May I Fire My Texas Personal Injury Lawyer?

firedWe frequently get contacted by injured persons wanting to know if they can fire their personal injury lawyer.

The short answer is “yes, you can fire your personal injury lawyer even if you’re paying a contingent fee”, but you still may end up paying the first lawyer.  Let me explain.

Texas contingent fees are governed by a 1969 Supreme Court case of Mandell & Wright v. Thomas.    In that case, the Court stated that when a client fires a lawyer who is working on a contingent fee without having good cause, then the lawyer can still recover the full contractual fee.

This means that if you have hired a lawyer and agreed to pay him 40% contingent fee, decide to fire the first lawyer and hire a second lawyer on an identical 40% contingent fee, then you could be paying 80% of your claim for attorneys’ fees.  So yes, you can fire your lawyer, but if you’re not careful, you could end up paying for that decision.

Having said that, these issues can usually be worked out.  When you call us and ask us about firing your current personal injury lawyers, the first advice is almost always to schedule an appointment with the prior lawyer, sit down face to face, and see if you can’t work through your differences.  In many cases, disputes are often just a misunderstanding, and communication between you and the lawyer can help both of you move forward.

I realize that can’t work in all cases.  For a variety of reasons, you might not be able to work with your current lawyer.

In most cases, if you simply can’t work with your prior lawyer, then we can try to work something out with the prior lawyer so that you’re not being charged two fees.   Sometimes, the prior lawyer may agree to give up his rights to the fee and expenses.  Sometimes, the prior lawyer may agree that he won’t collect a fee, but he would like to be reimbursed for his out-of-pocket expenses incurred in your case.  And in other cases, we will work something out with the prior lawyer to share the fee so that you are only charged one fee.  The particular circumstances in your case will dictate what agreement can likely be reached.

However, there are times when we’ll talk to your prior lawyer, and we can’t work out any agreement.  Those instances are difficult.  Depending on the circumstances, we may advise you take various steps, including investigating whether you might want to file a fee dispute with the Austin Bar Association Fee Dispute Committee.  Regardless, if we can’t work something out with your prior attorney, we will typically not take your case until that issue is resolved because we don’t want to be part of a matter where you might be paying two fees.
So long and short, yes you can fire your personal injury lawyer, but the best way to do it is to do it as amicably as possible to minimize the risk that you might have to pay extra attorneys’ fees.

Posted on: November 19, 2014 | Tagged

What Are Symptoms Of A Concussion Or Brain Injury?

I often tell clients that they need to be on the lookout for brain injuries.   For some head injuries, the problems are obvious.  But in many cases, the problems are much more subtle.  As a result, many concussions or brain injuries go undiagnosed because a doctor doesn’t know you well and doesn’t see the symptoms.  Because of this, it’s important for you or your spouse or other family members to look for symptoms so you can convey that information to doctors.

Working on a case, I stumbled across this symptom chart from the Centers for Disease Controls that will help you identify potential brain injuries.  Hopefully, this will help you recognize problems so you can get the treatment and care you need.

Symptoms of concussion

Brett Favre’s Admissions Shed Light On Traumatic Brain Injuries

In an interview this week, retired NFL quarterback (and all around tough guy) Brett Favre discussed memory loss issues he’s been having since retirement.  Favre attributes these issues to potential brain injuries he suffered as a player.

Favre isn’t alone in these types of symptoms.  We’ve had the pleasure of representing a number of clients who have suffered from brain injuries.  Sadly, memory loss is a popular symptom.

I’ve said it before, and I’ll say it again, the concussion issues arising in the NFL and in the military are terrible.  But they may be the best thing to happen to traumatic brain injury patients.  These stories have put a light on the issues of concussions and brain injuries, and they’re also sparking research that might help my clients and others as they seek to return to normal lives.

PERSONAL INJURY: Make The Most Of Your Doctor’s Appointments

For whatever reason, people get intimidated when going to doctor’s offices and they forget to tell their doctors about all of their issues, they’re unwilling to ask follow-up questions, or they’re flustered and forget what the doctor says.  This is a threat to your health, but if you’re a personal injury victim, it also has a big affect on the value of your case.

Here are some tips to help avoid these problems.

