Perlmutter & Schuelke, LLP » Litigation

What Is Mediation?

brooks — Tue, 16 Aug 2011 16:26:28 +0000

A mediation is a settlement conference led by a neutral third-party, the mediator. The mediator is often, but not always, a lawyer. In Texas, most courts require you to go through a mediation before you can get a trial in your case.

Generally, the mediation starts with an opening session where all the parties are present. In many cases, when the defendant has insurance, the defendant will not appear, but an insurance adjuster (who is really deciding the amounts to be offered) appears on the defendant’s behalf.

The mediator will start the opening session with his introductory remarks. Those remarks will describe the mediation process and will often include a discussion of some of the advantages of mediation. Depending on the mediator, the remarks may include statements similar to the following:

Mediation is your chance to have input on the resolution of the case without putting it into the hands of 12 (or 6) strangers.

A good settlement is one where both parties end up upset. That means the defendant paid more than it wanted, and the plaintiff accepted less than it wanted.

Don’t underestimate the emotional value of resolving the case. If you settle the case, then tomorrow can be the first morning in months (or years) that you wake up and don’t have to worry about this lawsuit.

After the mediator finishes his remarks, the parties will have an opportunity to make their statements. Generally, the plaintiff’s attorney will go first, and the defense lawyer second. Many times, these sessions become posturing sessions so, no matter what side you’re on, you will hear statements from the other side that will make you mad. When the parties start posturing, it seems to push the parties further away from resolution than towards it. Therefore, in our cases, we generally try to keep our remarks short and try not to make any unnecessary inflammatory remarks. Additionally, in many cases, we request that the mediator not even have the opening session in an effort to prevent this problem from occurring.

After the parties have made their statements, then the mediator will separate the parties into different rooms. The mediator then goes back and forth between rooms and engages in shuttle diplomacy. The first few sessions may involve more in-depth discussions about the case. The mediator may ask you to evaluate your strengths & weaknesses. He may play a devil’s advocate to push and probe to make sure you’re fairly evaluating the case.

In the later sessions, there is less discussion, and the mediator is often just going back and forth trading offers.

The mediation ends when a settlement is reached or when the parties reach an impasse.

A mediation is not an arbitration. A mediator doesn’t have the authority to force parties to settle a case or to decide a case. All decisions about settlement are left up to the parties. Having said that, some mediators will provide suggestions on what a good settlement number should be, but those suggestions are not binding on the parties.

One of the benefits of mediation is its confidentiality. It’s generally confidential in two ways. First, what is said in mediation can’t be used at trial. For example, if you’re trying to resolve a case and make some concession, the other side can’t argue at trial that you conceded that point at mediation. Second, the communications you make to the mediator are confidential. The mediators should not go tell the other side anything you said unless you authorize the mediator to do so. The confidentiality isn’t 100%. There are some rarely-applicable exceptions, and some mediators don’t seem to treat their duty of confidentiality as seriously as others.

There are some rules we typically give our clients about mediation.

Bring something to read or do. A lot of the mediation will be spent with the mediator visiting with the other party. You will want something to do during this time or the time will pass slowly.
Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
Be prepared to be tired. Mediation is an emotionally draining process. At the end of the day, you will be tired even though you will have spent the entire day just sitting around.

If you want additional resources to understand the process, you may read the following (but remember that their information isn’t specific to Texas so the processes described may be a little different):

Conference Seeks To Reduce Number Of Trucking Accidents and Bus Wrecks

brooks — Mon, 06 Jun 2011 13:41:10 +0000

Recently, the National Transportation Safety Board convened a two day meeting of federal regulators, safety experts, and the truck and bus industries to try and tackle the often deadly problem of trucking accidents and bus wrecks. The conference was to examine what is being done to prevent deadly accidents and why past safety recommendations haven’t been enacted. Some of these recommendations have been pending for decades, including a 1968 recommendation that buses come with seat belts, which wasn’t enacted until last year.

Ironically, the number of fatal trucking accidents has decreased slightly in the last few years, but most experts attribute that to fewer trucks and buses being on the road in the weakened economy. Experts fear that as the economy recovers, the number of trucking wreck and bus accident fatalities will climb.

