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

Catholic Church Faces Wrongful Death Lawsuit in Drug Overdose Case

The family of a drug overdose victim has filed a wrongful death lawsuit against an archdiocese of the Catholic Church.

Wrongful death lawsuit legislation differs from state to state, but the basis of that legislation is the same no matter where the suit is filed. While the details of this case are particularly relevant to the McIlmail family in Philadelphia, stories like this can come from anywhere in the U.S., including Texas.
Families and loved ones sue to obtain compensation for a loss when that loss occurred due to the negligence of others. The plaintiffs also send a message to the perpetrators and to the public: what happened to their loved one should never happen to anyone else.

In October 2013, Sean McIImail, 26, died of an accidental drug overdose. After suffering alleged sexual abuse at Father Robert Brennan’s hands as a preteen, McIlmail struggled with substance abuse and addiction for years.

To memorialize his death and to make her own message clear to all, Sean’s mother has filed a statement of claim in the Philadelphia Common Pleas Court. She alleges that the Roman Catholic Archdiocese of Philadelphia turned a deaf ear to her sexual abuse complaints against Brennan. Allegedly, more than 20 other families also attempted to bring the matter to light, each to no avail.

The current lawsuit names not only Brennan, now 75, but also 62-year-old Monseigneur William Lynn, the man once responsible for investigating molestation complaints filed against priests. Msgr. Lynn ran run afoul of the law on a separate occasion, and he is currently serving out a prison term of three to six years for child endangerment. At Lynn’s trial, it was alleged that he actively transferred Brennan to multiple parishes, where Brennan then sexually abused preteen boys.

The McIImail lawsuit is not the only suit on the record against the Archdiocese. It is the third to highlight allegations of child sexual abuse by Brennan. Grand jury records from 2005 show his name figuring prominently in reports of child molestation in the Archdiocese of Philadelphia beginning in 1988. Charges were never laid, as the reported cases were too old to pursue. Brennan was ordered to step down from his duties and chose to retire.

Twelve years after the alleged abuse, Sean McIlmail chose to come forward and accuse Brennan in court. In September 2013, the District Attorney’s office filed multiple rape and sex-abuse charges against Brennan for allegedly abusing McIlmail, beginning in 1998 when he was an 11-year-old altar boy and lasting until he was 14. But after McIlmail’s death, the criminal charges had to be dropped.

McIImail’s death terminated the criminal case, but not wishing to let the matter rest, the family chose to file a civil wrongful death lawsuit.

Wrongful death lawsuits are never easy for the survivors of a catastrophic loss. However, a civil lawsuit makes their voices heard. It often allows families to move forward and deal with the loss, while seeking justice against defendants. For McIlmail’s family, the wrongful death lawsuit may finally prove Brennan’s egregious actions and prevent any other related deaths.

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.


Van versus bicycle accident results in $2.3 million wrongful death lawsuit verdict

A 52-year-old man was hit by a van belonging to a hotel corporation, driven by a hotel employee.

This case was about being in the wrong place at the wrong time. A 52-year-old man was out riding his bicycle early in the evening in September 2008, when he was struck by a van being driven by an employee of one of the local hotels. At trial, the van driver and the hotel corporation were found equally liable in a civil suit filed by the family of the deceased bike rider.

The bike rider was not wearing a helmet at the time of impact, and he was ejected from his bike, slamming into the pavement, sustaining serious traumatic brain injuries. Although he made it to the hospital alive, and survived emergency surgery, he died three days later. He left behind a wife and three sons.

The jury ruled that the bike rider and the van driver were both at fault for the accident. However, the van driver and therefore the driver’s hotel employer were responsible for 58 percent of the negligence in the accident. The cyclist was deemed to be 42 percent responsible, as no one could ascertain for sure if he had obeyed a stop sign prior to the collision. It was determined that the van driver did not have a stop sign, but also revealed that he was traveling 40 mph in a 25 mph zone.

Other evidence that came to light during the trial determined that the van driver may also have been using a cell phone just prior to the impact; a violation of state law. The driver denied that he was on his phone. In assessing the case, the jury awarded $1,709,840 in damages to the estate of the deceased cyclist and $580,000 in damages to the widow, who had asked the court to award expenses for medical bills, funeral and burial costs, lost wages and the permanent loss of her husband’s earning ability, companionship and moral support. The deceased had been a doctor in his native homeland.

