When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states’ rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren’t the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

In 1995, we had TortReform1, which was supposed to “level the playing field” for plaintiffs and defendants.  People continued to sue bad actors.  Good cases were won and bad cases were lost, which is how it should be.

But that was not enough for Big Insurance and the Medical Lobby.  Their big bucks brought you TortReform2 in 2003.  Now, your right to sue for medical, hospital or nursing home neglect are destroyed.  If you are assaulted (or worse) at someone’s business, with nothing done to improve safety after 100 prior assaults just like yours, the owner can blame the criminal and get off paying you nothing.  If you or your employer bought health insurance that discounts the cost of your treatment, guess who gets the benefit of that bargain in a lawsuit?  The person who caused your injury (and his insurer).

All those gifts to Big Insurance were not enough.  Now we have TortReform3.  This aims to be the kill shot for your right to a day in court.

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.

Lawmakers are proposing a When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states’ rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren’t the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

In 1995, we had TortReform1, which was supposed to “level the playing field” for plaintiffs and defendants.  People continued to sue bad actors.  Good cases were won and bad cases were lost, which is how it should be.

But that was not enough for Big Insurance and the Medical Lobby.  Their big bucks brought you TortReform2 in 2003.  Now, your right to sue for medical, hospital or nursing home neglect are destroyed.  If you are assaulted (or worse) at someone’s business, with nothing done to improve safety after 100 prior assaults just like yours, the owner can blame the criminal and get off paying you nothing.  If you or your employer bought health insurance that discounts the cost of your treatment, guess who gets the benefit of that bargain in a lawsuit?  The person who caused your injury (and his insurer).

All those gifts to Big Insurance were not enough.  Now we have TortReform3.  This aims to be the kill shot for your right to a day in court.

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.

Lawmakers are proposing a  “Voluntary Compensation Plan,” which allows companies to set up “Plans” 90 days after causing death or injury to two or more people.  BP can blow up half of Texas City and be immune from liability beyond whatever “Plan” it chose to adopt.  The statute has no requirements for what the plan covers and punishes you if you attempt to go outside the plan.  And, to make sure you are unable to find an attorney to help you, attorney’s fees are capped at 5% of what you recover from a Plan.  Have you ever fought with a “Plan” over benefits?

Also being proposed is a British-style “loser pays” law that will make a plaintiff who loses a lawsuit and his or her attorney liable to pay the winner’s attorney’s fees, litigation costs, travel expenses and expert witness fees.  This only applies to plaintiffs.  Defendants are never required to pay the plaintiff’s costs. If this passes, anyone who is injured due to the negligence of someone else will risk financial ruin if he or she files suit.

So what can you do?  You can get involved.  Write your state legislator and state senator and tell them you care about your constitutional rights, including the right to have your day in court.  Stand up for the Constitution!

You can also get involved through Texas Watch, “a non-partisan citizen advocacy organization dedicated to ensuring that corporations and insurance companies are accountable to their customers.”  Alex Winslow, the director of Texas Watch, is a corporate watchdog.  If you are upset that your rights have been taken from you, contact Texas Watch and check out their Take Action and Share Your Story links.

If you have a story to tell, Texas Watch wants to hear it.  You can also
email Texas Watch.

You have been victimized by tort reform if:

• You have been seriously injured by negligence, but no lawyer will take your case.
• You have been a victim of medical or hospital negligence.
• You have suffered an injury from a drug.
• Your valid legal case was lost because of a technical ruling by a court.
• You lost a case on appeal that you won at trial.
• Your legal case was settled for less than your damages.
• You have been abused by the worker’s compensation system.
• Any of the above things has happened to a family member.

And you are a potential tort reform victim if:

• You drive or ride in a motor vehicle.
• You shop at a store or park in a parking lot.
• You see a doctor, go to a hospital or take medicine.
• You have an insurance policy of any kind.
• You buy or rent a house or apartment.
• You have a job that exposes you to any risk of injury.

Preserving the jury system is not just for Democrats, and it is not a liberal idea.  The folks who pay for tort reform have no agenda other than making sure you cannot sue them. They give most of their money to Republicans, but they support Democrats, provided those Democrats agree to vote against the jury system.

There is nothing inherently conservative about giving away your legal rights to serve the interests of corporations and insurance companies.  Texas Watch has formed Texans for Liberty & Justice, a project where Constitutional conservatives can work to support the right to trial by jury.

Stand up for your Constitutional rights!

