Whistle-Blowers, Be Careful Who You Tell

On Wednesday, February 21, 2018, the United States Supreme Court issued an opinion in a whistle-blower case, Digital Realty Trust v. Somers, that makes it vitally important for an employee who intends to report wrongdoing to do so exactly as a statute states it should be done.

The case involved a provision of the Dodd-Frank Act. The statute said an employee could not be fired in retaliation for reporting a securities law violation to the Federal Securities and Exchange Commission (SEC). Mr. Somers made the fatal mistake of reporting a violation of law to his superiors and he was fired. The United States Supreme Court held that Mr. Somers was required to follow the law exactly and report the illegality to the SEC, rather than his superiors. Therefore, Mr. Somers will get nothing. This decision will not further the legislative intent of providing a safe harbor to those brave enough to come forward and report a crime.

Texas and other states have similar laws that require whistle-blowers to report illegal activity to a law enforcement agency rather than someone in their chain of command within the organization.

The lesson to be learned is that whistle-blowers should seek legal advice before reporting illegal activity. Only a lawyer will be able to give you the legal advice necessary to comply exactly with whatever law may exist to protect you from a retaliatory firing.

Common sense tells me that the instinct of most employees is to report wrongdoing within the chain of command and most companies require this as part of their policy, but you do so at your own peril.

Photo by Sira Anamwong

One Lawyer's Courage

The New York Times ran an interesting story on February 6th, 2018 regarding the remarkable courage of a Navy lawyer who is charged with the responsibility of representing a notorious terrorist being held in Guantánamo Prison.

The situation is that the terrorist is being held in military confinement and is being tried in a military court. The military is seeking the death penalty. The rules of a military tribunal in cases involving the death penalty require that the defendant be represented by “learned counsel” who have tried capital cases before.

The lawyer the New York Times wrote about is Navy Lieutenant Alaric Piette. He was trained as a Navy Seal and then went to law school. He has been licensed for only 6 years and has never tried a death penalty case. He is, by any measure, including his own, not “learned counsel” and does not meet the qualifications required by the military to represent his client.   

In the beginning of the proceeding, Lieutenant Piette was part of a multi-lawyer team and other members of the team were qualified. However, all of the lawyers other than Lieutenant Piette resigned after they learned that their confidential conversations with their client were being monitored. In fact, their meeting room was “bugged.” Although the lawyers objected to the Court, the Court ruled that the defendant’s conversations with his lawyers were not confidential and privileged. This ruling is completely contradictory to the law. The lawyers resigned in protest, leaving only Lieutenant Piette.

At this juncture, Lieutenant Piette was faced with an insoluble dilemma.  He could resign with the other lawyers, or he could continue to try to help his client despite the fact he was legally unqualified to represent the hated terrorist and incapable of single-handedly representing his client in one of the most complex, difficult, controversial criminal trials ever.

Lieutenant Piette first did what he should have – he objected based on his obvious lack of the required qualifications. To thwart his objection, the Judge ruled that “learned counsel” was required only “to the extent practicable”, and proceeded with the case over Lieutenant Piette’s well-taken objection. This ruling threw Lieutenant Piette back upon the horns of his dilemma.

As Lieutenant Piette saw it, “This is clearly a problem, because there is no way I qualify as learned counsel, but leaving the client without a lawyer to protect his rights could be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” So, Lieutenant Piette attends the tribunal without objecting or asking questions and refuses to participate beyond being present. He does this because he is afraid that to do otherwise will give up his client’s one chance, and that is to appeal based upon the fact that he was denied “learned counsel” by the military Judge.

Clearly, Lieutenant Piette is in one of those “damned of you do, damned if you don’t” situations. He will be and already has been harshly criticized by some in the military including the Judge.

All lawyers owe a duty of loyalty to their client. But, over and above that, they owe a duty to uphold the integrity of the legal system itself and to their profession. Lieutenant Piette should be praised for doing the best he can to fulfill his responsibilities as a lawyer in the most trying circumstances a lawyer could ever imagine.

