One of the most dangerous parts of any drive — for both motorists and for construction workers — are highway work zones.  Unfortunately, the dangers posed by construction zones do not receive a lot of publicity.   Maybe that is changing.  Yesterday’s New York Times contained a feature article:  Efforts Lag at Making Highway Work Zones Safer.    Some early take-aways from the article:

1. Work zone wrecks are a huge problem in Texas.  Many of the example accidents that the article discussed occurred here.

2. Work zone dangers come in any number of forms. Some of the more popular problems that people need to look for are  improper pavement drop-offs, barricades set up the wrong way, improper traffic stops, parking construction vehicles too close to the roadway, improper marking of construction.

3. There is no nationwide standard for work zone safety, and most regulations are left to the states.  This poses a problem.  For example, the article mentions that in one state, pavement drop-offs need to be addressed when the drop-off is three inches or more while in another state, the drop-offs only need to be address if more than five feet.

4. The problem is only going to get worse.  As a result of the Obama Administration’s stimulus plan, billions of dollars are being pumped into roadway construction projects. 

I’m convinced that this is such a problem that I’m going to devote a few posts to it over the next week or so.  In the meantime, I’d love to hear comments or suggestions from any of you that have experienced close calls in construction zones.

I’ve long warned injured persons about hiring lawyers who engaged in a high-volume mill practice. Now, a Stanford law professor has taken a hard look at settlement mill law firms. Professor Nora Engstrom has authored Run-of-the-Mill Justice in the Fall 2009 issue of the Georgetown Journal of Legal Ethics.

“Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.”

In her article, Professor Engstrom interviewed forty-nine past and current settlement mill attorneys and non-attorneys to find out how they worked.

First, what is a settlement mill? Professor Engstrom says they generally have ten characteristics:

(1) They are high-volume personal injury practices. Conventional personal injury attorneys have around seventy cases open at any one time and serve approximately 110 clients per year. Settlement mill attorneys often triple that — juggling 200 to 300 open files on any given day. (Our firm tries to limit ourselves to twenty to twenty-five open cases at any one time.)

(2) They engage in aggressive advertising from which they obtain a high proportion of their clients. Most conventional firms rely on referrals from other attorneys or prior clients, but in settlement mills, almost all cases come from advertising. For settlement mills, obtaining a client via an attorney referral is said to be somewhere between rare and unheard of.

(3) They epitomize “entrepreneurial legal practice.” At settlement mills, it is assumed that claims will be straightforward. Standardized and routinized procedures are then designed and employed in keeping with that assumption. Efficiency trumps process and quality. Important tasks are delegated to non-lawyers. Factual investigations are short-circuited or skipped altogether. And negotiating with insurance adjusters and brokering deals is prioritized over work that draws on specialized legal education.

(4) They take few — if any — cases to trial

(5) They charge tiered contingency fees, fees that increase once cases are filed. While  this sounds good in theory, many attorneys used these increased fees to bully clients into accepting settlements.

(6) They do not engage in rigorous case screening and thus primarily represent victims with low-dollar claims.

(7) They do not prioritize meaningful attorney-client interactions. Attorney-client interaction is minimal and, when it does occur, tends to be paternalistic rather than participative. Except for agreeing to accept the ultimate offer, clients play little role in the dispute resolution process.  Clients met with their lawyers when the retainer was signed at the beginning of the representation and when the settlement check was delivered at the end.

(8) They incentivize settlements via mandatory quotas or by offering negotiators awards or fee-based compensation. These requirements and rewards put the focus on the number of files closed or the aggregate returns, as opposed to obtaining a fair value for each individual client.

(9) They resolve cases quickly, usually within two-to-eight months of the accident. Studies suggest that, even if no lawsuit is filed, around one year elapses between the accident and the settlement if a claimant is represented by counsel. At settlement mills, in comparison, cases are sometimes resolved in little as two months and usually within eight.

(10) They rarely file lawsuits.