Charlie Sheen challenges the notion that there is no such thing as bad press.  With the Middle East erupting in protest while Congress and state legislatures skirmish over the economy, the bad behavior of one TV star should not amount to a hill of beans in this world.  And yet Sheen is a huge story, with his number of Twitter “followers” skyrocketing.  Why?  How many times have you heard the term “train wreck” in connection with Sheen?  Are we that bored?  Do we enjoy watching someone’s life burst into flames?

A larger question is whether any good can come out of Sheen’s debacle.  Many ordinary people are afflicted with substance abuse and mental illness.  Will Sheen highlight the horror of those conditions and their effects on children, coworkers and others? Congresswoman Giffords and our wounded veterans bring attention to Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD).  Will we learn something more important from Sheen’s circumstances than whether Two and a Half Men returns to the air?

People severely injured in accidents frequently experience TBI, PTSD, anxiety and depression.  Family courts are filled with victims of mental illness, with young children subjected to unstable, delusional or sociopathic parents.  Depression among the elderly is rampant.

Charlie Sheen can pay for repeated visits to rehab and a string of psychiatrists.  The vast majority of Americans with mental illness or substance abuse cannot afford care.  Mental health treatment is excluded or severely limited by most insurance plans.  Injured workers cannot find a psychiatrist who will accept worker’s compensation.  Public hospitals and clinics are overburdened and cannot begin to cope with the demand.  Commit someone with a serious mental illness, and he or she is quickly put back on the street.

We have seen what happens when a deranged person gets a gun.  How did all those killers escape detection?  Maybe they were detected, but there were no options to treat them or protect others from their rage.

Until we take mental health seriously and improve access to mental health care, there will be no change in a very sad and dangerous situation.

As Middle Eastern autocracies erupt in protest, we Americans know what the people in the streets are fighting for: Freedom.  We have the luxury of debating what “freedom” means.  I think “being free” is reflected in three ideals:

1.  Democracy. People are entitled to choose their government, but is democracy enough?  If they hold an election and choose a new dictator, what have they gained?  Look at Iran.

2.  Pluralism. Liberty is translated from theory into practice when citizens have equal rights regardless of race, gender, religion, national origin or sexual orientation.  Americans embrace freedom, but what sets us apart is our commitment to diversity.

3.  Law. What good are rights without a legal system to enforce them?  Our Founding Fathers recognized all the freedoms in the Bill of Rights depend upon the Sixth and Seventh Amendments – the ability to enforce those rights in a court of law, before a jury of your peers. Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Those are three ideals worth fighting for!

Saying “No” is one of the worst jobs of a trial lawyer. We are in business to help injury victims.  People who call expect us to do something! When the law and facts are unfavorable, people do not take the news well.  And who can blame them?  They keep hearing people get rich from lawsuits.  It is untrue.  At best, people are compensated and not enriched in lawsuits.  “Frivolous lawsuits” and the “lawsuit lottery” are illusions.  You are much more likely to lose a valid lawsuit than win a frivolous one.  But the sales job by the “tort reform” lobby has been relentless, so people have expectations, particularly when their injuries are not their fault.

Your legal rights and remedies have been slashed and burned by an aggressive, anti-consumer, pro-insurance Texas Legislature and Supreme Court.  As a result, we lawyers say “No” on many cases we accepted in the past.

Premises liability cases – where someone slips or trips and falls – are an example.  For years, lawyers could win these cases if we showed an operator of a business should have known there was a hazard.  Over the past twenty years, the Supreme Court of Texas has made it difficult to win a case without showing employees of the business actually knew there was a hazard.

Most people who slip and fall in stores are treated as pests by store management and even worse by claims adjusters.  They are strung along and asked for proof of their injuries only to be told (often after the two year statute of limitations passes) the store was not at fault and they will receive no help.

Retail stores refuse to pay injured customers’ medical expenses as they arise.  People with health insurance have a means of seeking care.  Those without coverage are left in limbo.  They cannot afford treatment, and most lawyers will not help them.  The lines at public hospitals like Ben Taub and LBJ are long and frustrating, but they are frequently the only choice for people with no coverage.

So, what should you do if you fall at a store or other public business?  Here are steps to follow:

1.  SAY SOMETHING! Let people around you know you have fallen.  Summon help from store personnel and bystanders.  Try to find witnesses to help you confirm the hazard had been there a long time and was being ignored by store personnel, and get their contact information (name, address, phone, email).

2.  TAKE PICTURES. Use a camera or smart phone to take as many photographs of the area as possible – including the source of the spill or other hazard – before store employees change the scene.

3.  SEEK MEDICAL CARE. Do not wait for the store’s claims staff to help you.  Go to a hospital or the doctor immediately, even if you have to go to a public hospital or emergency room.  Continue to seek care as needed.

