May I Fire My Texas Personal Injury Lawyer?

firedWe frequently get contacted by injured persons wanting to know if they can fire their personal injury lawyer.

The short answer is “yes, you can fire your personal injury lawyer even if you’re paying a contingent fee”, but you still may end up paying the first lawyer.  Let me explain.

Texas contingent fees are governed by a 1969 Supreme Court case of Mandell & Wright v. Thomas.    In that case, the Court stated that when a client fires a lawyer who is working on a contingent fee without having good cause, then the lawyer can still recover the full contractual fee.

This means that if you have hired a lawyer and agreed to pay him 40% contingent fee, decide to fire the first lawyer and hire a second lawyer on an identical 40% contingent fee, then you could be paying 80% of your claim for attorneys’ fees.  So yes, you can fire your lawyer, but if you’re not careful, you could end up paying for that decision.

Having said that, these issues can usually be worked out.  When you call us and ask us about firing your current personal injury lawyers, the first advice is almost always to schedule an appointment with the prior lawyer, sit down face to face, and see if you can’t work through your differences.  In many cases, disputes are often just a misunderstanding, and communication between you and the lawyer can help both of you move forward.

I realize that can’t work in all cases.  For a variety of reasons, you might not be able to work with your current lawyer.

In most cases, if you simply can’t work with your prior lawyer, then we can try to work something out with the prior lawyer so that you’re not being charged two fees.   Sometimes, the prior lawyer may agree to give up his rights to the fee and expenses.  Sometimes, the prior lawyer may agree that he won’t collect a fee, but he would like to be reimbursed for his out-of-pocket expenses incurred in your case.  And in other cases, we will work something out with the prior lawyer to share the fee so that you are only charged one fee.  The particular circumstances in your case will dictate what agreement can likely be reached.

However, there are times when we’ll talk to your prior lawyer, and we can’t work out any agreement.  Those instances are difficult.  Depending on the circumstances, we may advise you take various steps, including investigating whether you might want to file a fee dispute with the Austin Bar Association Fee Dispute Committee.  Regardless, if we can’t work something out with your prior attorney, we will typically not take your case until that issue is resolved because we don’t want to be part of a matter where you might be paying two fees.
So long and short, yes you can fire your personal injury lawyer, but the best way to do it is to do it as amicably as possible to minimize the risk that you might have to pay extra attorneys’ fees.

Posted on: November 19, 2014 | Tagged

What Are Symptoms Of A Concussion Or Brain Injury?

I often tell clients that they need to be on the lookout for brain injuries.   For some head injuries, the problems are obvious.  But in many cases, the problems are much more subtle.  As a result, many concussions or brain injuries go undiagnosed because a doctor doesn’t know you well and doesn’t see the symptoms.  Because of this, it’s important for you or your spouse or other family members to look for symptoms so you can convey that information to doctors.

Working on a case, I stumbled across this symptom chart from the Centers for Disease Controls that will help you identify potential brain injuries.  Hopefully, this will help you recognize problems so you can get the treatment and care you need.

Symptoms of concussion

Personal Injury Claims: What If My Medical Bills Exceed The Policy Limit

I received this question from a potential client the other day.

Whether you have a car wreck, on-the-job injury, slip and fall, or any other personal injury claim, your claim will usually be paid by an insurance company.  Unless you have a claim against a large commercial business (think Walmart), then you’re only going to be able to recover from the defendant’s insurance policy.Unfortunately, insurance policies don’t pay unlimited amounts.  Policies come with a “policy limits”, the maximum amount that the insurance company will be liable for in any claim.   Except in rare circumstances, that limit is the most the insurance company will ever be required to pay, no matter how bad you’re hurt.  (For a more detailed article on policy limits, click here.)

In some circumstances, a client’s medical expenses can exceed the policy limits.  What do you do then?

Generally, there are two potential courses of action.  First, if you health insurance, then health insurance will pay most of your medical expenses.  Unfortunately, you typically have to reimburse your health insurance company for the amounts that it has paid.  When these medical expenses exceed the policy limits, we will typically negotiate the amount you have to pay back to the insurance company so that we can minimize that amount and put as much money as possible back in your pocket.

