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.

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 LLP. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

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.

Traumatic brain injury can come about as the result of a tornado. If the trauma is dealt with in the correct manner, the victim may have a chance at recovery.
Recovery from traumatic brain injury is often a long and exceedingly slow process, if it can be accomplished at all. Time is of the essence in cases like this, but in special cases, like this reported case, the damage is done and the victim is left to wait for medical help later.

The 14-year old boy who needed skull surgery to piece his skull back together was a victim of the EF-5 tornado that ripped through Joplin in May 2011. He had to wait for his surgery and in doing so lived for a while with two sections of his skull. He also needed to have four inches of his brain removed due to severe damage. Doctors were not certain how well he would do, as they estimated his mental acuity as being that of an 8-year-old child.

This child is at a point where surgeons can attempt to reattach the shattered pieces to protect his brain, which swelled after the initial injury. It’s one more step closer to the boy’s dream of being able to ride horses once more and play his favorite sport of soccer. This boy isn’t the only one that sustained severe head trauma as a result of that horrific storm. There are many other children facing similar surgeries.

Surgeries like this one are high risk. That is a virtual given before anything is attempted. But what other options might there be for kids like this one? They need medical help and they need to get on with their lives. If the medical assistance and surgeries go well, the child may have a good prognosis for the duration. If something goes wrong during surgery, such as a wrong medication, too much or too little anesthesia, improper monitoring, a slip of the surgeon’s knife or an operation conducted on the wrong patient, the patient is then the victim of medical malpractice or a wrongful death.

Don’t take the chance that your child may have been harmed or killed by a negligent doctor, nurse or hospital. If you have questions, doubts, fears and need answers, make your first point of contact an Austin personal injury lawyer. Your first meeting is free of charge and you can find out what you need to know by asking the Austin personal injury lawyer what medical malpractice is and how it relates to a wrongful death lawsuit.

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

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.

1. 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.
2. Dress in something comfortable, but appropriate. I generally suggest that you dress as you were going to work.
3. 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):

• How Does The Mediation Process Work?
• Why Mediation Works
• Alabama State Bar:  What, How & Why of Mediation　

You settle your case.  What happens next?

It seems like I’ve been asked this question several times in the last week.  Because it’s popping up, I thought I’d use this space to answer the question.

Because we have to make payments out of the check  (for example, our fees & expenses, payments to health insurance companies for subrogation interests, or perhaps payments to doctors or hospitals for unpaid bills), you don’t get your check the day the settlement check comes in.  Instead, we have to go through a multi-step process.

The first step in the process is getting the check from the insurance company or the defendant.  This usually takes two to three weeks, though sometimes it is quicker and sometimes slower. 

The check is usually made out in one of two ways.  In most situations, the insurance company will make the settlement check out to you and to our firm.  In some instances, the insurance company will want to directly pay a health insurance company or a medical provider (usually a hospital).  In those cases, we’ll received two checks:  one to the hospital or health insurance company for the amount it’s owed and one to us and you for the balance.  There are also some situations where the company will agree to not put your name on the check to help us speed the process up, but that’s unusual.

When we get the check, if your name is on it, we’ll have to get your signature.  Usually, you’ll come into our office for this, but sometimes we can send a runner with the check out to meet you.

Once you sign the check and we sign the check, it is deposited in our trust account.  The State Bar of Texas requires us to keep a separate trust account to deposit funds that belong to both us and our clients (or even others). 

After we deposit the check, we give it a few days to clear, and then we can write checks for final distribution — that includes checks to you for your portion, checks to us for our portion, and checks to any third-party who need to be paid out of the proceeds. 

So what’s it all mean to you?  While the process can take a while to explain, it doesn’t usually take that long in practice.  Once we get the original settlement check, you can usually have a check for your portion of the proceeds in two to three business days. 

BUT, there are some circumstances where it takes longer.  Most of those involve us waiting around for Medicare or some other governmental entity on a subrogation claim.  If your case is going to be one of the unusual cases held up, we’ll try to let you know that as soon as possible.