Most wrongful death lawsuits are not about exacting revenge. They are about making sure something horrible does not happen to someone else’s family. They are about seeking compensation in order to be able to move forward with their lives. They are about trying to heal and deal with the sudden loss of income provided by the deceased who died a wrongful death.

None of these cases are easy, and many of them take a number of months, if not years to get through court. This is why a family who has lost someone in such a manner needs to seek compassionate and experienced legal counsel from an Austin personal injury lawyer. Assessing damages in cases like this is part of the experience counsel needs to help a family get the compensation they deserve. A seasoned personal Austin injury lawyer will get the family through their ordeal with as little anxiety and grief as possible.

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

This case is an example of a personal injury case and not one of our firm’s cases.

Assault in Nursing Home Results in Wrongful Death

Nursing home abuse may escalate into a wrongful death scenario. This case did.

“It’s difficult to read and hear about senior citizens being mistreated so badly that they die as a result of someone’s abuse. In this case, an 85-year-old woman was viciously throttled, then thrown on the ground. She was further neglected by assisted-living home staff,” recounted Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P. “The woman died in a hospital a few days later.”

The facts of this case are disturbing because they paint a picture of an environment no one would want to find themselves in. The woman had chosen to live in the retirement community where she felt she would be secure and safe. Instead, she was stalked by a male Alzheimer’s patient, a man who has a record of assaulting others in the same facility. She was advised to avoid him. She did. He did not avoid her however, and one day he nabbed her in a corridor, brutally choked her and tossed her to the floor.

“Evidently, staff witnessed this event, but they did not call for medical help. She was escorted back to her room, where it was later noticed the left side of her face was drooping and the left side of her body was unresponsive. The woman was rushed to hospital at 3:00 a.m. several days later,” said Schuelke. Medical negligence? “The court may well regard this incident as being grossly negligent, as the staff did not provide the woman with immediate medical attention.”

The lawsuit alleges the facility was negligent in carrying out its duties to protect and care for the residents, and asks the court for damages for pain and suffering, mental anguish, and humiliation. “If you see medical negligence, or suspect it, don’t wait to contact a skilled personal injury lawyer. Someone needs to be held responsible for their negligent actions, particularly if they seriously injure, or kill someone,” Schuelke stated.

Contact Perlmutter & Schuelke PLLC at or (512) 476-4944.

Car Wrecks: Good News/Bad News On Car Wreck Deaths

Late last week, Austin American Statesman writer Ben Wear had a great story on auto accident fatalities.

The good news: a Texas Department of Transportation report found that traffic fatalities in Texas have decreased by almost 15 percent since 2006.

The bad news: Texas is still significantly more dangerous than the United States as a whole.

There’s also a catch.  The improvement numbers are based on number of deaths per miles driven.  In 2010, Texas saw 3,028 traffic deaths, equating to 1.29 deaths per 100 million miles driven.  In 2006, the death rate was 1.5 deaths per 100 million miles driven.  I haven’t been able to find raw data on the actual number of traffic fatalities in 2006, but given the states’ increased population growth and increasing miles driven, I am guessing that the actual number of deaths were pretty similar for both years.

The other bad news:  There wasn’t a decline in highway deaths 2011.  The number of US highway traffic fatalities decreased for much of the country, but the numbers for Texas stayed flat.

Generally, the number of deaths should be decreasing.  Vehicly safety has improved significantly; people are getting better about wearing seat belts; there is increased awareness about drunk driving and distracted driving.

One reason that Texas may not be improving as much as the rest of the country is the trucking industry.   With I35 being a huge trucking corridor and the increased number of trucks in the South Texas area due to the resurgence of the oil and gas industry in Eagle Ford shale areas, Texas has a disproportionate number of trucks and big rigs on the road, increasing the likelihood of fatal accidents.

If you or a loved one has been injured or killed in a traffic accident, please allow us the opportunity to help by calling (512)476-4944 or submitting a case using the forms on this site.