Alternatively, if you don’t have health insurance, then those bills are likely still outstanding.  In that case, we’ll negotiate directly with the medical providers.  We can usually work something out.  In these cases, the medical providers usually know, especially when the bills are high, that people don’t have the financial resources to personally pay large healthcare bills.  Thus, they know that the best way to get it is out of a settlement.  So often, we’ll be able to negotiate a resolution where the medical providers are accepting pennies on the dollar.  The medical providers know that something is better than nothing, even if that something isn’t very big.

There are, of course, other ways of solving this problem, but these answers settle most of the problems.

Posted on: September 2, 2014 | Tagged

Don’t Let Facebook (or Twitter, or Instagram, or other social media) Ruin Your Personal Injury Claim

facebookAn increasing trend in personal injury litigation is for insurance companies and their lawyers trying to gain access to your social networking sites.  Sometimes this includes the use of trickery to get access to your information.    Once there, they’ll take statements or photos entirely out of context to try and argue that you’re not as hurt as you claim.

I’ve never had a client harmed by social media, but I don’t want you to be the first.

Some attorneys suggest that their clients cease all use of social media while the client’s case is pending.  While that would be nice, I also think it’s unrealistic.  I know social media has become a part of culture and life.

So if you’re going to continue to use social media, here are a few guidelines that can help you not ruin your case.

1.  Don’t discuss your case in any fashion on a social networking site.

2. Don’t mention activities you’re involved in; no talking about hobbies, vacations, etc.

3. Don’t post photos of yourself.  Trust me, they’ll be taken out of context in ways you can never imagine.

4. Keep your privacy settings strong.

5. Don’t allow a new “friend” unless you absolutely know who they are and trust them.  There are repeated stories of insurance company representatives trying to “friend” injured persons to get access to the injured persons’ social media sites.

These are just general guidelines.  If you are injured and want more specific advice, feel free to call us or contact us.

How Long Will My Personal Injury Case Take?

This is a common question we hear, and it’s hard to give a great answer because the potential span is so large depending on a number of factors.  For instance, we might resolve some cases within a few months of opening the case, and we might resolve some several years after opening the case.  But the timing is all dependent on the various factors in the case.

The first big factor is how long it takes you to get better.  We generally don’t want to resolve a case until you’re either healed or the doctor tells you that you’re not getting any better.  We don’t want to be in a situation where we have settled the case and then you turn out to be hurt worse than we thought.  So the first factor is how long it takes you to heal.  Some clients heal in a couple of months, and for some clients, they don’t heal for a couple of years.

The second main factor is whether we have to file suit.  If we can resolve a claim without filing a lawsuit, then the case is usually finished much faster than having to pursue even a simple claim in a lawsuit.  Lawsuits are slow and time-consuming so a lot of times the lawsuit process is the cause of the delay in your case.

There may also be a number of other factors, such as whether the other party has insurance, how much insurance the other party has, how much the other party cooperates, etc.

While I wish I could promise you a quick, tidy process, lawyers who do that aren’t telling you the truth.



Posted on: July 28, 2014 | Tagged

Serious Personal Injury May Happen While Texting And Walking

No doubt you have seen the video of the woman texting and falling into a fountain at a shopping mall. While the video was funny and no one was serioiusly hurt, the ramifications for texting and walking have the potential to be fatal.

It used to be that everyone got to where they were going by just walking there. If they had anything to say to the person when they arrived, that was when the conversation took place. Cell phones had not yet been invented, and no one seemed to miss being out of touch with others. It was just the way life was back then. Now, with the advent of cell phones that do just about everything, staying in touch is not only easy, it may also kill.

Many people do not see the harm in texting while walking. After all, they are safe on the sidewalk, mall or wherever they happen to be headed. But, are they? Consider the case of the young teen who was texting her boyfriend about their planned date, when she walked out between two parked cars, right into the path of an 18-wheeler. The cell phone survived the impact. The young girl did not. Was her life worth texting dangerously?

What about the case of the young man who was walking down the stairs at work and texting his buddy about their weekend plans? Because he was not paying attention to where he was walking, he missed the last two steps, fell hard and hit his head on a cement floor. His cell phone survived the impact. He sustained traumatic brain injury. Was his forever altered life worth texting dangerously?