Photo Credit: Daniel Bone

The Human Cost of a Do-Nothing Congress

The recent train crash which killed 2 in South Carolina raises once again the question of why railroads throughout the United States don’t have positive train control. Positive train control is a technology that relies on GPS, wireless radio and computers to monitor train positions. The technology is capable of automatically stopping and/ or slowing trains that are in danger of colliding, derailing from excessive speed or entering areas where track crews are working. The South Carolina wreck would have been prevented by positive train control technology.

Positive train control technology has been available for many years. In 2008, following a train wreck in California that killed 25 people, Congress passed a law requiring that the technology be installed on all tracks carrying passenger trains. This law was passed over the objections of the railroad companies. Immediately after the law passed, railroads began to lobby for extensions and delays. Railroads were then given 7 more years to start using the technology. The railroads dragged their feet and lobbied Congress for more time. Congress then extended the deadline for 3 more years, to 12/31/2018, with the option to grant railroads that show progress an additional 2 years, to 12/31/2020. Nevertheless, some railroads have already said they can’t meet the deadline.

An overwhelming majority of passenger deaths since 2008 could have been prevented by positive train control.

When you hear politicians boast about easing safety rules and regulations to make things easier for businesses to operate, there is often a human cost to that public policy decision. This is definitely one such instance. The truth is that railroads and many other businesses won’t take the steps necessary to make things safer unless and until it is cost effective to do so. By that I mean, when the cost of paying claims and buying insurance is lower than the cost of implementing safety measures, most companies choose to continue to do business as usual. That is exactly why railroads don’t upgrade many dangerous crossings. When too many deaths occur at the crossing, something will be done, but not otherwise.

It’s long past time for Congress to act on this no-brainer public safety issue.

Photo Credit: Martin Winkler

Unfit

"[Seeing] MY COUSIN VINNY...

doesn't qualify you to be a federal judge"

- Sen John Kennedy

The recent embarrassing hearing before the Senate Judiciary Committee regarding Trump judicial nominee Matthew Peterson revealed that Peterson did not possess even rudimentary knowledge of relevant judicial or legal procedure and that he had no experience whatsoever that would qualify him to be a federal judge with a lifetime appointment.

Who was responsible for vetting this nominee? How could anyone with the slightest bit of sense have ever thought for a moment that Peterson was qualified? Nominating this man shows a great deal of disrespect for the law and the judicial system.

Two other nominees have withdrawn from consideration after embarrassing facts were learned about them.  One of these men, Brett Talley of Alabama, also had very little experience and an American Bar Association Committee had said unanimously that he was not qualified.  The other man, Jeff Mateer of Texas, had made controversial speeches involving various social issues and condemned same-sex marriage as a forerunner of polygamy and bestiality.

One of the judges who will be confirmed is Don Willett of Texas. He was appointed by Rick Perry to the Texas Supreme Court. However, prior to that appointment, he had virtually no relevant experience that would qualify him to be a Justice on Texas’ highest court.

There is an enormous difference between what politicians believe are judicial qualifications and what practicing lawyers and sitting judges believe are judicial qualifications. I have no business saying who should get a plumber’s license or an electrician’s license because I’m not qualified by education, training and experience to make those judgments. Why do politicians think they are qualified to evaluate judicial nominees?

Maybe Senator John Kennedy, Republican of Louisiana, said it best: “Just because you’ve seen “My Cousin Vinny” doesn’t qualify you to be a federal judge.”

Photo Credit: Rudy & Peter Skitterians 

Hiding the Truth

What happens when evidence is destroyed or hidden...

An article in the Houston Chronicle of 12/14/17 highlights the question of what happens when a party to a lawsuit destroys or hides important evidence.