So what’s the problem with the mills? Professor Engstrom concluded that those with meritorious claims likely get less than they would if not for settlement mills. Why? First, fast settlements depress the value of the claims. Second, settlement mills rarely file lawsuits, and the acts of not filing is correlated with lower settlements. Third, settlement mills commonly impose quotas or incentives on negotiators, which put the emphasis on turning claims over, rather than maximizing their value. Fourth, attorney reputation for going to trial affects bargaining. Because settlement mills have a reputation for avoiding trial, they have less leverage in their dealings with insurers and are less likely to obtain top-dollar.

What did the attorneys say? Professor Engstrom quoted one defense lawyer as saying that he was personally aware of cases I think were settled for $10,000, $15,000, $20,000 less because the adjuster knew the attorney handling the case was a settlement mill.

Even the settlement mill lawyers confirmed they were leaving clients’ money on the table. Former settlement mill lawyers reported that offers they received for comparable cases improved upon departing the settlement mill and joining a more conventional law firm.

You need to learn from this study.  If you or a loved one is hiring an attorney following an accident, I urge you to consider what a settlement mill firm might do to the value of your case. I also encourage you to purchase Professor Engstrom’s article for the $3.50 purchase price. If it helps you make an informed decision on hiring an attorney, it will be money well spent.

Many of our serious injury cases are the result of car or trucking wrecks on I-35.  Because it’s an interstate, with more cars and trucks traveling at higher rates of speed than typical roads, I-35 has more opportunities for drivers, construction workers, and others to be injured in accidents.  But it’s not a problem that’s limited to the Austin area.  The I-35 dangers start at the US-Mexico border in Laredo and continue up through the nation to the US-Canada border.  To try and bring a different perspective on these issues, I am teaming up with several other attorneys along the Interstate 35 corridor for a new blog series.  Over the next month or so, we’ll all answer typical questions that we are repeatedly asked by those injured in car or trucking wrecks, with an emphasis on issues as they relate to I-35.

The other attorneys that will be joining me on this little journey are:

Noble McIntyre and Jeremy Thurman from Oklahoma City, Oklahoma

Steve Lombardi from West Des Moines, Iowa

Mike Bryant from Waite Park, Minnesota.

One thing that excites me about this project is that it gives our clients and potential clients the opportunity to learn a lot.  Instead of getting one lawyer’s perspective on a question, you’ll have the benefit of answers from four or five different lawyers across the country.  And I always believe that the best way for personal injury victims to protect themselves from insurance adjusters and even other attorneys is to be as informed as possible.

I hope you enjoy the series.  If you have any questions you would like us to answer, please let us know.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Saturday afternoon, my family attended the funeral of my great-aunt.  After the funeral, some of the family members and guests were to attend the burial north of Austin.  Normally, funeral processions go without incident.  But not this one.  As the family’s limousine was passing through an intersection, a drunk driver ran a red light, hit the family’s limousine and then hit one of the motorcycle officers who was stopped directing traffic.  Several members of my family were hurt, and the officer’s leg was broken.

I suspect that it was not a coincidence that the wreck happened shortly after the conclusion of the University of Texas – Oklahoma football game.   I don’t know for sure, but I’m guessing the guy had enjoyed a few alcoholic beverages during the game and was happy to leave the party after a Longhorn win.

Don’t let yourself be that guy.  As an avid Texas sports fan, I’m not opposed to getting together and watching sports and having a beverage or two.  But, think before you do something stupid like drinking and driving.  You never know when you’re going to ruin someone’s day, or worse, their life.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

I’ve been on a bit of a blog hiatus because we’re in the process of re-designing the website,  but this story begs to be blogged about.

Today, a  Texas judge sentenced a 24 year old Humble woman to 30 days in jail and 10 years probation and ordered her to pay a $10,000.00 fine after her distracted driving resulted in the death of a 25 year old driver.  The woman was trying to get on an interstate on-ramp that she had missed just seconds after hanging up her cell phone.  Interestingly, the prosecutor and the defense both asked for probation, but the judge overruled them and ordered the jail time.

This is just the latest news about distracted driving.  Last week, the Department of Transportation hosted a summit on the dangers of distracted driving.  On the heels of the summit, President Obama entered an executive order directing federal employees not to text-message while driving.