If you do not think texting and walking is a big deal, because maybe, nothing has ever happened to you, consider the emergency room statistics across the U.S. that show over 1,000 pedestrians have needed emergency medical care because of texting and walking accidents. Each year, the numbers go up, not down. While texting and walking is not a smart thing to do, texting and driving is markedly worse, as you can kill someone else by negligently not paying attention to the road. Be smart and above all, be safe.

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

Personal Injury Claims: What Is Paid v. Incurred?

One of the most common fights we’re having in personal injury claims is known as the paid v. incurred fight.

In 2003, the legislature passed a law limiting damages in personal injury cases as follows:

In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

What does this mean? 

In many cases, there are two different costs for medical care:  there is the list price and  the price that the medical provider accepts as full and final payment for the bill.

While it can come up in a number of different situations, the typical situation involves health insurance.  One of the benefits of your health insurance is that the insurance company has negotiated reduced rates with various medical providers.

For example, a hospital may have a list price of $10,000.00 for a procedure, but the insurance company negotiated with the hospital so the hospital agrees to accept $5,000.00 as payment in full.

Sometimes this benefits the insurance company — they get to pay less for your procedure.  But many times it benefits you.  For example, I have a high-deductible insurance policy — my company doesn’t pay until we’ve spent $5,000.00 for a year to meet our deductible.  But even when we haven’t met our deductible, the insurance company still processes the charge and reduces it so that I only have to pay the agreed upon reduced rate.

Before the 2003 law, injured people got the benefit of their insurance.  When we asked the jury to award medical expenses, the jury was asked to award the entire $10,000.00. 

But then the law was passed, and because it was worded so poorly, there was a great debate about what it meant.  Finally, the Supreme Court issued a case in July of 2011 clarifying the meaning.  And they held that an injured person can only ask the jury for the reduced amount that was actually paid to the medical provider.  In essence, a defendant now gets the benefits due you because you had the foresight to obtain health insurance.

This ruling also has an effect on the value of your claims.  In some cases, there is little we can do to avoid application of the rule, but in some cases, we can use some strategies to try and maximize your recovery.

If you’ve been injured, you should make sure your lawyer understands these issues and how to maximize your recovery in light of these issues.

Texas Uninsured/Underinsured Motorist Claims: Does Your UM/UIM Insurance Cover You While Riding A Bicycle Or Walking?

Far too few personal injury lawyers are aware that if you (or perhaps more importantly, your children and other family members) are injured by an uninsured or underinsured driver while riding your bicycle or walking  (or doing most anything else), then you can probably make a claim against your UM/UIM coverage.  

When looking at your own policy  (where you are the named insured), the focus is not on what you were doing, but whether you were hit by an uninsured/underinsured motorist.  One of the best quotes about this comes from the case of Greene v. Great American Insurance Company, a 1974 opinion from the Beaumont Court of Appeals:

There is no requirement that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.  The uninsured motorists protection covers the insured and the family members while riding in uninsured vehicles, while riding in commercial vehicles, while pedestrians, or while rocking on the front porch.

I want to add two clarifications about this.  First, this analysis only applies to your own UM/UIM insurance.  If you’re looking to make a recovery on UM/UIM insurance bought by someone else — for example, your employer, someone whose car you’re in, etc. — then this analysis doesn’t apply.

Second, the potential coverage isn’t quite as broad as the case above indicates.  Because of exclusions, there might be some very specific situations where coverage doesn’t apply.  Because policies are so different, you’ll have to look to your policy.

But those specific exclusions don’t change the general answer that, “Yes, your uninsured/underinsured motorist coverrage will cover injuries to you while you’re biking or walking” or rocking on the front porch.

Is Your Personal Injury Lawyer A Member Of The Texas Trial Lawyers Association And The Capital Area Trial Lawyers Association?

A problem for potential clients is knowing what to look for in a potential personal injury lawyer. One thing I always advise is to find out whether your lawyer is a member of the Texas Trial Lawyers Association and, if in Austin, the Capital Area Trial Lawyers Association.

The Texas Trial Lawyers Association is the largest collection of plaintiff’s personal injury lawyers in the state. The Capital Area Trial Lawyers Association (of which I am secretary and on the executive committee) is our local chapter of Austin personal injury lawyers.

