Tort Reform: Is it Constitutional?

The previous post regarding "tort reform" presented data from an empirical study which showed that the majority of elected judges in Texas, both Republican and Democrat, believe that tort reform is unnecessary. In this post, guest author and Houston Trial Attorney Steve Waldman weighs in on how the current tort reform bills could affect the Constitution and the Bill of Rights.

Constitution Demolition - Also Known as TortReform3   
By: Steve Waldman

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?

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 by clicking on this link.

Reprinted with permission.

   

Legislative Update: "Tort Reform"

There are a number of proposed bills in the current legislative session in Texas that are taking aim at the civil justice system under the banner of "tort reform" -most notably SB 21/HB 2031 and SB 13/HB 274. While most people agree that frivolous lawsuits should not be filed,  the more important question with regard to tort reform is, "How bad is this frivolous lawsuit problem in Texas, and what additional laws are necessary to stop this problem?"

If anyone has a grasp on the necessity, or lack thereof, of tort reform laws it would be our elected judges who preside over civil cases in Texas.  Below is an article written by Waco attorney Craig Cherry which discusses a recent empirical survey of Texas judges and their views on "runaway juries," "frivolous lawsuits," and "tort reform;" the results of which "tort reform" proponents may find surprising.

Survey of Texas State Court Judges Confirms "Tort Reform" Unnecessary

A new law review article recently published by the Baylor Law Review (Vol 59, Summer 2007) provides empirical data suggesting "tort reform" is unnecessary.

In "Straight From the Horse's Mouth: Judicial Observations of Jury Behavior and The Need for Tort Reform", the authors surveyed state court judges in Texas and found very interesting results, some of which are summarized below.

Regarding actual and exemplary damages, the survey found:

Over 83% of the Texas district court judges had observed not a single instance of a "runaway jury" verdict on either actual or exemplary damages during the preceding 48 months before the survey.

Over 85% of judges had not at all or in only one instance granted relief during the past four years due to an excessive award of actual damages. No judge in the entire sampling had granted such relief during the prior four years in more than three cases.

Over 83% of Texas judges had not witnessed a single jury award too high (compensatory damages).

15% of Texas trial judges observed juries refuse to make any award of punitive damages when the judge believed such an award was warranted by the evidence.

Regarding "frivolous lawsuits", the survey found:

44% of the judges had not personally observed a single frivolous lawsuit in their courtroom during the prior four years.

99% had observed no more than between 1-25% of the cases filed before them as being frivolous.

85% of the responding judges had at most sanctioned a lawyer only one time or less during the prior four years.

Over 86% of the responding judges believed that there was no need for further legislation addressing frivolous lawsuits.

Out of 389 state court judges in Texas, 303 returned the survey to the authors.

The survey results confirm that most Texas trial judges do not see significant numbers of frivolous filings by people who have no business suing, and plaintiffs with legitimate suits are much more likely to be under compensated than to receive any windfall. Two primary goals for tort jurisprudence are for the victim to receive full compensation and to deter the tortfeasor, and when victims are not fully compensated and tortfeasors are not deterred, neither goal is met."

Reprinted with permission.

Legislative Update: Kari's Law

In 2006 former pastor Matt Baker murdered his wife Kari in their Hewitt, McLennan County, Texas home and staged the scene to look like a suicide.  

The responding police officers and emergency personnel followed standard protocol when they arrived at the Baker house which dictated that, in McLennan County, a justice of the peace conduct an “inquest into the death of a person who dies if the person commits suicide or the circumstances of the death indicate that the death may have been caused by suicide.”  Texas Code of Crim. Pro. §49.04.  


Texas law at that time stated that an “inquest meant an investigation into the cause and circumstances of the death…, and a determination, made with or without a formal court hearing, as to whether the death was caused by an unlawful act.”  Texas Code of Crim. Pro §49.01.  Moreover, a justice of the peace could conduct the “inquest…at any other place determined to be reasonable by the justice.”  


In the Baker case, this meant that the presiding justice of the peace was able to investigate Kari Baker’s death and determine the cause via a late night phone call from the responding police officers without getting out of bed.  Finally, a justice of the peace had the sole discretion of whether to order an autopsy.  Texas Code of Crim. Pro §49.10. 
   
An autopsy was later performed in the Baker case, but only after a formal inquest hearing was granted and after Kari had been interred.  The results from the autopsy provided crucial evidence that helped prove that Kari had not committed suicide but had in fact been murdered by Matt Baker.  


If a full or partial autopsy would have been a mandatory requirement for apparent suicides, like it is in other states such as Oklahoma or Georgia, crucial evidence against Mr. Baker would have been better preserved.

                   

In the current legislative session Texas House Representative Charles "Doc" Anderson of McLennan County has introduced House Bill 3546, referred to as Kari's Law by its supporters, which would substantially change this very important area of Texas law such that autopsies become mandatory anytime a death is apparently caused by suicide.


With all of the other duties of a justice of the peace –performing marriages, issuing warrants, setting bail, conducting criminal and civil trials- it seems that determining death is one duty that should be void of discretion and ultimately up to a medical professional.   Accordingly, this Bill and its author are worthy of support.   