While it’s unfortunate that we need jail sentences or summits to drive the message home, the more this topic is discussed, the more awareness people have of the dangers, and the safer the roads become.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

There have been a number of auto accident/safe driving stories over the last few weeks, but I just haven’t had time to write on them. Instead of ignoring them, I thought I’d put up a brief post touching on each story.

Austin is moving forward with a plan to ban text messaging while driving. The city council has agreed to the ban, and city staff is now charged with coming up with a statute. As you may know, text messaging while driving is one of our most popular topics with the following posts:

* In Study of Truck Drivers, Texting While Driving Proves To Significantly Increase Risks of Wrecks
* More Studies Confirm Texting While Driving Is Worse Than Driving Drunk
* Text Messaging (and Twittering) While Driving
* Car Wrecks -Text Messaging While Driving

Several new driving laws go into effect today. Namely, everyone riding in a vehicle must wear a seat belt, all children under the age of eight and under 4′9″ tall must use a booster seat, drivers in school zones may not use cell phones without a hands-free device.

Also today, it became easier for police departments around the state to take blood samples of suspected drunk drivers without a warrant. Previously, warrants were required unless the person was involved in a wreck that had a serious personal injury. As of today, the law allows warrantless searches when a person is involved in a wreck causing any injury, when the driver has a passenger younger than 15, or when the driver has prior DWI convictions. Interestingly, the APD did its first blood draw under the new law less than thirty minutes after the new law took effect. You can check out the blog of our friends at Sumpter & Gonzalez to get a view from the criminal defense bar.

Capital Metro’s commuter rail is once again delayed. We’ve been following the safety risks associated with the new light rail for some time now.

* Will Capital Metro’s MetroRail Ever Be Safe?
* What A Train Wreck! Literally — New Rail Safety Features Malfunction

That’s it for today. I’ll try and do a little better staying up to date.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Wrong-way drivers are a bigger problem than one would think. I’ve written a couple of blog posts about wrong-way drivers on the Austin Injuryboard blog, and Des Moines Personal Injury Lawyer Steve Lombardi has written extensively on his Des Moines blog with a 20 part series on the problem. But Austin has largely avoided the problem. Until now.

Last night 24 year old Alex Reyes made a horrible error, entering I-35 the wrong way just south of Austin and causing a head-on wrong-way collision. Reyes died at the scene, and the other driver was taken to the hospital by StarFlight.

At this time, it appears that alcohol did not contribute to the wreck. That’s unusual. Most wrong-way wrecks involve alcohol or elderly drivers.

These wrecks are a huge problem because of their severity. They are most often head-on collisions, and in most instances, involve fatalities. These wrecks are also a problem because they are difficult to prevent. From the driver’s perspective, most of the wrecks are caused by confusion because the driver is either drunk or under the influence of drugs or because the driver is elderly and confused. While some of these wrecks can be prevented by better road designs and some can be prevented by newer technologies, these wrecks are generally hard to prevent.

The wrecks are also hard to avoid from the victim’s perspective. The oncoming driver is obviously unexpected and there is often little time to react.

Nevertheless, there are some things that can be done. In his last post on the subject, Steve Lombardi has several tips on avoiding being a wrong-way driver and avoiding being a victim of a wrong-way driver. I recommend that everyone take three minutes to read his suggestions to help make the roads safer for all of us.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Apparently so. For trial issues, I occasionally read psychology based books, and I’m currently reading Dr. Robert Cialdini’s Influence: The Psychology of Persuasion. I’m probably late to the party on this one, but one thing Dr. Cialdini talks about in the book is the “Werther effect.” The Werther effect is based on the principle of social proof, that we use actions of others to decide on proper behavior for ourselves, especially when we view those others as similar to ourselves. The Werther effect is the phenomenon of copycat suicides; the rate of suicides increases dramatically following a well publicized suicide. That’s not really surprising; we’ve all heard of that.

The more surprising and disturbing findings are that publicized suicides are also good leading indicators for a rise in fatal airplane crashes and a rise in fatal car wrecks. As you can see from the chart (from the book), there is an amazing correlation.