One of the most important areas sought to be improved by the Obama Administration is the area of driver fatigue. As much as one-third of all commercial motor vehicle crashes are due to fatigue according to the NTSB. There are already limits on the number of hours that truckers and bus drivers can drive, but the Obama Administration is seeking to decrease those hours a little more.

But the limits on hours driven is meaningless if it can’t be enforced. Currently, drivers are required to maintain log books that set out their hours behind the wheel. Unfortunately, we’ve seen too many cases where those log books were fudged or the driver maintained two sets of log books to allow them to “beat” the regulation. Another proposal from the Obama Administration would require equipping buses and trucks with devices that would record how many hours drivers were behind the wheel.

The Administration also wants trucks and buses to have some of the same safety technology that buses and trucks use in other countries. For example, buses and trucks could have electronic stability control (which helps prevent rollovers), warning systems to alert drivers they’re drifting in lanes, and warning systems that alert drivers to impending collisions.

It’s too early to know what will come of the summit, but we hope improvements are made.

If You Have A Personal Injury Claim, You Should Hire A Lawyer Now

brooks — Tue, 01 Mar 2011 21:45:50 +0000

I always encourage accident victims to talk to personal injury lawyers as soon as possible to make sure that their rights are protected, but it’s even more important now.

As you may know, the Texas legislature is in session. What you probably don’t know is that yesterday was the Texans For Lawsuit Reform’s lobby day where they unleashed their traditional platform of ways that they want to limit your rights.

I don’t know what’s going to happen with any of this legislation, but rest assured that none of it will likely help personal injury victims (with the exception of their proposal to stop barratry — solicitation of personal injury clients by unscrupulous lawyers). There’s also no telling when any of these attempted reforms will go into effect. In the past, tort reform litigation has gone into effect at different times — some go into effect immediately upon signing by the governor and some have gone into effect only at some later date.

Regardless, personal injury victims should start talking to potential lawyers as soon as they can. You want to make sure that you and your lawyer have enough time to investigate claims so that any lawsuits can be filed before any new tort reform laws go into effect.

A Law School Professor Explains Why You Need A Personal Injury Lawyer

brooks — Fri, 05 Nov 2010 15:08:41 +0000

This week, Jay Feinman, a Distinguished Professor of Law at Rutgers University, was a guest blogger at the TortsProf blog (one of my favorites, and not just because friend and fellow UT alum Bill Childs is one of the authors). In his guest post, Professor Feinman explained one of the shifts in the insurance industry that helps explain why personal injury victims need lawyers:

All of these ideas are based on the assumption that insurance works — that companies assess risks, insureds purchase policies against those risks, and the companies pay claims that are within coverage. Unfortunately, the facts about insurance are increasingly at odds with this assumption. Most companies pay out claims most of the time, of course. But more and more, insurance companies deny valid claims in whole or in part and force policyholders and tort victims to litigation to obtain the benefits to which they are entitled.

The economics of insurance creates this potential for opportunism. Every dollar a company does not pay out in claims is a dollar it keeps in profit. Outright denials, reduction of the amounts paid, and using litigation to diminish and deter claims potentially provides a greater benefit to a company than it loses in disappointed customers and negative reputational effect.

Insurance companies have always been subject to these temptations. Since the early 1990s, however, the strategy has become more systematic and institutionalized across auto, homeowners, and disability insurance and extended even to commercial lines.

****

The claims department has become a profit-center rather than solely the place that honors the company’s promise to pay what it owes, no more but no less.

Professor Feinman’s statements echo what I’ve been preaching on this blog and website for quite some time. When I started practicing a number of years ago, attorneys and adjusters would work together to exchange information and come up with a fair value of the claim. Some of the time it didn’t work and suit had to be filed, but most of the time, it worked.

That’s no longer the case. In many cases, trying to settle a case pre-suit is a waste of time and effort. We are having to file more and more cases and push those cases harder before the insurance companies come to the table with reasonable offer. Sadly, the real victims are the personal injury victims. They not only have to wait longer, but requiring litigation makes the cases much more expensive to pursue, and those expenses come directly out of our clients’ pockets.