The parents of a dead man were suspicious of their daughter-in-law’s role in the sudden death of their son, so they filed a wrongful death lawsuit.

“This is an unusual case, one that captured the attention of the media for many months as the twists and turns of the story unfolded. In this reported case, the woman in question found her husband in the bedroom, and he was not breathing. EMS crews rushed him to hospital, but he was pronounced dead. The medical examiner said he’d died of a mixed drug intoxication, ruling the tragic death accidental,” said Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

The verdict did not sit well with the dead man’s family, and his father was immediately suspicious. He felt there was something wrong. The dead man’s family watched the widow move into a new house just after she stated she was selling because the home was too big for her. It turned out the new home was even bigger and more expensive. The family had trouble understanding how she could find the funding for a near-million dollar home.

The family spoke to a Sheriff’s Deputy about her unusual new found wealth, prompting some inquiries to the former neighbours of the deceased and his wife. What they uncovered was a shocking story in which the woman told the neighbours that she had mixed Vicodin into her husband’s drinks the evening he died, because she did not want to have intercourse with him. The sordid details did not stop there. The police report also contained information that the woman had been having an affair with a 15-year-old student.

As a result of this investigation, the dead man’s death certificate was changed from accidental to undetermined – a move that confirmed the feelings of the family that their son had been murdered. With death certificate in hand, and the rest of the details about their son’s death, the parents filed a wrongful death lawsuit.

“This is an interesting case from several points of view, but the most important element is the presence of negligence on the part of the wife in slipping her husband Vicodin. While it may have been done to incapacitate him for the evening, she obviously went too far. Without getting into the criminal charges here, the woman can be sued in civil court by the man’s family for the death of her husband. I’d strongly suspect they may ask for punitive damages, given the circumstances of the death and her other behaviour,” Schuelke said.

While this is a different case, the family will still need the valuable experience of a personal injury lawyer to help guide them through the justice system. They will, in all likelihood, receive a jury award for their son’s death, and while that will not bring him back, a finding for the plaintiff will hopefully prevent something similar happening to someone else.

Contact Perlmutter & Schuelke LLP at http://www.civtrial.com or (512) 476-4944.

This case was torture for the family, and ultimately ended in a wrongful death lawsuit.

This case involved the worst nightmare of any parent; a child committing suicide. However, this case had a further twist. The young man who took his own life was showing clear signs that he needed help, and no one at the university did anything about it. The man’s body was found on top of a campus building.

The parents in this case, shocked beyond belief and wanting to prevent what happened to their son from happening to anyone else’s child, filed a wrongful death lawsuit. The suit names the former dean of the university, the current dean and three school psychologists. It suggests they failed to help their son, when he plainly stated he wanted to die after a prior suicide attempt, just two weeks before his body was found. The suit was seeking $20 million in compensation.

The evidence included the assessments of three psychologists, who evidently had diverse opinions about the young man’s state of mind. One commented the young man displayed a normal non-depressed, reasonably positive mood. Another said he was showing signs of chronic depression, but it was not as bad as major depression. Both these assessments were made in the two weeks leading up to the young man’s death. Unfortunately, the university did not tell his parents, or have him evaluated any further. The man had told friends he was having trouble moving forward with his life after a breakup with his girlfriend.

Since the man’s death two years ago, and his family filing a wrongful death lawsuit, they have been working towards a settlement of some sort with the university rather than go to court. Many suits of this nature may be settled out of court, with the decision to move forward to litigation being held in reserve, until all other avenues have been explored. This is certainly an option a good Austin personal injury lawyer would discuss with a client in a similar situation.

It is not an easy decision to file a wrongful death lawsuit, and it often takes a long time before a case does go to court. This has to do with the complexities of filing such a suit. For instance, trying to determine the amount of compensation to seek in court is very difficult. Families may recover payment for the deceased’s medical bills and funeral and burial expenses. However, the survivors have been injured by the death of someone they loved, and this means, what would have happened in the future, needs to be taken into consideration. For this, and other reasons, hiring a skilled Austin personal injury lawyer will make this process a lot easier to handle.