• Identify your symptoms. If you’re feeling ill, spend some time documenting the problem in specific terms: what hurts, how much, how long you’ve felt sick, anything that might have contributed to it, and so forth. This will help your doctor make a diagnosis more efficiently.

• Bring your medical history. On your smartphone, or just a piece of paper, keep track of such health-related items as previous illnesses, vaccinations, accidents, and allergies, as well as your family’s medical history as far back as you can go. All of this gives doctors a better context for determining your condition.

• List medications. List all the medicines, vitamins, and supplements you take on a regular basis. Your doctor will need the information in case any of them might be causing unexpected side effects, and to avoid interactions if he or she prescribes any new medications for your condition.

• Prepare questions. Don’t rely on your memory alone. Write down questions as they occur to you before the appointment so you don’t forget any relevant details while talking with your doctor.

• Take notes. Again, you’re better off writing down what your doctor says so nothing slips your mind later. Ask for a printed list of instructions to ensure you’re interpreting his or her advice correctly.

 

Brain Injury Basics: What Is Cognitive Rehab?

Cognitive problems are the most common lingering symptoms of those who have made a good recovery from a traumatic brain injury.  Fortunately, cognitive rehabilitation can at least help reduce some of these problems.

Cognitive rehabilitation is training for the brain and for the victim of a brain injury.  Depending on the extent of your brain injury, cognitive rehab can help repair your brain’s neurological connections so that you can function at a higher level, or it can train you how to function with your limitations.

Some cognitive rehabilitation processes focus on retraining your entire brain.  In these, you might undergo repeated exercises doing the same thing over and over.  While these are necessarily repetitive, they are designed to reorganize your brain’s “wiring” so that the brain is more functional across a number of different areas.

Some cognitive rehab processes focus only on certain skills that are giving you problems.  For example, if your brain injury causes you problems with drinking out of  cup, you will undergo specific training to help you re-learn how to use a cup.  Alternatively, if it is too difficult to re-learn how to use a cup, you might be trained in alternatives, such as easily using a straw.

Because attention deficit and memory issues are the two most common symptoms of brain injuries, there are a number of different cognitive therapy procedures that can be used to help you improve in these areas.  In a typical situation, you would undergo exercises designed to re-train your brain, as described earlier.  You might also receive training in how to use memory strategies, such as mnemonic training (mnemonic’s are learning/memory aids — such as the old Roy G Biv we all learned to remember that Red, Orange, Yellow, Green, Blue, Indigo and Violet were the colors of the rainbow). You would receive training to teach you how to create and use these type of memory aids in a number of different areas of your life.   Memory training might also include learning how to use external cues — things that are designed to remind you of other tasks — or learning how to use a “memory notebook” — to journal things you are supposed to remember in the future.

Fortunately, studies have shown that a holistic approach that incorporates a number of different types of cognitive rehab processes can help you improve on your brain function, though most studies show that even with the best cognitive rehabilitation, victims of traumatic brain injuries still show problems.

Unfortunately, cognitive rehabilitation is very expensive.  In a 2009 letter to the United States Congressional Budget Office officials, the president of the Brain Injury Association of America estimated that the average cost of cognitive rehabilitation was $27,000.00.

If you want to learn more about cognitive rehab, additional resources are available:

 

 

Brain Injury Basics: Brain Injuries In Children

Brain injuries are devastating in children.

Today, traumatic brain injuries remain the leading cause of both death in children.

For those children lucky enough to survive, an early brain injury can have life-long consequences.  Brain injuries often affect a child’s ability to learn even years after the injury.   Young victims are particularly vulnerable because most brain development occurs between the ages of 1 and 5.  Even as children get older, studies still suggest that the younger they are at the time of injury, the more serious problems they will face.

And even when a child has a satisfactory or normal IQ levels, emotional problems caused by the head injury set them back.  One study found that 19 of 22 children with  brain injuries showed long-term emotional issues.

These problems have a real economic value.  One study found that only 27 percent of kids who sustained brain injuries were working full-time by the time they reached age 21.

Unfortunately, auto accidents are the leading cause of brain injury-related deaths in children.  Proper use of seat belts and car seats can really help minimize these risks.