Professor David Phillips, who coined the phrase Werther effect, is of the opinion that these increases in fatal crashes are all explained by copycat suicides. When people learn of another’s suicide, a number of people decide that suicide is appropriate for themselves as well. Some commit “run of the mill” suicides, but others, for whatever reason, don’t want their deaths to appear as suicides. Thus, the increase in fatal “accidents.”

But the correlation goes beyond mere numbers. Professor Phillips found that when news stories reported about single suicides, the number of single-victim crashes increased. When news stories reported about multiple-victim suicides, the number of multi-victim crashes increased. When news stories reported about a young person committing suicide, the number of crashes by young people increased. When news stories reported about an older person committing suicide, the number of crashes by older individuals increased.

Professor Phillips also noted that, following a report of suicide, the severity of wrecks increased. For example, the number of people killed in a commercial airliner crash is more than three times greater when the crash occurred a week after a publicized suicide. Likewise, victims of fatal car wrecks that follow a publicized suicide die four times more quickly than normal. Why? In a normal accident, those involved are trying to survive. In a suicide, those involved are trying to ensure that they don’t survive (thus perhaps hitting the accelerator a little harder instead of hitting the brakes).

I find this horrifying. In what we typically think of as a “copycat suicide,” only the deceased dies. But with Professor Phillips’ findings, it’s much more than that; the Werther effect can result in the deaths of countless innocent individuals.

What can we do about it? Like many psychological phenomena, being aware of the issue is half the battle. Dr. Cialdini notes that he changes his behavior after a high profile suicide. He is more cautious in the car and is more reluctant to travel by air. That’s probably good advices for all of us.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

Many of my fellow plaintiff’s lawyers are up in arms over a recent D magazine article purporting to tell the story of a claim and lawsuit after the author was involved in a “minor car accident.” The article, My $25,000 Fender Bender: How a minor car accident, a high-strung Ethiopian lawyer, a sick dog, an uncommonly attractive jury, and a 2-foot-high stack of legal papers took over my life, is basically the defendant’s indictment of the civil justice system after he hit someone and was sued. I don’t know whether the article is true or not (there are several things that make me question its total veracity), but even assuming it’s true, there are several things that all of us can learn.

I want to primarily discuss the process, because that’s what the author complains about, but first I wanted to address his claims about the plaintiff’s injuries. The author mocks the plaintiff’s “soft tissue” injuries when he simply “nudged” another car and neither car had any significant damage. I don’t mind the author believing that; most people do. Insurance companies have been amazingly successful at marketing this theory to people (even creating LIST (low impact soft tissue) and MIST (minor impact soft tissue) acronyms to help people remember).

But it’s just wrong. Most of the recent literature finds that due to the design of cars (stiffer bodies, stiffer seat backs, etc) there is no relationship between vehicle damage and injury. (Drs. Centeno, Freeman and Elkins, A Review of The Literature Refuting the Concept of Minor Impact Soft Tissue Injury, Pain Resource Management, Summer 2005; Robbins, Lack of Relationship Between Vehicle Damage And Occupant Injury, SAE 970494). Heck, always remember a person can herniate a disc by something as simple as sneezing. And the literature also shows that these soft tissue injuries are real. Even without broken bones or something that shows up on x-rays, much of the recent literature finds that 15-40% of patients with neck pain after a car wreck develop chronic pain. (Drs. Schofferman, Bogduk, and Slosar, Chronic Whiplash and Whiplash Associated Disorders: An Evidence-Based Approach, Journal of the American Academy of Orthopaedic Surgeons, Oct. 2007.)

But I don’t want to get into a fight about the science; I want to talk about what we can learn from the process.

First, and many of my plaintiff lawyer friends won’t be happy to hear this, but there is a lot of truth to the story. I don’t know if the parties involved were in a scam, but I’ll admit that there are far too many chiropractors and lawyers working together to “manufacture” claims. I’ve written on this disgusting practice numerous times, and I hope everyone can learn from the article to avoid the scheme. If you’re in a wreck, and you get a solicitation call from someone that’s going to help “refer you to medical care,” then run. Do not pass Go, and do not collect $200.00. Protect yourself and avoid these types of scams. Get a reputable lawyer; someone you can trust. Fortunately, the Texas Trial Lawyers Association lobbied hard last session to get new legislation passed limiting barratry so maybe there will be relief in sight.

