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

Baseball, Hot Dogs and Injuries?

hotdogI love baseball, and I like hot dogs, and I was surprised to see them intersect in a personal injury case. But yesterday, I saw that they did.

Yesterday, the Missouri Supreme Court held that the “baseball rule”, which protects teams from being sued for fan injuries caused by events on the field, does not protect sports teams when their mascots cause injuries.

In this case, the Kansas City Royals mascot was throwing hot dogs into the stands.  One of the hot dogs hit John Coomer in the eye, resulting in him having two surgeries to repair his damaged eye.

Originally, the jury was instructed that being hit by the hot dog was an inherent risk of attending a sporting event.  But the Missouri Supreme Court noted that there is nothing inherent about wayward mascots at sporting events.  The Court noted that mascots aren’t a part of baseball; we’ve played baseball a long time without mascots throwing hot dogs, and we can continue baseball in the future without wayward hot dogs.

Legally, I have to think the court is correct.  Mascot shenanigans aren’t an inherent part of the game.  And while the hot dog incident almost prompts a chuckle, I’m sure no one would be laughing if a mascot did something more egregious, such as causing a golf cart to explode.  Those are not inherent risks of our national pastime, and mascots need to be careful, like everyone else at the game.

Former Texas Supreme Court Justice Sued — When Can A Person Be Sued For Providing Alcohol To Others? (An Important Question For Footall Game-Watching Parties)

  In yesterday’s Austin American Statesman, Chuck Lindell wrote an article describing a lawsuit filed against former Texas Supreme Court Justice Tom Phillips.  The lawsuit alleges that Phillips and his wife allowed a party to go on at their home where minors were served alcohol and that one of the minors was killed in a one-car wreck on the way home from the party.

Because Texas football season — and hundreds of game-watching parties — starts tomorrow, the question of “When can a person be sued for providing alcohol to others?” is timely.

And there are generally two types of cases.  The type of case that is involved in the Phillips case (and would be involved in most game-watching cases) is described as “social host” liability because the cases seek to hold private individuals liable for providing alcohol to their social guests.  These types of cases are tough.  In most instances, a social host will not be liable for providing alcohol to a person who later causes an accident.

There are two exceptions to this general rule.  The first, as in the Phillips case, involves minors.   Adults (as long as they’re not the minor’s parents or guardian) can be liable for damages if they knowingly provide alcohol to the minor or allowed the minor to be served alcohol on premises the adults own or lease.  (You can read the full statute here.)

The second exception is more of a “maybe” exception because the law isn’t as settled.  But injured persons may have a claim against social hosts if the social hosts take charge of a person and then are negligent in the way that they take charge of someone.  The best example is a host who takes a driver’s keys because the driver is too drunk to drive, but then decides to put the driver in the car and let the drunk drive off.   As you might suspect, these situations are rare.

The second category of cases are called dram shop cases, and they involve claims agains commercial providers of alcohol, such as restaurants and bars.   These entites may be liable for damages caused by the drunk driver when they serve alcohol to a person when it is apparent that the person was intoxicated to the extent that he presented a clear danger to himself or others.  These are the most common cases against providers of alcohol.  There are a number of special details, and I may discuss those in a post next week.

(Image courtesy of vizzual.com on flickr)

San Antonio Jury Hits Akin Gump With $72.6 Million Verdict

Last Thursday, a San Antonio jury returned a $72.6 million dollar verdict against Akin, Gump in a case where the plaintiff alleged that the patent lawyers failed to properly obtain patents on a device that the plaintiff invented.

The verdict is another in the trend of larger verdicts against large law firms.  The American Bar Association publishes a semi-regular survey of legal malpractice claims as reported by legal malpractice insurers.  In September 2008, the ABA’s latest version came out, covering claims from 2004-2007.   The previous study looked at claims from 2000-2003.  One of the more stunning statistics in the study is that claims that were in excess of $1 million doubled from the 2003 survey to the 2007 survey.  It’s my hypothesis, not mentioned or addressed in the study, is that one of the reasons is more successful claims against mega-firms.

Interestingly, Akin, Gump is also a party to a legal malpractice case (Akin, Gump v. Nat’l Development and Research Corporation) currently before the Texas Supreme Court, and the ultimate decision promises to be critical to the legal malpractice jurisprudence of our state.

