.

First, and many of my plaintiff lawyer friends won’t be happy to hear this, but there is a lot of truth to the story. I don’t know if the parties involved were in a scam, but I’ll admit that there are far too many chiropractors and lawyers working together to “manufacture” claims. I’ve written on this disgusting practice numerous times, and I hope everyone can learn from the article to avoid the scheme. If you’re in a wreck, and you get a solicitation call from someone that’s going to help “refer you to medical care,” then run. Do not pass Go, and do not collect $200.00. Protect yourself and avoid these types of scams. Get a reputable lawyer; someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get new legislation passed limiting barratry so maybe there will be relief in sight.

Having said that, the author doesn’t take any responsibility for the conduct of his insurance company or his lawyer. As best I can tell from the article, the plaintiff had incurred $5,200 in bills for the medical care he received as a result of the wreck. At a mediation, the insurance company offered $500.00 to settle the case. This type of offer forces the case to go to trial. One of my favorite mediators in town says that as a plaintiff, the best offer you can get is $0 or the equivalent of $0 (like in this case) because then you know you have to try the case. There are no hard questions about settling.

In this case, that $500 offer from the insurance company forced the case to trial. The author concludes “my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work.” And he seems to be blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and they systematically make low offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.

I hear you saying, “but with those shady medical setups, that $500 was reasonable.” Well, the jury didn’t think so. The jury awarded the plaintiff the full amount of his medical expenses, plus a little more. When we evaluate settlement offers, we always evaluate them against what we think a jury would do. In this case, the jury thought the $500 was wrong. The adjuster got it wrong. If the adjuster had offered a more reasonable amount, I’m pretty confident the lawyer would have stopped beating his chest and the case would have settled.

The author also didn’t seem to understand another of the jury’s decisions. In Texas, claims must be brought before the statute of limitations expires. In addition to filing suit before limitations expires, you need to either have the defendant served before the statute expires or show that you were diligent about serving the defendant. In this case, the defendant argued (and probably rightfully so) that the plaintiff wasn’t diligent in serving the citation. But the jury found diligence. Again, the author takes no responsibility, claiming that the jury didn’t understand the issue. But again, it’s his lawyer’s job to make sure the jury understands the issue. If the lawyer didn’t properly explain the charge to the jury, he has no one but himself to blame.

And I think we can also learn about framing a story. When the author told the lawyer that they had lost, the lawyer responded, “We lost but we won…The guy wanted $25,000 and got pocket change.” Notice the lawyer didn’t say, “The insurance company wanted to pay $500, but paid $5,990 (and over $11,000 to me) instead.” It’s all about how you frame the story.

What the article also doesn’t do is present the typical case. For all the griping about those of us that are trial lawyers, most victims in our suits are hurt and have valid claims. I’m waiting for D magazine to present the story of my clients that file suit and then are forced to endure frivolous defenses from the insurance company lawyers that are driving up the cost of the case or of the client making a claim on his own uninsured motorist policy and his own insurance company tries to take advantage of him. Those cases are a lot more typical, at least in my practice, than the marginal claims.