In other words, damages may include, but are not limited to, an estimated sum dealing with wages the person who died would have earned, had they lived, and the pain and suffering the survivors are dealing with due to the death. Projections on the amount of money earned in the future by the deceased are usually done through expert testimony.

Waiting to file a wrongful death lawsuit is not advisable because in these kinds of lawsuits, there is a set timeframe for filing, which, if not met, means the claim is barred permanently. This time frame is set by state law and the clock starts ticking from the time of the death, in most cases. There are some states that stipulate the clock begins to run from the time the party was aware of or found out about the death. It’s important to know what the Statute of Limitations is in your state; a question you would need to ask your Austin personal injury lawyer.

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

In short, everything you think is relevant, and probably more.  I always tell clients that we would much rather have too much information than not enough.    While each type of case is different, there are some general things that you should consider bringing to your initial attorney consultation.

1.  ACCIDENT REPORT.  In many types of accidents, you might already have access to accident reports about your case.  For example, if you’re in a car wreck, you should bring the police report.  If you have an on-the-job injury, you should bring any investigation report performed by your company.  If you’re injured on the premises of a business, you were likely required to fill out an incident report.  You should bring any type of reports like these to your initial meeting.

2.  PHOTOS/VIDEOS.  If you have photos or video of the accident scene, the other parties, or your injuries, then bring those in.  Photos can be priceless in helping tell your story.

3.  A LIST OF DOCTORS/MEDICAL PROVIDERS.  Prior to your consultation, you should prepare a list of doctors and medical providers who you have seen for the wreck  We’re going to ask you for that in the meeting.  Instead of you being put on the spot and trying to think of those items off the top of your head, try to prepare the list in advance.  I’ve found that clients who prepare the list in advance  (without  the stress or being rushed) do a much better job of naming everyone that needs to be on the list.

4.  MEDICAL RECORDS AND BILLS.  If you have any medical records or bills, bring those to the initial meeting. 

5.  YOUR HEALTH INSURANCE POLICY/MEDICARE or MEDICAID INFORMATION.  It might not occur to you, but it helps to have your health insurance policy.  Because of subrogation principles, your health insurance is probably going to be asked to be reimbursed for any medical expenses it pays on your behalf.  The same is true for Medicare, Medicaid,  VA Benefits and any number of other groups that pay for your medical care.  To help us prepare for your subrogation claims, please gather your health insurnce policy, Medicare or Medicaid records, or any additional information that you think might help us pursue those subrogation claims.

6.  FOR CAR WRECK CASES, YOUR AUTOMOBILE INSURANCE.  Again, you might not think about this, but if you are retaining us to represent you in a car wreck, please bring your automobile insurance policy.  We’ll need that policy to help you determine whether you have Personal Injury Protection (PIP) or Uninsured/Underinsured Motorist Coverage (UM/UIM).

7.  CORRESPONDENCE WITH THE INSURANCE COMPANY/DEFENDANT.  If you have already started receiving communication from the insurance company or the other side, we’ll want to know about that.  Please bring that information to the first meeting.

There will, of course, be additional documents that you need.  Use your discretion.  If you think there is any chance that we’ll need the information, then bring it.

Early this morning, a car in Georgetown flipped, slid off the roadway, and then crashed through a fence and hit the back of a home.  A passenger in the vehicle was tragically killed, but no one in the home was hurt.

You don’t hear about car-house collisions much, but they happen.  In fact, earlier this week, another lawyer and I were talking about  (okay, actually emailing each other about) a similar case. 

Sadly, these kinds of cases happen more than any of us would like to think.

In the case at hand, the real question is what kind of claims the passenger might have.  As usual, the passenger’s family and estate have a wrongful death clam against the driver of the car.  But they may also have uninsured/underinsured motorist coverage available.  They just need to make sure they do a proper investigation of available claims before they start trying to resolve the matter.