Austin’s annual Republic of Texas (ROT) Rally has come and gone, and again we’ve had too many motorcycle fatalities.   This year, three motorcyclists were killed during the weekend.

In the first incident, a rider crashed into a guardrail on the Highway 290 flyover and fell off the flyover.

In the second incident, the rider was attempting a turn on Koenig Lane but crashed because his kickstand was down.

In the third, a rider was traveling on MLK Blvd when a Lexus turned in front of him.

Sadly, this makes some progress.  At first glance, only the third incident appears to have been caused by other motorists  (though police are still investigating what caused the first motorcyclist to hit the guardrail).  In years’ past, there seemed to have been more fatalities caused by other drivers.

There could be several reasons for that, but I suspect it’s because Austin drivers are becoming more aware of motorcyclists during ROT Rally weekend.   As Austin continues to host the Rally, people naturally become more aware of it.  But public officials are also pitching in. It appeared to me that there were more signs warning drivers to look out for motorcycles.

Let’s hope that these improvements continue and that we see fewer and fewer motorcycle accidents on ROT weekend and throughout the rest of the year.

If you or a loved one has been injured in a motorcycle accident, please let us to help.  You may call us at (512)476-4944 or submit a case using the forms on this site.

I’m a huge fan of TED, the Technology, Entertainment, & Design conference.  It’s an annual event that asks some of the world’s most brilliant people to give short speeches on a wide-range of topics.  People pay thousands (or tens of thousands) of dollars to attend live, but most of the talks are presented on the TED website.

This weekend, I was listening to NPR’s Ted Radio Hour Podcast, and I heard the story about Jane McGonigal’s Ted Talk.  Ms. McGonigal is a video game designer, and the thesis of her talk was how video games can be used to solve some of the world’s problems.

But the amazing thing about her story is that she has proven it herself.  You see, in 2009, she suffered a traumatic brain injury.  She was on the brink of suicide when she decided to try to develop a video game that could help her recover.   And it did.   Within months of being on the verge of suicide, she was not only able to improve her condition and cope with her limitations, but she was able to develop and present her TED talk.

That game, Superbetter, is now available to all.  It was released in March of this year and is being used by people all over the world to help them deal with their ailments.  You can watch a video of Ms. McGonigal discussing the game here.

Many of our clients are minors who have been injured.  And those cases (at least in Texas) are treated a little bit differently.

The first difference is how the case is settled.  For an adult’s claim, the adult simply agrees to the settlement and signs the settlement agreement.  The lawsuit, if any, is then dismissed.

But minors can’t sign contracts.  To remedy that, the Courts have long used the guardian ad litem and friendly suit process.  In some cases, lawsuits are already on file, but if not, the parties would file a “friendly suit,” a lawsuit between the parties solely to get in front of the judge.  At that point, the judge appoints a guardian ad litem, who is a lawyer tasked solely with looking out for the interests of the minor.  The guardian ad litem would do some initial investigation, which includes reviewing the facts of the incident, reviewing medical records or other documents relating to the minor’s injuries, and talking to the minor’s parents to get a feel for the minor’s condition.  The parties would then have a “prove-up” hearing.  At the hearing, the minor’s parent or guardian tells the judge about the incident, the harm to the minor, and the minor’s prognosis.  The guardian ad litem then reports to the judge on whether the the guardian ad litem approves or disapproves of the settlement.  The judge then makes a decision to approve or disapprove of the proposed settlement.

Because this is a long (and sometimes expensive) process, insurance companies sometimes try to circumvent it.  Instead of going through the hearing, they will ask for a settlement that includes the parents’ indemnification for future claims.  What does that mean?  Without the prove-up process, the minor maintains the right to sue because minors can’t enter into contracts.  In order to protect themselves, insurance companies ask the minor’s parents to sign an agreement saying that the parents are settling the case and that, in exchange for settling the case, the parents agree that if the minor comes back at a later time and sues the defendant or the insurance company, then the parents will reimburse the insurance company and the defendant for attorneys’ fees, costs of court and for any amounts the companies had to pay.  Thus, the case is over, but the parents are taking the risk that the child later chooses to sue.

The other way personal injury cases for minors are different is determining where the money goes.  In a typical case with an adult, we’ll get settlement proceeds and simply write a check to the adult.  That doesn’t happen in cases with minors.

If the minor’s personal injury case goes through the lawsuit/prove-up process, the money can be deposited in the registry of the court, and the minor can’t withdraw it until the minor turns 18.  Alternatively, the money can be used to purchase a structured settlement — an annuity that pays the minor in periodic payments after the minor’s 18th birthday.  If economically feasible, most clients prefer a structured settlement.  The return on the investment is usually a little higher, but more importantly, some parents just don’t think it’s a good idea to give a child a reasonable chunk of money on their 18th birthday.