Falls still account for most brain injuries in children, including falling down stairs, falling off of playground equipment, and falling out windows.  Parents can help reduce the risk for these types of injuries by child-proofing the house and making sure that playgrounds are protected by twelve inches of soft surface material (such as mulch, gravel,  etc.)

Bicycle accidents also account for thousands of brain injuries per year.  Parents can reduce the risk of bicycle-related brain injuries by teaching their children bicycle safety and making sure that children are properly using bicycle helmets.

 

 

Brain Injury Basics: Causes of Brain Injuries

A common argument that we hear from insurance companies is that our client’s brain injury couldn’t have been caused by the accident because the client’s head didn’t hit anything.  That is a fallacy.    It is true that most head injuries are caused by a trauma to the head.  For example, in a car wreck, the victim’s head may hit the window, the steering wheel or the dash board.  However, there are a number of other common situations that lead to brain injuries where there aren’t any direct blows to the head.  Some of those are listed below.

1.  Forces applied to the brain.   You don’t have to hit your head to apply forces to the brain.  When your head moves rapidly, your brain moves inside your skull and impacts the brain.  These forces, slamming your brain around in your skull, are often hard enough to cause brain injuries.  For example, one study found that in car wrecks of 35 miles per hour, 27% of drivers and 21% of passengers who were wearing seat belts were at high risk of head injury even when their head didn’t contact anything on the interior of the car.

This risk is often made worse because multiple impacts occur.  Studies have repeatedly shown that repeated brain injuries have a cumulative effect on people, and in high impact accidents, there are often multiple injuries.  For example, in a simple rear-end case, upon impact, the head is immediately thrown forward, causing the brain to hit the front of the skull.  And then the head whips back, causing a second impact with the back of the skull.  With more complications, such as impacts with other cars or quick stops, there are additional opportunities for more impacts and more injuries, all occurring without the head ever hitting anything on the interior of the car.

Even hearing the above description, some may discount the non-impact cause of head injuries.  But remind them of shaken-baby syndrome.  Countless children are harmed or even killed from head injuries suffered by shaking — and they all occur without any impact.

2. Blast Injuries.  One legacy of the Iraq war is that we are learning more and more that people around explosions can suffer severe brain injuries without any type of impact on the head.  These same type of injuries are often found in construction-site accidents or in various types of manufacturing plant accidents.

3.  Lack of Oxygen.  Brain injuries are also often caused by anoxia, or lack of oxygen to the brain.  These types of injuries often occur in near-drowning cases, but they also arise in other situations.

4.  Loss of Blood.  An injured person who loses a lot of blood may also develop a brain injury even though the head never impacted anything during the actual accident.

5.  Electrical Injuries.   Many doctors miss this, but any type of electrical injury can potentially cause a brain injury in a person.

Just because you or a loved one doesn’t have an impact on your head, don’t dismiss the possibility of a brain injury.  Recognizing the brain injury and getting prompt treatment can make a difference in your outcome.

Brain Injury Basics: Symptoms of Brain Injuries

If you think you or a loved one has sustained a head injury, it’s critical to know potential symptoms of brain injuries.

Knowing the symptoms can help you understand when a brain injury is possible so that you know to speak to your doctor about it.  A 2003 Centers For Disease Control report to Congress noted that in many instances, persons with mild traumatic brain injuries fail to timely seek medical care because they don’t recognize their symptoms. Even worse, the report notes that once care is sought, many medical providers still fail to diagnose the head injury or recognize the severity of the brain injury.  Knowing the symptoms of brain injury and looking for them in yourself or your spouse can help make sure a diagnoses is made as soon as possible.

Knowing the symptoms can also help you understand what you or your loved one is going through.  Often, a spouse or loved one will become frustrated with the way injured person’s conduct.  In those situations, it’s important to understand the symptoms of brain injuries and to know that the injured isn’t choosing to act that way.  Instead, the injured has a serious condition with serious consequences and needs to get medical care.