The facts of the case reported by the Houston Chronicle have to do with a lawsuit against the Texas prison system arising out of the deaths of 3 inmates due to heat stroke. The prison system destroyed important documents and delayed for years producing to the Plaintiffs’ lawyers a key email that proves a prison administrator had actual knowledge that conditions in the prison were causing heat-related deaths. The Plaintiffs’ have asked the federal judge hearing the case to grant a judgment in their favor or, in the alternative, to instruct the jury that they are to infer the destroyed evidence would have been favorable to the Plaintiffs and unfavorable to the Defendants. Needless to say, prison administrators deny they did anything wrong and say the documents were shredded in the routine course of their record keeping process.

The act of destroying evidence that is material and relevant to a pending lawsuit, a potential claim or the defense of a claim is called “spoliation”.

When an event occurs which a reasonable person knows or should know will lead to a claim or litigation, persons who have care, custody and control of evidence have a legal duty to preserve that evidence for future use by all parties. Also, when litigation is filed and a request is made to the opposing party to produce for inspection specified documents (paper or electronic) and physical evidence within the opposing party’s possession or subject to the party’s control, the attorney for the responding party has a duty to make a bona fide, good faith effort to determine whether such evidence exists and, if it does, to timely produce it to the requesting party.

It would be extremely naïve to think that all parties to real or potential litigation actually do what the law requires. Sometimes evidence is lost or destroyed through inadvertence or negligence. Other times evidence is deliberately destroyed or withheld. That is why judges have broad discretion to determine how noncompliant parties are to be sanctioned for spoliation. In the worst cases, judges have the authority to enter a “death penalty” sanction. This means entry of judgment against the offending party, without a trial. However, appellate courts have stated that this most extreme of sanctions should be reserved for only the most egregious acts. Short of granting judgment, judges can also impose fines, attorneys’ fees, admit proof of evidence destruction at trial, strike claims or defenses, and instruct juries as to what they should infer from the fact evidence was destroyed.

PHOTO CREDIT:  1 Stryker Brigade Combat Team Arctic Wolves on Foter.com / CC BY

Warning About Flood-Damaged Vehicles

Consumers BEWARE....

Vehicles damaged by Hurricane Harvey are being sold to unwary buyers....

Vehicles damaged by Hurricane Harvey are being sold to unwary buyers. Many of these vehicles are being sold with "Nonrepairable Motor Vehicle" title. Under the law in Texas, the purchaser of a vehicle sold with a Nonrepairable Motor Vehicle title "may not operate or permit the operation of the vehicle on a public highway." Unfortunately, buyers are learning this expensive lesson only when they go to the tax office to transfer title.

Don't buy a vehicle with a Non-Repairable title if you expect to drive the vehicle on a public road or highway without first rebuilding it and going through the considerable hassle of having it retitled under Texas Transportation Code '501.0922.

Photo Credit: Photo by Michel Curi on Foter.com / CC BY

The Basics

CHILDREN...

Surely they have a right to medical care....

Not according to some Republicans in Congress.

Most people would agree that food, clothing and shelter are basic necessities of life. I feel certain that an overwhelming majority would agree that education is a necessity. How about medical care? We all get sick at some point, and if we are part of a family, it is certain that someone we care about deeply and for whom we are responsible will need medical care. Yet, when Americans are asked whether basic medical care is a fundamental right, there is sharp disagreement. This has always seemed strange to me and I can't begin to understand the thought process of those who can't answer that question emphatically "Yes". Maybe the hesitance to answer "Yes" can be explained by the environment and circumstances in which the question is asked. I'll bet that if the question was asked of patients and family in a hospital emergency room we would get universal agreement.

Surely we can all agree that children have a right to medical care? Not so fast. Funding for the federal Children's Health Insurance Program (CHIP), which passed with bipartisan support in 1997 and provides health care coverage for 8.9 million poor children, expired in September. Republicans in Congress are hesitant to reauthorize the program. The program has a cost of $15 billion. According to Republican Senator Orrin Hatch, "The reason CHIP's having trouble is that we don't have money anymore".  Senator Hatch then promptly voted for the biggest tax cut in history, a major victory for corporations and the wealthiest Americans.