Can The Texas Supreme Court Still Hear Cases?

sbrennan — Mon, 08 Jun 2009 20:36:35 +0000

This morning, the U.S. Supreme Court released Caperton v. A.T. Massey Coal Company. The case involves facts that are almost too extreme to believe. Massey was appealing a multi-million judgment and decided to help its chances at the West Virginia Supreme Court by spending approximately $3 million to help elect a new supreme court justice. After the court, with the new supreme court justice, threw out the award, the plaintiff appealed, arguing that it was deprived of its right to trial.

In the ruling, the Supreme Court agreed with the plaintiff and held that courts shouldn’t rule on cases involving large donors. Unfortunately, the opinion doesn’t provide much more guidance than that. So what does that mean for Texas? Texas has judicial elections, and most campaign contributions come from those with cases before the Court. A Texans for Public Justice study concluded that in the last Supreme Court election, the candidates received more than 65% of their contributions from those with business before the Court. And it wasn’t just a Republican or a Democratic issue, both sides were equally guilty.

So where do we go? Do we see a lot more motions to recuse or will the decision provide the impetus needed to those that support abolishing judicial elections.

It’s hard to know until the dust settles. Once the decision and its lower cases interpreting it are fleshed out, there might not be any change at all. On the other hand, it might make all the difference in the world. It will at least be interesting to watch as it plays out.

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/.

Might The Days Of Mandatory Arbitration Be Done?

sbrennan — Fri, 08 May 2009 20:44:26 +0000

It’s no secret that I’m not a fan of mandatory, pre-dispute arbitration. In fact, I’ve probably written on it more than anything else. Now, maybe the griping from me and others has done some good.

A Los Angeles Times story was out earlier in the week detailing the problems with pre-dispute arbitration and noting that there is finally a chance that something may be done to help consumer. The column noted:

Consumer advocates, sensing a shift in the political winds under President Obama, believe the time is right to challenge mandatory arbitration and have banded together to support legislation ending the practice.

We have no problem with arbitration,” said David Arkush of the watchdog group Public Citizen. “We just want people to be able to choose it if they want it, rather than having it be required.”

The article also noted that the public’s acceptance of arbitration might be changing. It noted that when the details of mandatory, pre-dispute arbitration are explained to people, 59% of Americans say they oppose it.

I’m glad to finally see the issue discussed in the popular press and to see that the tide may be turning. While I think there are many cases where arbitration is appropriate, I think consumers deserve the right to fully understand the agreement before signing it; they deserve to know the costs of arbitration, that they may be giving up their rights to conduct discovery, and the pros and cons of arbitration before they’re forced to agree to it. In today’s setting, consumers don’t get that. Businesses get pre-transaction lawyers to explain the arbitration agreements and to draft the agreements for the businesses. But there isn’t any protection or explanation for the consumer.

I think the author summed up my concerns nicely:

Seems to me that if arbitration is indeed fair to everyone, it shouldn’t have to be crammed down consumers’ throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.

By the same token, no company should be permitted to deny customers their right to a jury trial or to participate in class-action lawsuits.

In a perfect world, such things wouldn’t be necessary.

Who Knew We Were Responsible For Pirates?

sbrennan — Wed, 15 Apr 2009 20:46:56 +0000

As trial lawyers, we’ve been blamed for a lot of stuff over the last ten years, but today brought a new one. Today, conservative columnist Jonah Goldberg wrote an editorial blaming the “pirate problem” on lawyers. But not just any type of lawyers. Goldberg would never miss the chance to slam us, trial lawyers. Goldberg writes:

And that raises the primary reason this all seemed so complicated. Lawyers. Layers and layers of lawyers. Bret Stephens asked in a prescient Wall Street Journal essay last November, “Why Don’t We Hang Pirates Anymore?” And the answer, he discovered, is that “there is no controlling legal authority.” A combination of international and domestic law has made dealing with what Cicero dubbed “hostis humani generis” — enemies of the human race — just too darn complicated.

