Summer Safety Tips

For those of us in the Austin Independent School District, today is the first day of “summer” so I thought I would mark the occasion by sharing some summer safety tips.

SUNBURN:  The number one summer ailment in Austin has to be sunburn.  Make sure to limit your exposure to peak sun, use sunscreen, and keep covered.  If you experience a sunburn, remember that ibuprofen or aspirin can help relieve the pain. You can also use moisturizing cream and cold compresses/washcloths as long as the skin isn’t blistering.  If the skin does have significant blistering, seek medical care.

HEAT EXHAUSTION:  We all hope this summer won’t be as bad as last summer, but even in a “typical” Austin summer, heat exhaustion is a concern.  Remember to drink plenty of liquids and modify your activities as the weather requires.  But most importantly, be aware of the signs of heat exhaustion.  Common symptoms include:

  • You quit sweating.  If heat stroke sets in, your body can’t compensate and you quit sweating.
  • Pale skin.
  • Muscle cramps.
  • Confusion or disorientation.
  • Headaches.
  • Nausea or vomiting.

If you or a friend experience heat exhaustion, know what to do.  Get to a cooler area, apply water to the person (or immerse them in a cool pool or bathtub), and apply ice to neck or armpits.  If the symptoms are severe enough, call 911.

SPORTING INJURIES:  As kids have more free time, the number of sporting injuries increase. Whether biking, skateboarding, or riding scooters or horses, make sure your kids are wearing helmets.  As a personal injury lawyer, I’ve seen too many head injuries that could have been minimized or even eliminated by a helmet.  Protect your kids.

Make sure that your other sporting equipment is safe.  If your kids frequent playgrounds, make sure that the playgrounds have a safe surface (falls account for over 60 percent of playground injuries).  Watch out for movable soccer or basketball goals that can fall over on children, and if your kid is playing on a trampoline, make sure that they know the safety rules and that the trampoline is well maintained.

 

 

 

 

 

Head Injury Training Program a Step in the Right Direction for Youth Sports

Playing sports is a right of passage for many kids. But kids can suffer serious head trauma and jeopardize their future.

It goes without saying that playing sports is a big part of going to school. Volleyball, basketball, football, hockey, and soccer are some of the most popular sports. Kids risk sustaining serious injuries if they have a concussion while playing sports. A pattern of concussions during youth has an impact on cognitive functions later in life. Those who continue to play sports face the reality of dying if they get hit once too often.

Although head injuries seem to be quite prevalent in just about any sport, there is not a lot being done about it. It is talked about and many people worry; yet, there is not much in the way of training and education about the seriousness of head injuries and prevention.

New Jersey recently introduced a bill into the legislature that would mandate athletic coaches to actively participate in a head injury prevention training program. It is about time. Kids are our future, and we need to not only protect them from serious head injuries, but train and educate them about what traumatic brain injury is, how to recognize it, avoid it if possible and how to deal with it should they get hit. With enough people supporting the bill in New Jersey, the program may start to be utilized in other states, even Texas.

While it is true that anyone may sustain a head injury, athletes are more likely to get thumped in the head because of the nature of the games in which they participate. Most often, head injuries are the result of a blow to the head or even being violently shaken. Any blow to the head has the potential to result in a concussion, which is an injury that alters the way the brain works. Even if the injury is mild, there are still long-lasting repercussions. Moderate to severe injuries have the potential to lead to a vegetative state and death.

Will the New Jersey bill do what it is intended to do? That is a tough question, but so far it looks like it may be off to a good start. However, the bill excluded cheerleaders because what they do is not considered to be a sport, but is classified as an activity. That is odd, given the well-documented fact that cheerleaders many protests.

For instance, many will recall the pyramid stunt and the media frenzy in 2006 when Kristi Yamoaka sustained a fractured vertebra after she fell from a human pyramid and hit her head doing this stunt. She suffered a concussion and badly bruised a lung. Although she eventually recovered, not everyone is as lucky. Thankfully, the protests paid off and cheerleaders were subsequently included in the bill. If every state had a bill like this, head trauma incidents might just decline.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Reckless Driving While Under the Influence Results in Three Vehicle Crash

Wrongful death comes calling in many different ways. In this instance, a wrong-way driver introduced the Grim Reaper to an innocent victim.