If you pay the fiddler, you get to call the tune. Uninsured poor children have no place on Senator Hatch's dance floor.

Thinking of Those Less Fortunate at Christmas

If the government won't help...         

IT IS UP TO US.

It is the time of year to give thanks and think about what we can do for others.

An article in The Eagle and the Texas Tribune of December 1, 2017 regarding how little the State of Texas and the federal government do to help the poor was a saddening reminder of how little progress we have made since President Johnson declared a war on poverty in the 60s. Next came passage of the House and Senate tax bills, which are indisputably giveaways to corporations and the already rich, and will perhaps add an additional 1.5 trillion to the nation's debt. Thereafter, Trump and the Republicans immediately turned their attention to "Welfare Reform". At a speech (rally) in Missouri, Trump said: "Does anyone want welfare reform? I see it, and I've talked to people. I know people that work three jobs and they live next to somebody who doesn't work at all... So we're going into welfare reform." According to the Wall Street Journal, they are also aiming at Medicaid, the source of medical care for millions of the poor and nursing home care for the elderly poor.

Setting aside for a moment the question of whether Donald Trump actually knows anyone who works 3 jobs and who he talks to other than the ultrarich at Mar-A-Lago, which of these conflicting narratives is true?

43 million Americans receive assistance through food stamps.

3.5 million people receive help through Temporary Assistance for Needy Families.

The poverty rate in Texas has remained relatively constant over the last 20 years, but Texas has significantly reduced the amount of federal anti-poverty cash assistance it pays by making it more difficult to qualify for assistance. Texas has actually used the money it "saved" to fund other budget priorities. In other words, Texas lawmakers just redefined what it means to be poor so more people could be excluded.

There are already strict caps on how long a family can obtain benefits which are based on education, work experience and income.

To qualify for a maximum of $290 per month in monthly cash aid, a family of 3 with one parent and 2 children, cannot make more thank $188 per month. Think of trying to make that work.

By 2015, only 4 of every 100 poor families with children in Texas received cash assistance B down from 47 in 1996. Again, poverty didn't change, the eligibility requirements changed.

As this blog is being written, KBTX is conducting its annual food drive. According to the Brazos Valley Food Bank, between 7/1/2014 and 6/30/2015 they served 55,742 unique individuals and 44,313 of them were from Brazos County, even though we have one of the lowest unemployment rates in the Nation. The statistics regarding food insecurity in our area can be found at https://www.bvfb.org. If food insecurity is a persistent problem in a prosperous area such as ours, you can imagine how bad it must be elsewhere.

The percent of children living in food-insecure homes ranges from a low of 9% in North Dakota to a high of 26% in Mississippi. The percentage in Texas is 23.8%, even though Texas has a very low rate of unemployment.

Unemployment in the United States stands at around 4.5% to 4.7%. This is traditionally considered full employment, yet wages adjusted for inflation have been stagnant for most workers, particularly the poor, for many years.

The problem of affordable housing for the poor in the United Stated is especially appalling and no public official is even discussing it. You will recall that Trump appointed Ben Carson as the Secretary of Housing and Urban Development (HUD). Insofar as I can tell, Ben Carson has not uttered a single word about this chronic problem since being appointed. Maybe that is what Trump had in mind when he appointed Carson? For an in-depth discussion of housing for the poor, I highly recommend the book "Evicted" by Matthew Desmond, which won the Pulitzer Prize in 2017.

It is especially cynical and just plain mean for the President and his party to take from the poor in order to give to the rich - a reverse Robin Hood.

There are organizations such as the Brazos Valley Food Bank, Twin Cities Mission and Habitat for Humanity that are working hard everyday to help the poor among us overcome adversity that is real and beyond our comprehension.

If the government won't help, and they won't, it's up to us. Please give generously this Christmas season. Lots of folks are counting on us. 