Texas Debates Whether Attorneys Must Disclose Legal Malpractice Insurance Coverage

Today, a Supreme Court of Texas task force is set to vote on a proposal that would require Texas lawyers to disclose to potential clients whether the lawyers carry legal malpractice insurance.  Earlier this week, California took another step to adopting a similar requirement.

As a legal malpractice attorney, I think the proposal is a great idea.  Potential clients have the right to know whether the attorneys they are hiring have the financial ability to make them whole should the attorney make a mistake.  As attorneys, we encourage the public to make sure that their tree trimmers, contractors, mechanics, etc are bonded and insured before they’re hired.  Certainly, clients of attorneys would be interested in the same information.

I also think that the duty to disclose the lack of malpractice insurance may exist due to the Texas Deceptive Trade Practices Act.  A business (including lawyers) violates the DTPA when the business fails to disclose information concerning services which was known at the time of the transaction if the failure to disclose was intended to induce the consumer into a transaction into which the consumer would not have entered had the informaiton been disclosed.  Because insurance is important, I think there’s a potential duty to disclose the lack of insurance under this statute.

However, it is not a slam dunk.  There are several respected commentators that are against these types of rules.  For more information on those positions, you can check out the following:

Personal Injury Law Round-Up #62

Things are hopping here as we continue to prepare for a trial so this week’s edition is brief. On tort “reform”…….

One of the big tort “reform” stories of the week has been Dennis Quaid’s testimony on preemption before Congress. Unfortunately, in our society, causes often need celebrities to act as their champions before there is any traction to search for solutions (eg Lance Armstrong and cancer, Bono and extreme world poverty, and Michael J. Fox on Parkinson’s).  It now appears possible that Dennis Quaid is willing and able to step into that role.  You can watch the video of the testimony or read the transcript.  There are numerous posts on the story, including posts at DC Dicta, the Huffington Post, the Pop Tort, the Maryland Injury Lawyer Blog, and theInjuryboard national desk.

Along those same lines, Bill Childs reports that the plaintiff in the Six Flags Kentucky Kingdom severed feet case traveled to Washington to testify on amusement park safety.

And locally, the Texas Supreme Court continues to receive negative press.

On to the litigation news…

In Texas, a federal court holds that the rape case against Halliburton isn’t covered by an arbitration agreement (though the plaintiff’s Title VII claims are).

Staying here in Texas, an appellate court reversed the Garza/Vioxx verdict.  There’s a little more information in Don Cruse’s Supreme Court of Texas Blog, MassTorts, the WSJ law blog and How Appealing.

Staying in the drug arena, Bayer is pulling all remaining Trasylol.

In South Dakota, even Congressmen aren’t immune for causing auto accidents.

On the settlement side, there were more settlements in the Rhode Island nightclub fire. I am most impressed with Eric Turkewitz’s in-depth analysis of the Jet Blue toilet lawsuitand followup.

And for this week’s miscellaneous posts….

John Day has What It Takes To Be A Great Trial Lawyer, part 16.

Thanks for reading and have a good weekend.

Brooks Schuelke

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

Another Texas Supreme Court Victory for Big Business

Last Friday, the Texas Supreme Court issued another opinion where it opted for big business over consumers. The question in Perry Homes v. Cull was whether the Culls’ claim was properly submitted to arbitration. In the case, the Culls filed suit against Perry Homes for defects in their house. Fourteen months later, after completing discovery and on the eve of trial (of which the defendants sought to delay), the Culls asked that the case be submitted to arbitration. The trial court agreed, and the case proceeded in arbitration, where the Culls received a judgment of $800,000.00. Perry Homes then appealed saying that the Culls had waived their right to arbitration, and the majority of the Supreme Court agreed.

While reading the facts on their face makes it appear that the ruling was correct, I don’t think it was. If you compare this case to other decisions where the plaintiffs accused the defendants of delaying before seeking arbitration, you’ll find little difference in the conduct, but a completely different result.