While you might like to think that every other driver on the road is alert and aware and takes great care and caution while driving a deadly vehicle, this is not always the case. In fact, far too often, the news is full of accident reports that list various injuries and deaths as a result of someone not paying attention, texting while driving, driving while drunk or driving recklessly. It does not take much to lose control of a car when you are drunk and/or high on drugs.

Consider the case of a high school teacher, fired from his position for drug use, out on a tear on the highway and driving in the wrong direction. As you might imagine, the end result of that lark, begun under the influence of drugs, resulted in a horrific head-on crash with two vehicles. It was not pretty.

The teacher was treated at the scene and taken to the hospital after he was arrested. EMS crews took the survivors for medical attention. Turns out, the police report detailed that the man was charged with DWI/DUI, criminal possession of a hypothermic needle and criminal possession of a controlled substance. The man was also found to have at least two prior convictions for drunk driving and drugs.

Would the estate of the victim, who did not make it out of that crash alive, have a wrongful death case? Most likely, yes, they would. There would be more than enough evidence to suggest to a jury that there was egregious behavior that cost someone his life. The police report alone would speak volumes about the driver’s state of mind and attitude the night of the crash. An Austin personal injury lawyer could use this report in court on behalf of a victim.

In a case like this, the criminal charges would need to be dealt with before a civil lawsuit may be filed. This would mean a possibly lengthy wait before the wrongful death suit could be launched. Additionally, in the unlikely instance that the driver was found not guilty of the charged offenses, they could still be tried in civil court, as a wrongful death suit is filed under the auspices of a statute and not the criminal code.

If you have been in a similar situation, call an experienced Austin personal injury lawyer and do not wait too long to do it. There is a Statute of Limitations for filing wrongful death actions and it would be wise to know what that is before you lose the right to sue.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

Do Politicians Even Understand What The Judiciary Does?

“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.

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/.

Trial Lawyers Doing Good

For the last decade, trial lawyers have been the victims of one of the most successful marketing campaigns ever. Those of us that choose to represent victims of others’ carelessness have been portrayed as sharks, snakes, or worse. It seems that “trial lawyer” is now close to a cuss word.

But trial lawyers do an amazing amount of good for the Country. Today’s National Law Journal has just such a story, describing how twenty Minn. law firms are banding together to provide pro bono representation to many of the victims of the 2007 Minneapolis bridge collapse. One firm (ironically a firm representing the defendants in one suit I have) has agreed to pay $1 million to an engineering firm to help investigate the collapse. All for free.

And this conduct isn’t unique. Following the 9/11 attacks on the World Trade Center, the American Trial Lawyer’s Association (now AAJ) founded Trial Lawyers Care, a non-profit designed to provide free legal services to the victims of the Sept. 11th terrorist attacks. The project, which was the largest pro bono project in the history of American jurisprudence, has expanded to other issues, such as trying to help victims of Hurricane Katrina.

But the good work goes on even at the local level. I think I’m fairly representative of the trial lawyers in Austin. Not only does my firm engage in significant pro bono efforts, but I serve on the boards of local non-profits, am an alumnus of Leadership Austin (class of 2006 — Best Class Ever), volunteer at an elementary school in East Austin, coach my kids’ youth sports teams, and am active in my church. And I’m not unique. You can find various trial lawyers in leadership positions all over Austin helping make this town better for all of us.

So the next time you hear someone throw out the phrase “trial lawyer” as an intended insult, I hope you’ll at least take a minute to appreciate that we do good work too.

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/.

Penn. Judges Bribed To Send Kids To Prison?

I’m not sure I’ve ever seen a more appalling story about the judicial system.

The Associated Press is reporting that two Pennsylvania judges have been charged with accepting millions of dollars in bribes to send teenagers to two privately run youth detention centers.  And for petty crimes too.  The story mentions one young girl sent to prison for lampooning her assistant principal on the girl’s MySpace page.

I’m not sure there’s anything I need to add.  Just unbelievable.

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/.

I’m Going Back To School

spu faculty badgeOver sixty percent of the lawyers in the U.S. practice in solo or small firms, but U.S. law schools don’t do anything to help students actually practice law. Sure, schools teach us the law and how to think like lawyers, but they don’t teach how to be lawyers. A lot of people in the legal community have griped about this, but few have done anything about it. Until now.

Susan Cartier Liebel has finally done something about it. Susan has a passion for helping lawyers open their own law firms. She has been a tireless advocate for solo lawyers by authoring one of the most popular legal blogs in the country, consulted with lawyers for years, and even taught a “how to practice law course” at the Quinnipiac University School of Law. But now she’s going a step further by establishing Solo Practice University.