There are literally thousands of potential symptoms of head injuries.  If you come to our office with a potential head injury, you will be given a form that asks you about the following symptoms, which we commonly see in brain injury cases:

  • Headaches
  • Feelings of dizziness
  • Nausea and/or vomiting
  • Noise sensitivity (easily upset by loud noise)
  • Sleep disturbance
  • Fatigue/tiring more easily
  • Irritability
  • Feeling depressed or tearful
  • Feeling frustrated or impatient
  • Forgetfulness/poor memory
  • Poor concentration
  • Processing issues/taking longer to think
  • Blurred vision
  • Light sensitivity
  • Double vision
  • Restlessness
  • Reading problems
  • Writing problems (writing letters out of order, etc.)
  • Word recall/inability to remember words, names or numbers

If you have a head injury, you’re not likely to have all of these symptoms.  Most people only have 2-3, and many only have one.  What is important is to know the symptoms and look out for them following a wreck or other event.

Doctors had long thought that in cases of mild injuries these symptoms would slowly disappear as the brain heals.  But new research is beginning to reveal that even mild brain injuries can have permanent damage and be related to long-lasting symptoms.  For example, in the summer of 2012, a new study of brain injured veterans (and sadly, our veterans are now suffering too many brain injuries) found that symptoms of post-concussion syndrome can last for years.   This and other studies are confirming what we see in our practice — even the most “minor” brain injuries can last a life-time.

 

 

Brain Injury Basics — New Series

Over the years, we’ve been fortunate to help a number of clients who have suffered brain injuries in various types of accidents.  After speaking to some recent clients, one of their biggest frustrations is that it’s difficult to find easy to understand information about brain injuries, brain injury treatment, and brain injury prognosis.  As a result, we’ve spent a good amount of time trying to help them find accurate, easy-to-understand information.

Over the next few weeks, I’ll be writing a series of blog posts that try to give some basic information.

Keep in mind, this isn’t medical advice, and patients with brain injuries, more than anyone else, should get the help they need as quick as they can.  But I maintain that people who know more about their condition and their case, make better decisions and get better results.

I also think the information is particularly important in head injury cases.  Sometimes doctors are slow to diagnose head injuries because the doctors don’t know you well enough to compare your condition after the wreck to your condition before the wreck.  Therefore, it’s important for you, your friends and family members to know the symptoms of head injuries and potential causes of head injuries to help with the diagnosis process.

Toddler run over by truck does not survive

When an emergency call goes out for help involving a child, the crews know it will be a tough call.

This story had one of the worst endings possible, the death of a toddler. A three-year-old boy was run over by a truck backing up through a parking lot. For some reason, like most small children do, the boy bolted away from his mother and ran off. A short time later, a truck ran him over. Although the boy was only pinned under the truck for a short period of time, it was enough for him to sustain life-threatening injuries. He died at the hospital later that day.

Stories like this bring home the very real safety issues that we all need to be concerned about. Small children simply do not understand why they can’t run free in places like parking lots, and drivers in those lots, and other locations need to be on constant alert to avoid accidents like this one. Drivers need to be even more cautious during holiday seasons, as there are far too many distractions for everyone.

Although many people condemn the use of child leashes as being inhumane and humiliating, a restraint such as that would have saved this boy’s life. Perhaps the most important thing to consider in keeping a child safe is not what looks odd or punitive, but what will keep them alive when they are out in dangerous situations, even if they are with a parent.

Being with his mother in the parking lot did not help this three-year-old, and once he had broken free from his mother, there was no way she could catch up to him before the accident. It’s a devastating blow to watch a child get run over, not only for the parents, but for the driver that struck the boy.

In this instance, there will be more questions to answer before the police get a clear picture of how this misfortune happened. For instance, was the driver under the influence of drugs or alcohol? Was the driver texting while driving? Or otherwise distracted and not paying attention? Not to mention the biggest question of why was the truck driving backwards through a crowded parking lot? It is not clear whether charges will be laid, but should law enforcement discover the truck driver could have avoided the accident, but for a negligent action, there may be charges pending.

In a wrongful death case such as this, parents may wish to speak with an Austin injury lawyer. They need to know what their rights are and how to move forward with a lawsuit seeking compensation for the sudden death of their loved one. Avoid dealing directly with insurance companies, as their main goal is to settle quickly and cheaply. They do not consider the agony of the parents. They are more interested in their fiscal bottom line. Take any questions about personal injury accidents to an Austin injury lawyer, particularly if you want justice.

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

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

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