Austin American Statesman Covers Confusing World Of Hospital Costs

One of the most frustrating issues for our personal injury clients is dealing with hospitals and hospital charges that don’t seem to make any sense.

Yesterday, Austin American Statesman writer Mary Ann Roser had a great story that looks at the mysterious world of emergency room and hospital charges.  She took the time to research the costs of various procedures at different facilities, and her results are stunning.

For example, she found that the cost of treatment for a stroke could range anywhere from $68,188 to $7.990 depending on which hospital provided the care.  Similar disparities existed for all other kinds of treatment.

This generally isn’t a problem for those who have health insurance because the insurance companies have negotiated rates (usually MUCH lower than these rates) with the various hospital systems, but it is a huge problem for those who don’t have insurance.  The uninsured are left to try and negotiate reductions for themselves, and without the leverage of a large health insurance company behind them, most of those negotiations are unsuccessful.

It’s even worse for injury victims.  Hospitals who provide emergency care to injury victims are entitled by law to file a lien against the victim’s recovery in any future personal injury case.  That lien removes what little negotiating power the patient has, and injury victims are often exploited for a large portion of these made up charges.

One of my favorite examples of these abuses is a relatively new “Trauma Activation Fee” that Brackenridge Hospital is trying to add to many patients’ bills.  If you’re unlucky enough to be taken to Brackenridge and they activate a trauma team (regardless of whether you need it), they charge a trauma activation fee ($14,247.50 for a Trauma II charge; I don’t know the charge for Trauma I).  You get charged this fee even though you didn’t request and often when you don’t need it.  And yet, if you’re uninsured, you have little leverage to negotiate it down.

As I wrote earlier this month, the Patient Protection & Affordable Care Act (Obamacare) is supposed to help prevent these abusive practices, but we’re still not seeing those results yet.  Often, when I talk to hospital representatives to negotiate bills and inform them of the law, the representatives have never heard of it before.

It is a problem, and I appreciate the Statesman bringing it to light


Posted on: July 23, 2012 |

Auto Accidents: Is A Ban On Using Cell Phones In Cars Ahead?

Tuesday, the National Transportation Safety Board urged a complete ban on the use of cell phones while driving.  The Board has recommended that all states adopt a complete ban on the use of cell phones while driving — including texting and emailing — except in emergency situations.  It would include a ban on using phones even with hands-free devices.  While the Board doesn’t have the authority to enact any legislation, its opinion does hold sway with federal and state regulators and legislators.

The impetus behind the suggestion is the increasing problem of distracted driving.  According to the National Highway Transportation Safety Administration data, at least 3,092 roadway fatalities involved distracted driving, though it suspects the number is much higher.  And cell phone use is one of the sources of distraction.  At any given daylight moment, an estimated 13.5 million drivers are using their phones.

The proposal appears to have support among many Central Texas traffic enforcement officials.  In an Austin American Statesman article this morning, Texas Department of Transportation spokesman John Hurt said he thought transportation departments would support the ban.  Also, spokespersons for the Austin Police Department said they’d support a ban.

I can’t imagine such a ban passing, but I do hope that the proposal starts a discussion about the increased dangers of distracted driving.  This is a serious problem that we see every day.  One of the APD officers said in best in the Statesman article when he said that we need a culture change.  Hopefully we can start moving to that change.

Wrongful Death Claims Stack Up At Concert Venue

Stage collapses resulting in deaths have dominated the news lately, and are prompting the filing of wrongful death lawsuits.

This reported case was filed by the family of a woman killed by a stage collapsing on her while she was attending a concert. The 42-year-old woman was treated to front row seats for the event as a birthday gift from her life partner, a 49-year-old woman.

A brutal wind came up suddenly and the stage collapsed on the women, severing the 49-year-old’s toe, causing severe bruising, a broken clavicle and many deep wounds needing stitches, and killed the other woman. The family, which included the 17-year-old daughter of the dead woman, chose to file a wrongful death lawsuit on the basis that they felt this tragedy could have been prevented. Evidence suggests that the stage was flimsy from the start when it was being erected and that those putting it up should never have been allowed to finish setting it up. In other words, it was an accident waiting to happen.