There are two elements that a party must prove to establish that the party seeking arbitration waived its rights to arbitration. First, the party opposing arbitration must prove the party seeking arbitration has substantially invoked the litigation process prior to asking for arbitration. And second, the party opposing arbitration must show that it was prejudiced by the other party’s invoking of litigation.

The issue in this case is whether Perry Homes was prejudiced by the Culls’ actions. When reaching this decision, the majority didn’t point to any specific evidence offered, but seemed to say “Gosh, it’s just inherently unfair to delay so long or to invoke the discovery process and then ask for arbitration.” However, the Court has specifically rejected these types of arguments in the past when finding that defendants didn’t waive their rights to arbitration.

In 2006, the Supreme Court handed down the decision of In Re Vesta Insurance Group. In that case, the defendant filed a Motion to Dismiss, sent written discovery, and took 4 depositions. After two years of going through litigation, the defendant then asked that the case be sent to arbitration. The court held that this long delay (longer than the Cull case) and the sending of discovery were not enough to show that the plaintiff was prejudiced by the defendant’s invoking of the litigation process, and the case was sent to arbitration.

The Court has also rejected the idea that the notion of engaging in discovery is enough to show prejudice because many arbitrations allow discovery proceedings. In the 1998 decision of In re Bruce Terminix Co., the Supreme Court said, “Even substantially invoking the arbitration process does not waive a party’s arbitration rights unless the opposing party proves that it suffered prejudice as a result.” In rejecting the plaintiff’s argument that it was prejudiced by discovery, the court said that being forced to responded to written discovery “does not establish prejudice because AAA rules allow arbitrators to arrange for ‘production of relevant documents and other information.’”

In 1996, the Court again addressed arbitration in the case of EZ Pawn Corp. v. Macias, and the court found that the plaintiff didn’t prove prejudice despite a year delay by the defendant in invoking arbitration and despite the defendant sending written discovery.

For all the reasons that the Supreme Court found that plaintiffs didn’t prove prejudice in these cases, the Court should have found that Perry Homes didn’t prove prejudice.

However, even more important than the actual substance may be the tone of the opinions. In each opinion where the defendant sought arbitration, the Court engaged in a rigorous analysis to show how the plaintiff’s proffered evidence didn’t support a claim of prejudice. In the Perry decision, there was no such rigorous analysis and the majority seems to assume that the delay and discovery caused prejudice.

Clearly, I think that if the Court had applied the standards and analysis set out in their prior opinions, they would have held that the trial court properly sent the case to arbitration.

I will also give credit where it is due. I have often expressed my displeasure with several members of the court, but Justices Johnson, Jefferson, Green and Willet all dissented, finding that Perry Homes didn’t fulfill its burden to show prejudice.

Now, I will add that the most interesting or sensationalist part of the case involves the actual parties. Bob Perry of Perry Homes is one of the biggest contributors to the Republican party, both in Texas and nationwide. All nine judges on the court have each received contributions totaling more than $260,000 from Perry’s family. Perry is also a major donor to Texans for Lawsuit Reform, which has given an additional $185,000 to the justices. Several of the posts below touch on that relationship.

This case has received a lot of publicity, and you can find more discussion at the sources below:

Personal Injury Law Round-Up #51

I’m not a math genius, but I am smart enough to figure out that next week will be Personal Injury Law Round-Up #52, which probably means the one year anniversary of the Personal Injury Law Round-Up. I wanted to thank and congratulate Eric Turkewitz for starting the round-up. In his honor, I’ll learn how to insert one of his cute round-up graphics so week 52 gets the appropriate flair it deserves.

And now, on to tort reform issues…

The Riegel case continues to be a big story in the blogosphere. Tony Sebok looks at what Riegel signals for future preemption cases. (Via TortsProf). Professor Richard Nagareda of Vanderbilt has his thoughts on the decision. (Via Mass Torts). Law and More looks at what Riegel leaves unanswered. And the SCOTUS Blog has their reviews. And, of course, the Drug and Device Law Blog has their continued coverage.

I’m not sure this is litigation news or tort reform news, but the other big story of the week was the Exxon Valdez punitive damage case at the US Supreme Court. SCOTUSBlog has a complete run down of the argument and issues. The WSJ Law Blog also chimes in (and their post quotes Michael Sturley, a professor at my own University of Texas school of law —- Hook ‘em). And Blawgletter has the different perspective of how punitive damages are relevant to contingent fee lawyers. For a complete round-up of articles and posts, check out How Appealing.