Legislative Update

Yesterday marked the halfway point of the 82nd legislature in Texas.  Now with only 69 days left there are a series of bills that are moving through the legislative process that will have a direct impact on the civil justice and criminal justice system in Texas.

If you are interested in the process of how a House or Senate Bill becomes a law in Texas, you can see a diagram of the legislative process here or you can read about it more here.

If you are interested in searching for specific bills, or searching for a bill by the text of the bill you can do so here.

Additional entries about specific bills will follow soon.

285,000 Hyundai Elantras Recalled for Air-Bag Inflation Issues

According to a recent New York Times article by Christopher Jensen and recent filings with the National Highway Transportation Safety Administration (NHTSA) Hyundai is recalling 285,000 Hyundai Elantras for Air-Bag Inflation Issues. The first series of recalls is for about 95,000 model year 2007-08 Elantras; if you own one of these Elantras the NHTSA recall campaign number is 100. The second series of recalls is for 188,000 model year 2007-09 Elantras; the recall number for these Elantras is 099.  Elantra owners can call the NHTSA vehicle safety hotline at 1-888-327-4236 (TTY 1-800-424-9153), or go to www.safercar.gov. for more information.


Jensen also reports, and the NHTSA filings confirm, that Continental Tires is recalling truck tires, most of which were original equipment on 2008-9 Ford F-250 and F-350 pickups.

DWD: Driving While Distracted

The National Highway Traffic Safety Administration’s (NHTSA) mission is to “save lives, prevent injuries, and reduce economic costs due to road traffic crashes.”  With that as its mission, it's no surprise that the NHTSA has begun to focus on how to eliminate car accidents that are caused by "driver distraction."  In fact in 2009, the NHTSA reported that 20% of car accidents with personal injuries involved distracted driving.   

While more people are becoming aware of the dangers of driving while texting, or driving while talking on their cell phone, there are several other distractions that drivers commonly encounter every time they get behind the wheel -including eating and drinking, grooming, and using a navigation system.  However, some of the latest government research suggests that the distraction most associated with crashes is when a driver is engaged in a conversation -even though a driver's eyes might be looking forward their mind is elsewhere. According to the NHTSA, there are three types of driver distraction that lead to crashes:

• Visual distraction: Tasks that require the driver to look away from the roadway to visually obtain information;   
•  Manual distraction: Tasks that require the driver to take a hand off the steering wheel and manipulate a device; 
• Cognitive distraction: Tasks that are defined as the mental workload associated with a task that involves thinking about something other than the driving task.

As you can see from this video the toll of distracted driving is devastating:

If you or a loved one has been injured by a distracted driver, you should consider hiring a personal injury trial lawyer to help hold that driver accountable -not only for your sake, but so that the word will spread through your community that distracted driving is, in the words of the NHTSA, "a serious, life-threatening practice and we will not rest until we stop it."

Crash: You're in a Car Accident. What are you supposed to do next?

According to the U.S. Department of Transportation, there were an estimated 5,505,000 police-reported traffic crashes in the United States in 2009.  While you hope to never be involved in crash, you know that no matter how careful and attentive a defensive driver you may be, you can't control whether others obey the rules of the road.

So if you do find yourself as one of the millions of people who are in an accident every year  it's good to follow these simple rules:

1.  Safety First. If you're able to move your vehicle out of harm's way do so immediately.  If not, turn off your engine, put on your hazard lights, keep your seat belt on, call an emergency or police number, and wait for emergency personnel to arrive.  Allow medical professionals and emergency personnel to assist you, and if you experience pain or discomfort after the accident seek medical care.

2.  Call the Police.  Even in a minor accident it is good to have a police officer create a crash report.  In Texas, the reports look like this.  Make sure to get the police officer's name, badge number, and an incident or case number.  To formally request a copy of a police report in Texas you can complete and send to the Texas Department of Transportation this form, known as Form CR-91, Request for Copy of Peace officer's Crash Report.

3. Exchange information with the other driver.  You will want to get the other driver's name, driver's license number, license plate number, the make and model of the other car, and the other driver's insurance information including the name of the insurance company, the policy number, and a phone number for filing an insurance claim.  It's important to ask if the driver is also the owner of the other car -if not ask for the owner's name and insurance information as well. Some people keep a blank "accident form" in their glove box along with other accident materials like a disposable camera, pen, and paper.  Here is a sample accident form.

4. Document the Accident.  If you are able, you will want to use your cell phone camera or another camera to take pictures of both your car and the other car from a series of angles including the front, back, sides, and views that look at each corner of the car. If there are any witnesses you should get their name and contact information as well.

5.  Contact Insurance.  As soon as you are able, contact your insurance company and the other driver's insurance company.  Some people prefer to have a personal injury trial lawyer make this contact on their behalf.  If you decide to hire an attorney to represent you in your claim you should investigate the attorney and their firm to see if they have experience in handling insurance claims for property damage and personal injury. Also remember that if you are injured you will in all likelihood not know the full extent and lasting effect, if any, of your injuries immediately after the accident so be careful not to agree to a quick settlement with an insurance company before you've received appropriate medical treatment.