If the insurance company settles outside the lawsuit/prove-up process, then the lawyer needs to make clear to the parents that the money belongs to the minor and should be kept in an a separtae account for the minor.

A dozen former National Football League players have filed a personal injury suit against the NFL and others for allegedly overusing the painkiller Toradol.  The lawsuit alleges that teams and trainers were regularly dispensing the medication, which made it difficult to know when players had sustained serious injuries, including concussions.  The emphasis is on concussions and the long-term effects of concussions on the league’s players.  The specific allegations are that the players have residual concussion symptoms, including anxiety, depression, memory loss, severe headaches, sleeplessness, and dizziness.

This story serves as a reminder for several lessons.  First, it is again a reminder that in sports there are many injuries that aren’t just accidents.  While some injuries are unavoidable, teams owe duties to players to take reasonable precautions to make sure the players are safe.  That means not overly medicating them, not forcing them to practice in unreasonably hot or dangerous conditions, etc.

Additionally, the story is a reminder about the danger of concussions.  I feel like I’m on a one-man crusade on this blog, but car wreck and other injury victims need to be on the lookout for symptoms of concussions.  They are sometimes difficult to diagnose, but they can have long-term health consequences.

If you or a loved one has been injured in a sports-related incident or have suffered a concussion in an accident caused by the negligence of others, please give us a call, and we’ll do our best to help you out.

In 2009, USC running back Stafon Johnson was working out at USC facilities trying to get ready for the upcoming NFL draft, when a bar carrying 275 pounds fell on his neck, almost killing him.  Johnson subsequently filed suit against USC and the USC strength and conditioning coach.  And the personal injury suit settled this week.

Johnson’s lawsuit was one in an increasing number of suits filed as a result of sports injuries where schools, coaches, trainers and others expose athletes to unnecessary risks, in some cases almost guaranteeing serious injury.

 As I’ve discussed on this blog, a number of former NFL players have filed suit against the NFL and others for failing to warn of the dangers or to protect them from head injuries. 

In Texas, those suits take another predictable form — heat stroke.  While many schools do a good job of protecting their athletes, some coaches insist on pressing the limits and schedule summer or pre-season football workouts in the heat of the day.  Predictably, that kind of conduct can cause serious heat stroke illnesses or even death.  These types of injuries don’t have to happen.  University of North Carolina professor Frederick Mueller, who studies these types of injuries, is quick to point out that all of these heat stroke deaths are preventable with proper precautions, and thus, any death is inexcusable.

These types of injuries aren’t limited to football.  They can occur in any sport where proper precautions or oversite aren’t offered. 

Just remember that the next time you see a sports-related injury, it might be more than an “accident” — it might be a predictable injury caused by someone failing to do their job.

School started back up this week, and the Austin Police Department and others are again stressing the importance of avoiding distracted driving in school zones. Last night, KXAN reporter Doug Shupe ran a great story on the problem.  Sadly, the crossing guards he interviewed said that the worst problem was around Casis Elementary, my son’s school.  From the story:

The potentially dangerous violations include drivers not stopping at crosswalks, talking and texting on cell phones, and even driving on the wrong side of the road.

During crossing guard training classes, Chris Moore, coordinator for the City of Austin’s Child Safety Program, hears the frustrations from those who try to keep kids safe on the way to and from school.

“We literally have to reach over and pull a child back or push them back out of the way because cars are coming through and the crossing guards are frightened,” said Moore.

 Distracted driving is a problem that is becoming more and more common in my cases.  Despite more and more publicity about the dangers of distracted driving, particularly texting while driving, people seem unwilling to keep their focus on the road.  And far too often, that has serious consequences for others.

If you read this site, you know that I’ve had many posts about the dangers of distracted driving and texting-while-driving. To read those, use our handy search feature on this page.

You can watch the full KXAN story below.

Austin has highest school zone fines: kxan.com

If you or a loved one has been injured in a wreck caused by distracted driving, please feel free to call us at (512)476-4944 or request our free book through this website.

Yesterday, the Austin Police Department released its annual list of the 5 Most Dangerous Intersections in Austin. 

The Top (or Bottom) Five are:

1. Koenig Lane and Airport Blvd.
2. MoPac and Scofield Ridge
3. Congress Avenue and Cesear Chavez
4. Riverside and Pleasant Valley
5. Riverside and Willow Creek

The list is a little misleading since it calculates the number of accidents at each intersection and doesn’t take into account the number of serious accidents at various intersections.  Regardless, when you’re driving in these areas, you might be well-served to pay a little more attention and watch out for others.