Solo Practice University is a web-based “school” with faculty from around the country that will teach lawyers numerous practical aspects of how to run a law practice.  It will look at everything from administrative issues to instruction on specific practice areas that her students might be interested in. Although the doors don’t open until March, Solo Practice University is garnering a lot of buzz. For example, Solo Practice University was recently the subject of a profile in LawyersUSA magazine.

And I’m very happy that I’m doing my small part. I’m excited that Solo Practice University has asked me to teach a class on legal malpractice litigation. The class will focus on the basics of legal malpractice claims and how to prosecute and defend claims.  I don’t really know what the end product will look like because I hope to take a lot of direction from the students, but I am looking forward to getting started.

I’ll keep everyone posted as we get closer.

Brooks

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/.

What Martin Luther King, Jr Day Means To Lawyers

I wanted to write something as a tribute appropriate for this Martin Luther King, Jr. Day, but I was searching around for a something that inspired me, and I was coming up empty.  But then, a note in my inbox pointed me to a blog post from Kelly Erb at the Taxgirl blog.  Kelly put down thoughts better than I ever could so I’m going to excerpt her post here.  I do encourage everyone to read the full post.

From Kelly:

Later, I was preparing to write post about Martin Luther King, Jr. Day. I figured I’d just put up a copy of his famous “I Have A Dream” speech and call it a day. But as I researched, I found part of his autobiography which, I will confess, I have never read in full. And I saw something interesting: I knew that Dr. King had been arrested several times for various accusations, but I didn’t realize that he had been on trial for tax evasion.

Yep. On February 17, 1960, a warrant was issued for the arrest of civil rights leader Dr. Martin Luther King Jr. on charges of tax evasion. He was accused of allegedly falsifying his Alabama income tax returns for the years 1956 and 1958; he was the only person ever prosecuted under the state’s income tax perjury statute. It seemed like an inevitable victory for the government.

In his autobiography, Dr. King described the trial like this:

This case was tried before an all-white Southern jury. All of the State’s witnesses were white. The judge and the prosecutor were white. The courtroom was segregated. Passions were inflamed. Feelings ran high. The press and other communications media were hostile. Defeat seemed certain, and we in the freedom struggle braced ourselves for the inevitable. There were two men among us who persevered with the conviction that it was possible, in this context, to marshal facts and law and thus win vindication. These men were our lawyers-Negro lawyers from the North: William Ming of Chicago and Hubert Delaney from New York.

And something quite remarkable happened. On May 28, 1960, only after a few hours, Dr. King was acquitted by an all white jury in Montgomery, Alabama.

Dr. King said about his trial:

I am frank to confess that on this occasion I learned that truth and conviction in the hands of a skillful advocate could make what started out as a bigoted, prejudiced jury, choose the path of justice. I cannot help but wish in my heart that the same kind of skill and devotion which Bill Ming and Hubert Delaney accorded to me could be available to thousands of civil rights workers, to thousands of ordinary Negroes, who are every day facing prejudiced courtrooms.

And it dawned on me: no matter how many slick-haired, silver-tongued attorneys do their best to make a quick buck at the expense of the reputation of the profession, you can’t dispute that justice is attainable. And justice is good. And justice is important. And even if it is infrequent, it’s worth it when it happens.

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/.

A Good Lawyer, Chapter 5

Over the past couple of weeks, I have been looking at Stephen Comiskey’s book, A Good Lawyer. I’ve previously posted my favorite excerpts from Chapter 1, Chapter 2, Chapter 3 and Chapter 4. Today, I look at Chapter 5, which is available online. Again, the book is out of print, but I encourage all of us to try and find a copy and look it over from time to time as a refresher on how to practice.

Comiskey starts Chapter 5 off by saying that he thinks the Marine Corp’s 14 Leadership Traits and 11 Leadership Principles should apply to all of us. Those are as follows:

MARINE CORPS LEADERSHIP TRAITS

  • Integrity
  • Knowledge
  • Courage
  • Decisiveness
  • Dependability
  • Initiative
  • Tact
  • Justice
  • Enthusiasm
  • Bearing
  • Endurance
  • Unselfishness
  • Loyalty
  • Judgement

MARINE CORPS PRINCIPLES OF LEADERSHIP

  • Take Responsibility for Your Actions and the Actions of Your Marines.
  • Know Yourself and Seek Improvement.
  • Set the Example.
  • Develop Your Subordinates.
  • Ensure that an Order Is Understood, Then Supervise It and Carry It through to Completion.
  • Know Your Marines and Look After Their Welfare.
  • Keep Everyone Informed.
  • Set Goals You Can Reach.
  • Make Sound and Timely Decisions.
  • Know Your Job.
  • Train Your Unit as a Team.