The great thing about these organizations is the attorneys’ willingness to share and help each other out. The continuing education courses are among the best I’ve ever attended. But the jewel of each may be the listserves that each operate. Hundreds of lawyers around the state are continually willing to share their knowledge and experience to help others. The listserves of each are among the best ways I know to stay abreast of changing issues of law, trial techniques, etc.

Yesterday was a prime example of the potential value of TTLA/CATLA membership and the listserves.

I had a hearing in a North Texas county involving an uninsured/underinsured motorist case. The issue at the hearing was whether I was entitled to take a deposition of a representative of the insurance company.  I had requested the deposition, and the insurance company had filed a motion with the Court arguing that it was not required to provide the deposition.

When we arrived for the hearing, the Court informed me that he had read the motion and that it was his understanding from his practice that the insurance company was not required to provide the deposition.  I argued that the case was identical to the case of In Re Garcia, a 2007 opinion from the San Antonio Court of Appeals, where the Court held that the trial judge had made an error by not allowing the deposition.  I prevailed.

The amazing thing about the hearing was that neither the Judge nor the opposing attorney, who routinely represents insurance companies in these types of cases, had heard of the In Re Garcia case.  But this is a case that is routinely discussed on both the TTLA and CATLA listserves.

What does that mean to potential clients? Even though this case is four years old, most lawyers aren’t using the case to get depositions in these uninsured/underinsured motorist cases.  But TTLA and CATLA members are.

This is just one example of many on how TTLA and CATLA benefit lawyers and their clients.  We continually collaborate on hot-button issues to give each other the opportunity to make the best arguments that can help our clients.  (For example, I have a paper on uninsured/underinsured motorist coverage I prepared for a speech to the Capital Area Trial Lawyers that I’ve probably shared 50 times with lawyers around the state to help make sure they are making the best arguments for their clients.)  The ways we help each other are too numerous to list.  We bounce ideas off of one another;  we help each other evaluate potential settlement values of cases; we help each other with suggestions of which experts might be good  (or not good); we share with one another depositions of defense experts to help each other prepare for our own depositions.  The list goes on and on.  And in the end, we provide our clients better representation because we’re members of the organizations.

While there isn’t any guarantee that a TTLA or CATLA member will be a great lawyer (certainly, I’ve fielded questions from lawyers in our organizations that puzzled me), I think the lawyers in the groups have a better opportunity, and hiring mem bers of those organizations is probably a better test for potential clients than just hiring who has the best yellow pages ad or television commercial.

Medicare: A Personal Injury Problem Gets Worse

I’ve written before about my frustrations in dealing with Medicare.

When our clients have Medicare, we have to contact Medicare, find out the amounts they paid, and then negotiate reimbursements with them.  This is a painstaking process that involves several steps.

First, we notify Medicare that our clients are asserting personal injury claims.

Second, the MSPRC (a division of Medicare) issues a Rights and Responsibilities letter. 

Third, MSPRC starts searching Medicare claims to find claims it filed relating to our clients’ personal injury suits.

Fourth, Medicare sends a Conditional Payment Letter that identifies the claims it believes that it paid that relate to our clients’ injury claims  (in other words, it excludes payments for any care that isn’t related to the clients’ injury claims).  This letter is supposed to come within 65 days of the issuance of the Rights and Responsibilities letter.  Often, it takes longer. 

Fifth, we may have to go back and forth with Medicare asking them to remove any charges that we think are unrelated to our clients’ claims.

Sixth, we settle the case and send Medicare information regarding the settlement.

Seventy, Medicare takes that information and uses a formula to come up with a final number it believes it is due, and it issues a Demand Letter for that amount. 

 At best, it takes 6 weeks to a couple of months.  In some cases, it can take much longer. 

Today, I was looking at the MSPRC website for a form, and I come across this news:

Alert: Issuance of the Rights and Responsibilities (RAR) and Demand letters has been temporarily suspended

Issuance of the Rights and Responsibilities (“RAR”) and Demand letters has been temporarily suspended while these letters are under review. The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made.

So as of now, Medicare has stopped the process, and it doesn’t appear that there is a way to resolve future cases.  I’m not sure how long this has been posted on their website, and I’m not sure how long it will last.  But rest assured, it will only make an already time-consuming process worse.

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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