Here in Texas, several plaintiffs, including former Dallas Cowboy Ron Springs, have filed suit to challenge the constitutionality of Texas’s medical malpractice caps. And I wanted to provide this second link to the story from Pravda online, because really, how many times are we going to have the chance to link to Pravda. (I’m sure the “tort reform” supporters will have some witty comment about this story appearing in Pravda, but I’ll leave that to them.)

Speaking of caps, the Oregon Supreme Court has upheld its cap on wrongful death damages.

And staying in Texas, Austin appellate attorney Todd Smith highlights a story about the Texas Supreme Court entitled “Justice Delayed.”

Overlawyered has another story of plaintiff’s lawyers gone bad.

And to be fair, Law.com has the story of defense lawyers gone bad as a Mass US Dist Court judge fined Medtronic $10 million for behavior of its trial lawyers during litigation. The Court noted that “The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit.” Just another story to go in the frivolous defenses file.

And finally, for all those advocating that we should follow the English system, note that an English court has allowed an addicted gambler to sue his bookmaker for personal injuries.

And on to litigation news…

Bill Childs reports on an Alaskan village that is suing various energy companies for global warming. The village has had to relocate due to flooding.

A Kuwaiti contractor is fighting the $4.9 million judgment entered against it on jurisdictional grounds. These line of cases have the potential to really change the law on jurisdiction.

A lawsuit by West Virginia smokers will proceed against tobacco companies.

A California jury rejected a $21 million suit filed by a US District Judge following an escalator accident. This story is really only noteworthy because you don’t get many suits with US District Judges as plaintiffs.

Staying in California, the California Injury Blog reports on a patient who burned to death in a nursing home.

Just a few miles down the road from us, San Antonio, Texas personal injury lawyer Beth Janicek reports on a study that finds staffing effects survival rates.

Eric Turkewitz asks whether the lady who passed away during flight would have a claim.

In Philadelphia, a jury awarded a woman $12 million in a failure to diagnose breast cancer case.  The story doesn’t have the breakdown of what the damages were for, but I’m guessing the result would have been very different in Texas.

And on to the miscellaneous news…

Another lawsuit over BAR/BRI prices.

Blawg Review #148 is at Blawg IT.

And that’s it. Thanks again for reading this week.

Brooks Schuelke

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

Texas Supreme Court: Justice Delayed

Texas Watch, a bi-partisan advocacy group working to improve consumer and insurance laws for Texas families, has issued a new report about the increasing backlog of cases at the Texas Supreme Court.  The report, entitled Snail’s Pace: An Analysis of the Texas Supreme Court’s Growing Backlog, made the following findings:

  • The Court took an average of 852 days (2.3 years) to dispose of a case in the 2006-2007 term, an increase of 24% from the 2004-2005 term.
  • Justices took an average 416 days to write an opinion after the Court has heard oral arguments. This represents a 31% increase from 04-05 to 06-07.
  • Justices Wainwright and Johnson have fallen behind their colleagues’ output by routinely taking longer to write fewer opinions.
  • The Court’s backlog has steadily increased from 14 in fiscal year 2000 to 60 in FY2007, an increase of 328%.
  • The Court has left 72 cases pending for more than a year. An additional 31 cases have been pending for more than 2 years.
  • Dallas news station WFAA ran their own story based on the report.

    Thanks to Todd Smith for his link to the WFAA story.

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

Justice Medina’s Saga Continues, plus more Supreme Court drama

As we have previously reported and updated, Texas Supreme Court Justice David Medina and his wife were indicted in connection with an alleged arson event at their home.  At the District Attorney’s request, the indictments were dismissed.  But the story appears to be far from over.  Today, the grand jurors are stating that they will re-urge the investigation when a new grand jury convenes in February.

But Justice Medina isn’t the only Texas Supreme Court Justice feeling the heat.  Justice Paul Green is now the subject of a complaint with the Texas Ethics Commission for allegedly using campaign funds improperly.

It should make for interesting election year.

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

Perlmutter & Schuelke, PLLC 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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