Then Comiskey reverts back to the familiar numbered posts. My favorites are:

1. Protect your family.

2. Strive for excellence.

3. Excellence without arrogance.

4. Excellence with humility.

16. Be true to your word.

17. If it’s important, be shamelessly persistent. Be relentless.

18. Treat everyone the way you expect to be treated.

23. Know your weaknesses. Work hard to make them your strengths.

30. Keep your sense of humor. It will help sustain you through the hard times and it will help you enjoy the good times even more.

32. Take the time to enjoy the satisfaction and fulfillment of each of your successes large or small.

33. Where honesty and integrity are concerned, permit yourself no rationalizations. Be vigilant. Honesty and integrity are lost insidiously.

34. You can delegate authority, but not responsibility.

And that’s the final chapter. I’ve done these posts mainly for me — so that I can remember the wisdom of Comiskey and so I have the thoughts in an easy to access place. I hope they’ve been of some use to the rest of you out there.

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/.

A Good Lawyer, Ch. 4

A couple of weekends ago, I was prompted to go back and read Stephen Comiskey’s must read book “A Good Lawyer: Secrets Good Lawyers [and their clients] Already Know.” Last week I started a series looking at my favorite excerpts from each of the books. I’ve reviewed Chapter 1, Chapter 2, and Chapter 3. Today, I take a look at Chapter 4.

Chapter 4 is entitled “The Rules” and sets out what Comiskey thinks are key rules governing how we practice. As he states it:

As you read the good lawyers’ counsel in these pages, think of each of these good lawyers’ secrets as a guidepost located somewhere on a continuum from heavenly idealism to pedestrian pragmatism. The client is th reality check for the lawyer and, likewise, the lawyer for the client.

My favorite rules from Chapter 4 are:

3. Never underestimate your opponent.

6. On a weekly basis, review all your open matters to ensure that each one is being worked appropriately and that nothing has fallen through the cracks.

9. Ignore prospective clients’ assurances to you that the prospective defendants: “Will cave in as soon as they know there is a lawyer involved;” “Will settle because they can’t afford any bad publicity;” “Have always settled cases like this in the past;” and that the prospective clients have heard that similarly situated predecessors to them “Settled for a ‘bundle’ of money and never even had to file a lawsuit.” Suggest to those prospective clients that if any of that is actually true, then they should be hiring the lawyers who accomplished it, and not you.

13. If you decide not to take on a case after meeting with a prospective client, then either in person or by telephone: (1) tell them that you’re not going to be able to represent them; (2) tell them why you’ve come to that conclusion; (3) encourage them to meet with and to seek the opinions of other lawyers; and (4) remind them of the statute(s) of limitations that may be involved. Follow that conversation with a letter to them to the same effect. (Another key piece of advice from the legal malpractice lawyer’s perspective.)

15. As each case progresses, share with your client your decisions and your thought processes concerning the moral and ethical issues presented, in addition to the legal and factual ones.

21. Do not assume a settlement attitude.

22. An Oriental expression translates: Talk, Talk, Fight, Fight. To me that means, once the lawsuit has been filed, and especially when you are either discussing settlement, or negotiating settlement, keep the trial preparation pedal to the metal.

31. There is no need for exaggerated theatrics at depositions.

34. It’s hard for trial lawyers to empathize with judges, since most trial lawyers have never been judges. But as former trial lawyers, most judges recognize and appreciate good trial counsel and understand the conflicting demands made upon lawyers.

46. Leave it at the office.

47. Don’t join anything for possible client acquisition reasons, join — and participate — because you enjoy and support the activity.

59. Remember, no matter how honorable and meritorious your efforts may be for your clients, the practice of law is a business, not a charitable organization. Your family expects you to make enough money to maintain, if not improve, their standard of living. Don’t disappoint them.

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/.

Perlmutter & Schuelke, LLP 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

Website by SEO | Law Firm™, an Adviatech Company