Screams tore through the grounds when the wind hit, and the stage lifted off its foundation like it was made of matchsticks. It may as well have been made of matchsticks the way it crumpled and burst apart. Those sitting in the front rows had no place to go and nowhere to hide for protection. They just had to hope they made it out ok.

The weak and shoddy stage was just the tip of the iceberg in the chain of events that led to the 42-year-old’s death. Just prior to the devastating collapse, the national weather service for the area had issued warnings of impending severe weather – severe enough that the concert ought to have been rescheduled. The facts were clear and indicated that mixing an outdoor concert with ugly weather was asking for trouble. Attending emergency medical personnel could not understand the venue continuing the event when they had knowledge of the approaching storm.

Is this a case of negligence? Quite likely, as this kind of accident was not unforeseeable, nor was it an unpredictable, off the wall, strange thing that just happened. Based on the poor construction of the stage in the face of a catastrophic storm with the potential to kill, someone will be held responsible.

Have you been in a similar situation and do not know where to turn? Make your first call to an experienced Austin injury lawyer and find out what your rights are, how the evidence is preserved, what damages may be claimed and how a trial may proceed.

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

Personal Injury Cases: Types Of Information Kept From The Jury

I’m spending a little time today preparing for a jury trial in a couple of weeks, and due to some circumstances, it got me thinking about the things about a case that a jury doesn’t get to know. 

These issues sometimes come up when talking to new clients. One of the common comments I hear is, “If the jury just gets to hear about X then that will really help our case.” 

But  many times, the jury may not get to hear about X.

There are a number of rules that limit what information we get to tell a jury.  Sometimes the rules exist to prevent the jury from hearing information that courts believe is irrelevant, and sometimes it is to prevent the jury from hearing information that is deemed to be too prejudicial to one side or the other.  Regardless of the reason for the rule, there are a number of limits.  Some of the more popular limits are listed below.

1.  Insurance.  In most personal injury cases, the defendant (the party that did something wrong and is being sued)  has insurance to pay for the lawyer and that will pay for any judgment rendered against the defendant.  However, one of the most long-standing rules is that the parties can’t tell the jury that the defendant has insurance, that insurance might cover the jury’s award, or anything similar.

2.  Attorneys’ fees.  In most personal injury cases, the plaintiff (the party that is injured and filed the lawsuit) has to pay his or her attorney out of the jury’s award.  And yet, we’re never allowed to tell the jury this fact.

3.  The defendant’s history.  In many cases, the defendant may have a history that our clients think is relevant.  For example, if it is a car wreck case, the driver may have a bad driving record with prior wrecks or tickets.  Or, the other side may have a criminal history or a history of alcohol or drug abuse.    In most cases, the jury never gets to hear about these “prior bad acts” (as we call them).

4.  Settlement offers or negotiations.  Sometimes clients think that we can tell a jury about settlement offers from defendants and that the jury will use those as a “floor” for an award.  But in most instances, we can’t tell a jury about settlement negotiations, mediation, or other settlement discussions.

5.  Effect of jury answers.  The way our system works, the jury doesn’t decide who wins or who loses.  Instead, the jury is asked a series of questions.  But the jury doesn’t get to know what their answers mean, and we’re not allowed to tell them how their answers might affect the ultimate award.  This was really demonstrated in a case of ours a few years ago.  In a business case, we obtaned a jury verdict that included an $8,000,000.00 punitive damage award.  But due to tort reform legislation, that recovery was limited to $250,000.00.  When we told the jury about it afterwards, they were floored.  They had been trying to punish the defendant for their egregious conduct, but the result ended up being a drop in the bucket for this large company.

My list could go on and on. There are any number of additional things a jury doesn’t get to hear about, but these are a biggies.

And as I said, these are only the general rules, and in some cases, there might be ways for attorneys to legitimately get the right to tell the jury about some of thse items.  In fact, I often tell people that one of the advantages of hiring an experienced personal injury attorney is that they might know tricks that increase the likelihood that you get to tell the jury these things.   That is especially true for trucking accident cases.

Posted on: October 4, 2011 |

Schuelke Law 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

Law Firm Website by CLM Grow