Having said that, the author doesn’t take any responsibility for the conduct of his insurance company or his lawyer. As best I can tell from the article, the plaintiff had incurred $5,200 in bills for the medical care he received as a result of the wreck. At a mediation, the insurance company offered $500.00 to settle the case. This type of offer forces the case to go to trial. One of my favorite mediators in town says that as a plaintiff, the best offer you can get is $0 or the equivalent of $0 (like in this case) because then you know you have to try the case. There are no hard questions about settling.

In this case, that $500 offer from the insurance company forced the case to trial. The author concludes “my lawyer cost the insurance company $11,875 (95 hours at $125 per hour), and a couple of shady medical clinics got $5,300. The case occupied the Dallas County court and staff intermittently for two and a half years, and six jurors missed two days of work.” And he seems to be blaming the plaintiff. Take some responsibility. That $500 offer at the mediation from the insurance company forced the trial. The insurance company offer (and they systematically make low offers in cases like this) cost themselves the attorneys’ fees and cost the County court and staff time.

I hear you saying, “but with those shady medical setups, that $500 was reasonable.” Well, the jury didn’t think so. The jury awarded the plaintiff the full amount of his medical expenses, plus a little more. When we evaluate settlement offers, we always evaluate them against what we think a jury would do. In this case, the jury thought the $500 was wrong. The adjuster got it wrong. If the adjuster had offered a more reasonable amount, I’m pretty confident the lawyer would have stopped beating his chest and the case would have settled.

The author also didn’t seem to understand another of the jury’s decisions. In Texas, claims must be brought before the statute of limitations expires. In addition to filing suit before limitations expires, you need to either have the defendant served before the statute expires or show that you were diligent about serving the defendant. In this case, the defendant argued (and probably rightfully so) that the plaintiff wasn’t diligent in serving the citation. But the jury found diligence. Again, the author takes no responsibility, claiming that the jury didn’t understand the issue. But again, it’s his lawyer’s job to make sure the jury understands the issue. If the lawyer didn’t properly explain the charge to the jury, he has no one but himself to blame.

And I think we can also learn about framing a story. When the author told the lawyer that they had lost, the lawyer responded, “We lost but we won…The guy wanted $25,000 and got pocket change.” Notice the lawyer didn’t say, “The insurance company wanted to pay $500, but paid $5,990 (and over $11,000 to me) instead.” It’s all about how you frame the story.

What the article also doesn’t do is present the typical case.  For all the griping about those of us that are trial lawyers, most victims in our suits are hurt and have valid claims.  I’m waiting for D magazine to present the story of my clients that file suit and then are forced to endure frivolous defenses from the insurance company lawyers that are driving up the cost of the case or of the client making a claim on his own uninsured motorist policy and his own insurance company tries to take advantage of him.  Those cases are a lot more typical, at least in my practice, than the marginal claims.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.

This weekend, eight people in New York, including four young children, were killed when their minivan entered a highway going the wrong direction and collided with two other vehicles. It seems almost too bizarre to be true, but wrong-way drivers are more common than one would think. In fact, Sunday’s wrong-way wreck was the second of the day on that highway.

But the New York freeway is hardly alone. After doing a quick Google search, I found stories that this morning a wrong-way driver was arrested on I-164 near Evansville with a blood alcohol content almost twice the legal limit. And just last week, a woman near Pittsburgh was killed while driving the wrong-way and another fatal wrong-way crash occurred in Central Indiana.

And some of these wrecks hit close to home. Perhaps the most notorious area for wrong-way driving is the Dallas North Tollway, where at least eight people have been killed and numerous more injured in a series of wrong-way wrecks that have occurred since October 2008.

And Austin isn’t immune. In June, Austin had its own wrong-way fatality in a wreck along 290.

There is such a problem that the Texas Transportation Institute at Texas A&M did a study on the subject several years ago. For more information on the technical aspects of the wreck, you can read their proposal, Wrong-Way Driving on Freeways in Texas: Problems, Issues and Countermeasures.

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, LLP or to learn more about Austin Personal Injury visit http://www.civtrial.com/.