Here’s a story from Fox 7 News about the list:

APD Names 5 Most Dangerous Intersections: MyFoxAUSTIN.com

A state-wide texting while driving ban has been passed by both the Texas House and the Texas Senate and is on its way to the governor.  Let’s hope he has the good sense to sign the bill into law.

As you know, if you read this blog, texting while driving is one of the most deadly activities you can engage in while on the road — studies even show it’s worth than driving while intoxicated.  You’d think people would be smart enough to avoid this activity without the government telling them not to do it, but you’d be wrong.  As a result, I think this it the right time for the law. 

If you’re interested in learning more about the dangers of texting and driving, you can read more posts here.

We’re ambulance chasers — at least that’s what the public thinks.  Personal injury lawyers have a reputation for sitting around and trying to chase down injured people so we can represent them in cases.

And sadly, there’s some truth to that. 

There are a number of personal injury attorneys around the state that improperly obtain clients — either by acting themselves, using chiropractors, or using other “case runners” that contact the injured and direct them to attorneys.

But in reality, most of us oppose it and find it despicable.

In truth, Texas law and the disciplinary rules governing lawyers limit how attorneys can contact potential clients.  These are called barratry laws. But they lacked some teeth in their enforcement.  That may have changed.

Yesterday, the governor signed in a new law that adds additional penalties to the statutes limiting barratry.  Under the new statute, a lawyer who improperly solicits clients can be subject to fee forfeiture — that means that they could have to give back any fees they obtain from an improperly obtained case.  Additionally, any person that engages in barratry could be fined up to $10,000.00.  This is important because it might provide some deterrence to case runners.  Fee forfeiture is a good incentive against a lawyer, but it doesn’t do anything to dissuade case runners or chiropractors from acting improperly.  This new penalty might provide some deterrence.

There are a couple interesting things to watch with this law.  Obviously, the important thing to watch is whether it limits case running and barratry in the personal injury arena.  But a second, and perhaps more interesting question, is whether its enforcement will only be limited to the personal injury context.  While most of the anecdotal stories involve the personal injury arena, many big firms around the state use fancy monitoring software to watch and determine when potential clients are being sued.  In fact, there’s a fairly famous video where a plaintiff’s lawyer confronts Joe Nixon, a lawyer and former state legislator who was instrumental in passing tort reform litigation, for calling a potential client about hiring him  (unfortunately, the video doesn’t start until just after the alleged admission of barratry).

Both KXAN and Fox7 reported last night on a collision between a Capital Metro driver and a pedestrian.   The story caught my attention because I’ve been on both ends of that.  I’ve represented a number of people, including one pedestrian, that have been hurt in wrecks with Capital Metro.  And I’ve also had the pleasure of representing a number of Capital Metro drivers, and I know that it’s a hard job.

But watching the KXAN story last night, one thing in particular struck me.  As the original story was going, the news camers showed a Capital Metro employee out there taking photos of the bus and the scene.  (Unfortunately, the story on the website doesn’t show the entire story so you won’t see this if you’re watching the link.) 

In our book HOLDING WRONGDOERS ACCOUNTABLE: AVOIDING MISTAKES THAT CAN RUIN YOUR TEXAS ACCIDENT CLAIM, one of the mistakes we talk about is not documenting the scene.  Many times when you’re in a wreck, you’re too hurt to do anything.  But in some instances, you’re able to take our your camera or cell phone and snap a few pictures of  the cars, skid marks,  debris, people standing around, etc.  This time of information will almost always help in some way or another as the case proceeds. 

This type of investigation is especially important when you’re involved in a wreck with a commercial vehicle, such as a bus or an 18-wheeler.  They will have investigators out on the scene as soon as they can.  And if they’re the only ones that get to document what’s going on, then it’s a huge advantage for them.  

Documenting the scene is also one of the most important reasons why you should talk to an attorney sooner rather than later.  If an attorney is hired early, we might be able to get an investigator out there that can find some skid marks, left over debris, etc.  that won’t be there as time passes.  It’s also sometimes easier to get witnesses to cooperate if we can talk to them shortly after a wreck instead of waiting until months or years later.

UPDATE:

After I finished the post, Steve Lombardi, writing in The Verdict, provided additional insight to his clients involved in accidents and stressed how preserving the evidence at accidents whith photographs is equally vital and important to being able to win your case.  In Why Is The Bus Company Photographing The Bus At The Accident?  Steve adds to the idea that car-truck-bus-motorcycle accident investigations require you to have your own independent investigation to preserve evidence for you.  We’ve been doing that at Perlmutter & Schuelke, LLP  for years.  And now that it’s easier to make digital presentations to the adjuster, through a demand or at mediation, having that type of evidence in disputed cases is more critical than ever.