4.  WRITE THE STORE.  Send a certified letter with a return receipt (green card).  State the date, time and location of your fall and ask the store to “preserve any and all video images that show the area of the fall and 200 feet around that area for at least two hours prior to the incident.”  Keep a copy of your letter.  If you have a fax machine that will print out a confirmation sheet, you can fax the letter instead of sending it by certified mail.

5.  CALL A LAWYER.  Do not wait to be told “NO” by the store’s claims adjuster.  Go over the facts of the incident with a lawyer as soon as possible.

Even if you follow these steps, you may not have a case.  But you may at least have a fighting chance!

As Rep. Gabrielle Giffords continues to heal from her injuries, we in Houston should be proud she chose TIRR – the Institute for Rehabilitation and Research located in the Texas Medical Center – as the next stop on her road to recovery.  Few places offer such amazing resources for the treatment of brain injuries.

Just as the wars in Iraq and Afghanistan have brought to light the horrors of TBI (traumatic brain injury) and PTSD (post-traumatic stress disorder), Rep. Giffords’ journey will shine a light on the world of rehabilitation from serious brain and spinal cord injuries.  TIRR and its amazing doctors, nurses, therapists and other caregivers rehabilitate patients with many forms of impairment caused by injury and illness.  Once patients cross the TIRR threshold, the focus turns from what brought them there (car accident, stroke or gunshot wound) to how they will be rehabilitated to lead a productive life.  TIRR’s halls are lined with photographs of success stories, most of whom are people you do not know.  Their stories are no less compelling, even if they do not occupy the spotlight of national recognition.

The road is often difficult, and not all the stories are successful.  Success in the world of rehabilitation often comes in small increments: the ability to feed oneself, operate a motorized wheelchair or communicate with assistive devices.  There are also big wins, such as Ken Everett, the Buffalo Bills football player who came into TIRR paralyzed from the neck down and walked out.

One harsh reality in the world of rehabilitation is the enormous cost of care, a burden which will thankfully never impact Rep. Giffords.  However, from the moment a catastrophically injured patient enters rehabilitative care, funding is an issue.  Lifetime maximum benefits and bureaucratic red tape are unavoidable elements of an insurance-based healthcare delivery system.  For people with no coverage, the perils are even greater.  Treatment at the TIRR level of rehabilitation is expensive, and even though TIRR has become a part of the Memorial Hermann system, it operates on a budget.  Just as importantly, the needs of patients do not end when they leave TIRR.  In the absence of adequate insurance coverage or resources, many patients become wards of their families, as parents, children and siblings become principal caregivers.

And some patients end up alone in nursing homes.

We all wish Rep. Giffords a full and complete recovery.  As she goes through her recovery, she may become an advocate for those who face similar challenges.  We should all be prepared to listen.

Amid the rush to judgment in the aftermath of the terrible events in Tucson, there are two inescapable realities.  There are people among us who are mentally unstable, and many of them have access to high powered weapons.

These two truths have the potential to affect all of us.  There are men and women of all ages with undiagnosed, untreated mental illness.  Guns which can inflict massive levels of damage are available at retail stores.  A combination of the two is potentially deadly.  If you operate a business or go to places where people congregate, you face this potential threat.

Access to mental health care is extremely limited.  Health insurance policies and plans severely restrict benefits for psychiatric care.  Public mental healthcare services are sparse and overburdened. Many people with serious psychiatric conditions are not diagnosed or treated.

Guns available at retail stores and online are powerful and have large capacities.  A deranged shooter can inflict dozens of casualties in a matter of minutes.  Columbine…Virginia Tech…Tucson.  All involved lunatics using high powered weapons.

Because individuals have the capability of acquiring weapons of mass murder, the need to reform our mental healthcare system has never been more urgent.  This should not be a political fight.  Insurance companies and employer health plans should not be permitted to discriminate between coverage of physical and mental conditions.  People who observe family members, friends or coworkers exhibiting signs of severe mental illness, and particularly aggressive or violent behavior, should have better resources so that dangerous people can be identified, treated and prevented from buying guns.

We do not know if these measures would have prevented what happened in Columbine, Virginia Tech or Tucson.  But they might prevent the next tragedy.

This week, for the first time, I am letting someone else do the blogging. Here (with permission) is Andrew Cochran of the 7th Amendment Advocate speaking against proposed legislation that will require all civil litigants who lose a lawsuit to pay their opponent’s attorney’s fees. Mr. Cochran’s essay was published on December 10, 2010:
The Wall Street Journal today commended Texas Gov. Rick Perry for proposing that a losing plaintiff in a civil suit pay all legal costs for the defendant, similar to what is used in the British legal system. Ironically, the WSJ refers to such a change as “revolutionary,” which strikes me as rather ironic, since we fought a real Revolution precisely to stop doing things the British way. But there are substantive reasons to oppose a “Loser Pays” system imposed at any level of government.