They Got What They Paid For

Vice President Pence cast the deciding vote...

repealing the rule prohibiting contractual clauses requiring consumers to give up their right to sue the vendor or be part of a class action suit - It is impossible to overstate the injustice of this Senate vote.

As I have written about many times in the past, almost all contracts you sign for banking, credit cards, cell-phones and other consumer services contain provisions which require you to give up your legal right to sue the vendor in a court of law and your right to be apart of a class action lawsuit. The Consumer Financial Protection Bureau, an agency created by Congress to protect consumers from abuses perpetrated by the financial industry, recently passed a rule prohibiting contractual clauses of this type. This was done, of course, over the strong objection of the financial industry. But, the battle was not over.

The response of the financial industry to the rule was to hire a virtual army of lobbyists to persuade Congress to overturn the rule.

On October 25, 2017, the U.S. Senate voted on party lines 50 to 50 to repeal the rule. Then, Vice President Pence cast the deciding vote, making it 51 to 50 to repeal the rule.

It is impossible to overstate the injustice of this Senate vote. There has likely never been a more blatant example of the power of lobbyists.

Please remember that open access to the courts and the right of trial by jury are bedrock constitutional rights. I wonder what the 51 Republicans who voted to repeal the rule would say if a bank put a clause in its depository contracts that required you to give up your right to free speech or your right to keep and bear arms? If a bank can force you to give up your right to file a lawsuit against them, is there any limit on what can be put into a contract?

To top it off, in the Senate debate our Senator Cornyn argued the rule should be repealed because it was only lawyers that benefitted from going to court.  Shouldn’t it be your right, rather than Senator Cornyn’s, to decide if you want to take your case to a court of law rather than private, unfair arbitration? Be assured that whenever a politician has to resort to the “greedy trial lawyer” argument to justify whatever he or she wants, that politician is about to do something that is not in the public’s best interest.

Photo by: Denis Hiza via Pixabay.com

Words of Caution on Self-Driving Cars

"There are huge unknowns...

in the technology, vehicle safety, driver capability, application of state laws, insurance, public acceptance, and how many lives might be saved."

On October 25, 2017, the New York Times printed the following letter written by Joan Claybrook, former administrator of the National Traffic Safety Administration, regarding what she regards as a “rush” to bring self-driving cars to market:

        “TO THE EDITOR: Your Oct. 15 editorial “Not So Fast on Self Driving Cars” hits target. Manufacturers and high-tech companies want to rush sales of robot cars to recoup the billions they are investing. But there are huge unknowns in the technology, vehicle safety, driver capability, application of state laws, insurance, public acceptance and how many lives might be saved.
        Seeking to persuade the public, the industry claims that these vehicles would save many lives, but no solid studies document this assertion, and trust in the manufacturers’ veracity these days is minimal.
        Most concerning, manufacturers are using their lobbying might to push legislation exempting driverless cars from existing safety standards so they can be sold quickly, thus authorizing them to sell now and evaluate later. There are no requirements for electronic safety performance, protection against devastating cyberattacks, identifying cars as being driverless or collecting crash involvement data. Gradual, incremental introduction of this radical technology is the only sane route to travel.”  
                 - Joan  Claybrook, Washington,                                                                                                  former administrator of  National Highway Traffic Safety Administration

Sounds to me like Ms. Claybrook is saying “look before you leap”, and that is always good advice. 

Photo by Steve Buissinne via Pixabay.com

The Vanishing Civil Jury Trial and Why You Should Care

THEY ARE LYING...

when the phrase "THE COURTS ARE OVERBURDENED WITH FRIVOLOUS LAWSUITS" is used to justify anything other than a civil jury trial.

This month an excellent article by Robert T. Eglet appeared in the official publication of the American Board of Trial Advocates. Mr. Eglet researched the statistical facts regarding the frequency of civil jury trials in the United States. The facts are surprising and alarming.

