What Is Mediation?

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):

Your Case Has Settled. What Now? How Are Settlement Proceeds Distributed?

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.

Posted on: August 3, 2011 |

Family of Deceased Files Wrongful Death Lawsuit after Vicodin Kills Husband

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.

Student Suicide Results in Wrongful Death Lawsuit

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.

Personal Injury: What Should I Bring To My First Meeting With A Lawyer?

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.

Posted on: May 5, 2011 |

Georgetown Car-House Collision. How Frequently Does That Occur?

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.

Posted on: March 30, 2011 |

Car Wreck – Personal Injury Problem: Hospital Liens

Sunday’s Austin American Statesman had a wonderful article about hospital liens, a problem that can really muck up a car wreck or other personal injury claim.

Texas law provides that if a person is injured in an accident and is admitted to a hospital within 72 hours of the accident, then the hospital has a lien against any recovery for the amount of the care. (You can read the entire statute here.)

That sounds reasonably fair — hospitals should get paid for their services.  Except that many hospitals are abusing the statute in an unfair manner. 

There are two problems in the way that hospitals abuse the statute.  First, they charge ridiculous prices.  When you go to a hospital, you don’t get to sit down and negotiate prices or look at a menu with the services and prices next to them and choose what you want.  The hospitals decide what treatment you need (as they should) and then they also get to set the prices.  Unfortunately, the prices that they set in the personal injury context are ridiculously high prices that no one really pays.  It’s a pie-in-the-sky number that they try to force on injury victims.

Second, they abuse the system by trying to charge these prices even when other insurance or other payment sources, such as Medicare, are available.  Because the amounts for the services are so much higher than what an insurance company or Medicare would pay for the same services, hospitals often forego payment from these sources and then file the lien hoping to get the inflated prices from the injured victims. 

In the health insurance context, the Texas legislature has tried to fix the law, passing a statute that requires hospitals to submit claims to available health insurance companies when the coverage is available.  However, there is a bit of a debate about whether that law applies to Medicare or other similar proceeds.  As a result, hospitals are refusing to bill Medicare and similar providers in this context to try to get the higher amounts from you.

We need the legislature to again step in and clarify that the lien is not valid if the hospital fails to submit the claims to Medicare.  Until then, our only course of action is to sue the hospital for a declaration that the charges are unreasonable.  This causes all the parties to incur unnecessary attorneys’ fees and just causes unnecessary stress for injured victims, but it’s the only mechanism for resolution we currently have.

I do encourage you to read the article.  They have more time to write about the problem, and they share stories that really show how it affects you as victims.  Also,  representatives of one of Austin’s most aggressive lien filers make some very questionable statements in the article about their practices.  In some, but not all, of those cases, the author of the article calls them on it. 

I’m just thankful that this problem has reached the popular press.  Maybe the publicity will cause some changes.

“Independent” Medical Exams In Personal Injury Cases

A favorite insurance company ploy in personal injury cases is to request that an order from the Court that the plaintiff be required to undergo an “independent” medical exam — an exam by a doctor hired by the insurance company.

Despite the implications of the name, these are not indpendent.  The doctors are hired by insurance companies and these exams are filled with fraud.

Back in 2009, the New York Times ran a long story exposing many of these exams for the fraud that they are.  Among other things, the report found doctors reporting on tests that were never done, given written reports saying the patient had no injuries when the videotaped tests and exams proved otherwise, and doing cursory exams. 

At the time, I wrote a long blog post that summarized the article, The New York Times Tells The Story Behind “Independent” Medical Exams, and you can read that post for more information. 

But many times, pictures (and videos), tell a story better than words.  And I recently saw a tongue-in-cheek video that was an example of an “independent” medical exam.  It would be a lot more funny if it wasn’t so darn true.

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

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.

How Might The Texas Budget Crisis Help Reduce Texas Car Wrecks?

If you haven’t been paying attention, the Texas legislature is in session and facing a huge budget shortfall — with most estimates predicting a shortfall between $15 and 27 Billion.  Because the Republican leadership is pledging not to raise taxes or tap into the state’s rainy day fund, the balanced budget will only be achieved through significant cuts and creative ways of raising  additional funds (somehow this is different than a tax increase).

One of the creative funding mechanisms may help reduce the number of Texas car wrecks.

How?

One of the proposals to raise more money contained in the House of Representatives’ budget is to ban the use of wireless communication devices while driving — in other words, no more texting while driving or talking on a cell phone while driving. If this is adopted, it will significantly improve the safety of Texas roadways.  I’ve often written about the dangers of texting while driving  (see a collection of some of my posts on texting while driving).    It is a real threat, and making it illegal will likely help make the roads safer. 

And how is this related to the budget?  The Legislative Budget Board estimates that this move will generate $2.3 million.  They’re not clear on how that will occur, but I’m guessing that it is through expected fines for those that will continue to violate the law.

I think this is also an interesting study on how to position legislation.  For years, some legislators have championed the idea of banning cell phone use while driving because of the safety issues.  As a safety issue, the idea has never received much traction.  But if it now passes based on the argument that it’s a money making idea, it will be a telling lesson about the legislature’s priorities.

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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