Add to this the fact that trial lawyers, bureaucrats and accountants for too long have conspired with corporate honchos to make paying ransoms the least costly option. Shipping companies don’t want their crews armed to defend themselves.

It’s almost comical, except Goldberg seems serious about it. But I guess he didn’t really consider the facts before testing out his theory. According to Goldberg himself, there has now been one American flagged ship and crew taken by pirates in the last 200 years. And that band of pirates was “taken care of”. That doesn’t sound like a “pirate problem” to me. That sounds like an isolated incident.

Now, I’ll admit that overall a pirate problem exists. Pirates are taking ships at an alarming rate. But they’re not American vessels. And I don’t think even Goldberg would claim that American trial lawyers are responsible for attacks on foreign ships. But he conveniently leaves all this out. It’s much easier (and much more fun) to take another cheap shot at trial lawyers.

Twitter, Facebook and Google! Oh My! Jurors, Please Follow Instructions.

sbrennan — Thu, 19 Mar 2009 20:56:13 +0000

A numb er of years ago, while I was in law school, I received a call from my mom, and she started asking me about the elements of a criminal assault case in Texas. I don’t know about all of you, but this was not the question I expected from my mom. I asked her why she wanted to know, and she replied, “I have jury duty, and we’re trying to decide whether to convict the defendant.”

“Didn’t you get an instruction not to talk to anyone about the case?” I asked. “Yeah,” she replied, “but I didn’t think that applied to you.”

And that’s how it goes. Despite judges’ best attempts to instruct jurors not to look to evidence outside the case, jurors have always found a way to do it. But now, with the internet and smart phones, it seems that ignoring judicial instructions is becoming too easy. Yesterday’s New York Times discussed the trend of “Google mistrials” that are sweeping the nation, creating a firestorm in the last two weeks.

Last week, a mistrial was granted during the middle of an eight week federal drug trial in Florida after nine of the twelve jurors admitted to using the internet to do research on the case. Also last week, a defendant in a lawsuit said it plans to appeal a $12.6 million verdict rendered against it after a juror used Twitter to send updates during the trial. And this week, defense lawyers for former Pennsylvania state senator Vincent Fumo asked that a guilty verdict be thrown out after one of the jurors in that case used Twitter and Facebook to send updates.

So the question is, “where do we go from here?” In my opinion, there are two separate issues. The jurors using Twittering and the Facebook don’t really concern me that much. In most cases, we’re talking about 6 or 12 jurors on the eventual jury. It shouldn’t be difficult for the court or the lawyers involved with cases to monitor the Facebook or Twitter pages of 6-12 people during the course of the trial. And I suspect that if the judge gives the jurors an instruction not to use Facebook or Twitter and also tells the jurors that court personnel will be monitoring their accounts to make sure the jurors are following the instruction, that the number of posts or tweets will drop off dramatically. Now, there might be some jurors with anonymous accounts that are hard to find, but I think those would be a very small minority.

The bigger concern for me is the potential for jurors to perform internet research. There’s just no way to police jurors and stop internet research. I think the best judges can do is to instruct the jurors about the problems and then just hope for the best.

On the other side of the ball, the lawyers involved have to know that the jurors could potentially be researching the case via Google. That probably means we’ll have to have some other considerations in the way we try the cases. I’m not sure what form that would take, but at a minimum, we need to have staff members perform popular searches about the parties and the case so that at least we know what’s available to the prospective jurors.

Anyone else have thoughts on these matters? I’d love to see the thoughts as a comment or you can send them to me on Twitter (@bschuelke).

Cornyn: Pot Meet Kettle (Or How Should Texas Select Judges)

sbrennan — Fri, 06 Mar 2009 20:57:40 +0000

“A judge’s job is to apply the law and, in the absence of a jury, to decide the facts of the case. This job description should not include advancing a personal or partisan agenda from the bench. When a judge brings a personal agenda or partisan commitments to the bench, the rule of law suffers, and invariably public confidence in our system of justice is undermined.”

That’s a great quote; one that you might expect from a constitutional law scholar or something. But you wouldn’t expect it from a former judge who was a prime example of putting a partisan agenda before the law. And yet, that’s exactly what Senator John Cornyn did this week in a commentary he wrote for Texas Lawyer magazine. (I guess I shouldn’t be surprised, this is the same guy that wants to use Texas, the state with the highest rate of uninsured in the country, as a model for the nation on healthcare.)