In federal court, less than 1% of all civil cases are resolved by a jury trial and that figure is dropping. In 1940, it was 15.2%.

In state courts in Texas, only 0.4% of civil cases are resolved by jury trial.

The percentage of tort cases that go to civil jury trial in state and federal courts is even lower.

There are many reasons for the vanishing civil jury trial. Those reasons include alternative dispute resolution, especially including mandatory arbitration clauses in contracts; high litigation costs and extensive pre-trial discovery; a growing judicial philosophy that  discourages trying cases; the prevalent use of pre-trial summary judgments which trial judges liberally grant to dismiss cases and manage their caseloads; the doctrine of federal preemption which strips states of jurisdiction over many, many disputes which were traditionally resolved in state court; and, so-called “tort reform”.

If a politician or special interest group says that something they want is justified because the courts are overburdened with frivolous lawsuits, they are lying. Not just shading the truth or fudging, but lying.  This is not a matter of opinion. The facts are the facts.

There are relatively few lawyers today who have substantial experience in actually trying cases to a jury and that number is shrinking quickly. This is a sad trend that has important consequences for the client and the general public. How can your lawyer realistically evaluate your case and advise you if he or she doesn’t have a body of actual trial experience to rely upon? How can your lawyer protect you in a trial if he or she hasn’t been in trials? How can lawyers learn the art of trial advocacy and honor the tradition of trial advocacy without opportunities?  

The 7th Amendment to the United States Constitution guarantees the right to a jury trial in civil cases. Thomas Jefferson observed that trial by jury was “the only anchor ever yet imagined by man which a government can be held to the principles of its constitution.” Former Chief Justice William Rehnquist said that trial by jury in civil cases was a bulwark against tyranny and corruption and that “juries represent the layman’s common sense and thus keep administration of law in accord with the wishes and feelings of the community.” Clearly, our founders and great jurists have recognized the value of jury trials. I always wonder what they would say if they could see how far we have strayed?

Photo credit: “Caveman Chuck” Coker via Foter.com / CC BY-ND

The Never Ending Assault on Your Legal Rights

If your employer can force you to give up your right to a Court of Law...

WHAT OTHER RIGHTS CAN YOUR EMPLOYER COERCE YOU INTO GIVING UP?

On October 2nd, 2017, the U.S. Supreme Court heard arguments in 3 cases having to do with the enforceability of employment contracts which contain clauses mandating that all employment disputes be settled by arbitration and forbidding employees from joining together in class action cases. Obviously, businesses use these contracts as a part of a strategy intended to divide and conquer and to force claims to be decided in private by hand-picked arbitrators (rather than a judge and jury) under rules that are different than a judicial proceeding.

I have previously written extensively about similar coercive contract provisions that appear in consumer contracts such as banking, credit cards, rental cars, cell phones and even nursing homes.

The legal history is that the U.S. Supreme Court has upheld by a narrow margin the enforceability of provisions of this type in consumer contracts. Therefore, it seems highly likely that the U.S. Supreme Court will rule in a similar manner now that Justice Neil Gorsuch, Trump=s appointee who has a history of being business friendly, has joined the Court.

The argument made by employers is that everyone should be free to enter into contracts, even if the contract involves giving up a constitutional right. However, as every employee will instantly recognize, in an employment situation the employer and employee do not have equal bargaining power and, in almost all situations, insisting on your rights will come at the cost of your job.

If the U.S. Supreme Court sides with business, it will mean that your employer can force you to sign a contract of employment that gives away your right to go to Court and your right to be a part of a class action case as a precondition of your continued employment. If your employer can force you to give up your right to take your claim to a court of law, what other rights can your employer coerce you into giving up?

This is a travesty if it happens and it probably will.

Rights lost are never regained short of an overwhelming shift in the political landscape.