My first objection is that any state-imposed economic disincentive artificially limits Americans from exercising their Constitutional rights. Over 500 years of experience with the British legal system led the Founding Fathers to assert time and again that Americans have a right to a civil jury trial equal to the right to a jury trial in criminal cases. James Madison, for one, called the rights enumerated in the 7th Amendment “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” The Founding Fathers would never have thought about imposing economic barriers to the exercise of “unalienable” rights. Britain has used “Loser Pays” for centuries, but the Founding Fathers and their successors saw nothing about “Loser Pays” worth copying into the American legal system.

Second, plaintiffs often cannot afford to pay their own attorneys at all, except on a contingency fee basis. So “Loser Pays” is inherently pro-defendant, and would especially favor corporate defendants who can outspend any individual defendant. Already the vast majority of incidents of medical malpractice do not result in a legal claim because the costs of bringing the case outweigh the expected recovery. “Loser Pays” provisions will make it even more difficult for victims to assert their rights and seek fair compensation in court, because injured patients cannot risk the possibility of recovering little in damages but having to pay lots for the defendant’s legal fees.

And is the British system really all that attractive? As one professor noted in 2005, a look at the British “Loser Pays” system “reveals a far more complex reality, one full of disputes over fees and related issues, and with plaintiffs… who can win paltry awards and still be owed astronomical legal fees.” No one can reasonably assert that adding “Loser Pays” would magically reduce litigation costs; the American legal system has procedural safeguards not seen elsewhere that raise the cost to all parties, while dispute costs in Britain are set under strict standards. Maybe that’s why only ONE state in the U.S., Alaska, has chosen to institute a “Loser Pays” system in its courts. The aforementioned professor wrote about the Alaska experience that “rather than reducing litigation, they often increased the amount of settlements, because the expenses at stake increased the value of a winning case.” Florida implemented “Loser Pays” for years for medical malpractice cases, then reversed course amidst heavy criticism (even a “Loser Pays” proponent called it “imperfect.”)

And it’s not as if states haven’t tried other forms of tort reform; to the contrary, most have imposed some limits on our 7th Amendment rights, claiming that tort reform would control health care costs. Texas already limits punitive damages and is recognized as one of the most pro-tort reform states in the country. That hasn’t helped medical costs in Texas; the city of McAllen is one of the most expensive health-care markets in the U.S.

“Loser Pays” is another vehicle for limiting our cherished Constitutional rights. Civil suits didn’t cause the Great Recession, the crackup of Wall Street, the Deepwater Horizon explosion and the worst oil spill in the world, or multiple deaths from bad products such as drop-down cribs or defective pacemakers. Civil suits protect our religious liberty and promote local control over excessive bureaucracy, and actually have added consumer protections to products such as toys and cars. Let’s stop trying to take a hatchet to the Bill of Rights.

Thanks to Mr. Cochran for permission to reprint his essay.

“Loser Pays” legislation would make our Founding Fathers cringe.  The rights of ordinary people, including the right of trial by jury in civil cases, were at the heart of the American revolutionary movement.  What was true in 1776 is true in 2011.

You may not have a case you want to bring to court today, but at some time in your life you may have a dispute against a person or company with more resources than you.  I am not talking about frivolous lawsuits – existing laws punish people that file those, and cases with no merit can be thrown out on “summary judgment.”  And I am not just talking about personal injury and wrongful death claims.  The Harris County District Clerk’s website lists over 180 types of civil claims that are filed in court.  “Loser Pays” legislation says you will be treated as a fraud if a jury decides a legitimate dispute against you.

Our legal system thrives when courts provide all citizens with a fair forum to decide controversies.  The cost of litigation has skyrocketed because of abusive tactics by wealthy corporations who treat every lawsuit as a war of attrition, spending their opponents into the ground.  “Loser Pays” legislation is yet another scheme to limit the rights of ordinary people, in this case by scaring them away from exercising their right to trial by jury.

The minimum limits of automobile bodily injury liability insurance are $25,000 per person/$50,000 per accident.  Those limits go up to $30,000/$60,000 on January 1, 2011.  However, people with severe injuries often find these minimum limits do not cover all their medical bills, lost income, pain and suffering and other damages.   What can you do?