Perhaps forgetting (or hoping to ignore) his record as a judge, Cornyn addresses judicial selection, a hot topic in Texas. Texas is one of the few states that allows election of judges by political party, and some are questioning whether that should be changed. And the criticism comes from both sides. On the consumer side, groups such as Texas Watch have been calling for reform for years, and now, after Democrats swept through the courts in Dallas County and appear to be heading the same way in Harris County, Republicans are jumping on the bandwagon too. In his “State of the Judiciary” speech, Judge Wallace Jefferson spent a lot of time talking about the problems with partisan elections, even though some say Jefferson’s Texas Supreme Court exemplifies the biggest problems with the judiciary.

While many of us agree that partisan elections are bad, there is a lot of disagreement over the best alternative. Right now, the darling of the politicos is the prospect of merit selection where the governor appoints a judge and then the judge faces retention elections later.

I say, “no thanks.” We don’t need judges beholden to the governor or any other branch of the government. Incumbents already win an extraordinary high percentage of the time. We don’t need a governor (of any party) picking judges that are hard to oust.

What do I think we should do? I suggest non-partisan elections. Get the “R” and the “D” off the ballot, and let people make decisions based on merit. I’ll talk about the reasons why I like this over the next few days.

An Unusual Criminal Proceeding With A Question About Eye Witness Testimony

sbrennan — Fri, 06 Feb 2009 16:27:43 +0000

We have a weird criminal proceeding occurring here in Travis County. In 1986, 26 year old Timothy Cole was convicted of rape by a Lubbock County jury and sentenced to 25 years in prison. Cole maintained his innocence throughout the trial. In 1995, another prisoner confessed to the crime, but no one really took notice until 1999, when Cole died in prison. At that time, the state called the victim and informed her that Cole had died from complications from asthma. She told the officials she was surprised because her attacker was smoking throughout the attack. And yet nothing happened.

In 2007, authorities finally began listening to Jerry Wayne Johnson, the inmate that had confessed to the crime, and last year DNA testing, under the guidance of Barry Scheck’s Innocence Project, confirmed that Johnson was the attacker. While the DNA test was satisfying, Cole’s family wanted his name cleared. Unfortunately, Lubbock County refused to do anything about it so in stepped Travis County District Judge Charlie Baird.

Judge Baird is one of the more progressive judges we have. For example, Judge Baird has personally recruited businesses asking them to help give criminal defendants better jobs. He’s also set up a parenting program that offers Saturday parenting classes to some of his probationers, even going the extra step of paying for the program out of campaign funds and attending the weekend sessions with the participants. (To read more about him, you can check out articles from the Austin Chronicle and the Austin American Statesman.)

Judge Baird is conducting a two day hearing to clear Cole’s name. Judge Baird contends that the Texas Constitution requires courts to remedy a wrong they have caused (for a different viewpoint, see Paul Kennedy’s post “Is Innocence a Bar to Execution?”). At the end of the hearing today, Timothy Cole is likely to become the first Texan to be posthumously cleared of a crime.

But it also struck me that Cole’s conviction is a great example of the dangers of eyewitness testimony. Cole was convicted primarily on the identification of the victim, who picked Cole out of a “lineup” (I use that term loosely; she was apparently given a color photo of Cole and black and white photos of other potential perpetrators.).

For years, experts have been concerned about the reliability of eye witnesses (a famous study on the issue that looked at eye witnesses’ reliability in recall information regarding car wrecks was published way back in 1978). And during yesterday’s hearing, attorneys from the Innocence Project called as an expert witness, Mike Ware, a Dallas County prosecutor. As you may know, Dallas County has seen 19 people exonerated through DNA testing in the last couple of years, and Ware said that all but one of those cases involved a mistaken identification.

It’s known that eye-witness testimony is a problem, and yet it still remains the holy grail in the courtroom. What are we as lawyers supposed to do about that? I don’t really have any answers, just a lot of questions.