First, to protect yourself, buy uninsured/underinsured motorist (UIM) coverage. UIM coverage pays your damages when the other driver has no insurance or too small a policy.  Everyone should have at least $50,000 in UIM coverage, and more if you can afford it (your UIM coverage cannot exceed your liability coverage, so that is a consideration).

However, there is a legal doctrine that can actually make an insurer liable for more than the limits of coverage.  The “Stowers Doctrine” provides that insurance companies that negligently reject an unconditional offer of settlement within the limits of coverage may be held liable for the entire judgment.

If that sentence was complicated and hard to follow, don’t feel alone – many lawyers do not know the ins and outs of this doctrine! However, for those of us who work in personal injury law, it is a tool we use in selected cases.  In order to set up a “Stowers claim,” the plaintiff (injured person) must offer to settle all claims against the insured for the amount of the coverage.

This can be a calculated gamble, particularly if there is any chance of collecting a judgment in excess of the policy limits from the insured.  There may be other stakeholders in your claim, such as health insurers who claim a right of reimbursement or “subrogation,” who will have to be paid out of the settlement if the insurance company accepts the offer.   You should also make sure you have written permission from your UIM carrier.  Otherwise, you will be violating a provision of your policy and may not be able to recover UIM benefits.

This doctrine is not actually implemented unless the offer is rejected, and you go to court and obtain a judgment in excess of the policy limits.  If the defendant cannot pay the amount of the judgment in excess of his policy limits, you have the right to file a second lawsuit against the insurance company.  If you prove the insurer was negligent in failing to settle, you can recover the balance of the judgment from the insurer, even if that amount exceeds the policy limits!

You cannot turn a $25,000 case into $100,000.  However, if you have a $100,000 case, and the responsible party has only $25,000 in coverage, there is a strategy to try to collect the entire amount.

If you are in an accident, an adjuster or investigator may ask for your recorded statement.  Regardless of whether the adjuster works for your insurance company or the “other side” of the claim, the statement becomes a permanent record of your version of relevant facts.  Do not treat recorded statements lightly, and if your injuries are serious, talk to a lawyer first.

Unlike testimony in court or a deposition, you are not under oath when you give a recorded statement.  That is small consolation when the statement is played back to you at trial, and you have given incorrect information or left out important details.  Imagine an opposing attorney saying, “You may not have been under oath, but you said it, didn’t you?” Most personal injury jury trials revolve around the credibility of the plaintiff (i.e., whether you are telling the truth), so the other side will attack your credibility with a recorded statement.

Injuries that seem small at first may turn significantly worse. I have represented hundreds of people whose initial moderate neck or back pain ultimately led to surgery.  At the time of a recorded statement, you may have no idea that you will end up in a lawsuit.  Assume the recorded statement is important.

Here are some general pointers about typical traps people fall into when giving recorded statements:

1. Your medical history. You may have never had back pain this bad, but if you went to a doctor 20 years ago and complained of soreness in your back, say so.
2. Your current condition. Do not leave anything out that feels different, regardless of whether it is painful or related to the injury.  That numbness you feel on the front of your leg may be a symptom of a back injury.
3. Time, space and speed. Inaccurate details that can be measured can come back to haunt you.  You did not sit at a red light for “a few minutes,” the oncoming vehicle was not “a mile away,” and the other driver was not doing “eighty miles an hour” when he ran into you.  If you do not know an answer, do not guess!
4. Different kinds of recorded statements. Statements to police officers are recorded on accident reports.  Medical histories given to a doctor (verbally or on intake forms) are recorded in your medical records.  Jurors usually believe what they read on police reports or in medical records.
5. In Texas, only one party to a conversation must consent to a recording. You may be recorded without your knowledge!  Most insurance adjusters will ask your permission to record your statement.  Some investigators will not.  A good rule of thumb is: Whenever you speak with someone about an accident or your injuries, assume you are being recorded!

I have been accused of being too verbose (guilty) and even “too preachy.” Let me break from that pattern and merely pass on a report from the World Justice Project, which finds in its Rule of Law Index that the United States ranks last among eleven developed countries in access to justice for “ordinary people.”

Of particular note was the gap between wealthy and poor citizens in their view of the fairness of the legal system:

In the United States, “only 40% of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71% of wealthy respondents. This 31% gap between poor and rich litigants in the USA is the widest among all developed countries sampled. In France this gap is only 5%, in South Korea it is 4% and in Spain it is nonexistent.”

I’m not preaching.  I’m just saying this report is worth considering.  The U.S. has also fallen behind other developed countries in education.  How do we find it acceptable that our country comes in last in anything?

Martin Luther King said, “Injustice anywhere is a threat to justice everywhere.”

Have a great weekend!