Photo credit: Foter.com

The Statute of Limitations in Medical Malpractice Cases in Texas

In Texas, as a result of changes in the law that occurred in 2003, the statute of limitations in medical negligence cases is a strict 2 years which begins to run from the date of the negligence, not the date you realize you are injured or the date you realize a healthcare provider=s negligence caused your injury.  There are a few rare exceptions, but the exceptions are so tricky that a useful discussion of them is not possible within the scope of this blog.

The thing to remember is that if you have a suspicion that you may be the victim of medical malpractice, you need to act immediately and not wait. Unfortunately, doctors and hospitals rarely admit their mistakes to the patient. Even doctors giving a second opinion or who are involved only in your subsequent care will rarely criticize another doctor or a hospital. In most instances, you will be forced to consult a qualified lawyer who specializes in medical malpractice cases to get at the truth. This investigation may take time and involve having experts review the medial records. This process takes time.

When I explain the law to clients, they often can=t believe the law could be so unfair and some even think I must be wrong. What they fail to grasp is that the law was written to protect doctors, hospitals and all healthcare providers from claims. If you understand the purpose of the law, you will also understand that "fairness" to patients was never a consideration.

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Be Wary of Flood-Damaged Cars

Flood-Damaged Cars...

some will make their way to market and sold to unsuspecting consumers.

Hundreds of thousands of cars were damaged by our recent hurricane and floods. Insurance companies are processing claims and, in many cases, declaring the cars to be “totaled”. When this happens, insurance companies take possession of the cars and their titles. Obviously, insurance companies want to recoup as much of their loss as they can. This means that some cars will find their way to market and many cars will be disassembled for parts.

Experts agree that flood-damaged cars and parts should be avoided. 

On 9/22/17, the New York Times ran a very informative story about how to spot telltale signs of flood damage and how to acquire title information that will help you identify a flood-damaged vehicle. The article also describes the methods used by unscrupulous sellers to “wash” car titles to hide the fact they were totaled in a flood. 

I recommend this article to you as well as a similar article appearing in Consumer Reports.

Please remember that Texas is not a consumer friendly state. It is very difficult to hold a seller liable for a defective car that was sold “As Is-No Warranty.” All buyers should beware and pay for a detailed inspection by a professional auto mechanic.

Photo credit: davocano via Foter.com / CC BY

News On Driverless Cars

Vehicle Autopilot System...

Working as designed - but not ready for the real world we live in.

Sometimes the news cycle has a way of juxtaposing stories in such a way that interesting questions are raised.

On 9/13/17, the National Transportation Safety Board issued its report on the 2016 fatal crash involving a 40 year old man driving a Tesla car that was being operated by its experimental Autopilot system. The Board found, among other things, that the Autopilot contributed to the crash because the software permitted the driver’s “prolonged disengagement from the driving task” and allowed the driver to use the system on the wrong type of road. According to the Chairman, “In this crash, Tesla’s system worked as designed, but it was designed to perform limited tasks in a limited range of environments.” Or, said another way, the system is not ready for the real world we live in.

On the same day, Elaine Chao, Trump’s appointee to head the United States Department of Transportation and the wife of United States Senate Majority Leader Mitch McConnell, gave a speech wherein she announced that government policy will be to ask automakers and tech companies to voluntarily submit safety assessments to her agency, but that they don’t have to do it. She also said that states are being advised to use a light regulatory hand.

It seems exceedingly strange that the government is taking such a cavalier, hands-off (pun intended) approach to the safety of Americans. Whatever happened to that old “trust but verify” slogan?

Photo credit: Foter.com

The Texas Legislature is Never Too Busy to Help Insurance Companies

Katrina, Ike, & Sandy...

Litigation arising from these storms has been on going for years due to insurance companies denying legitimate claims and offering less than they should pay.

The Texas Legislature just spent an entire regular session and one special session focused on such “emergency” measures as where transgender people can pee. They intentionally did nothing about school finance reform, property taxes, chemical security and safety, environmental degradation, water policy, and a whole host of other complex and urgent problems. Having ignored these problems, one would have to conclude the legislature is either not up to the task or likes things the way they are.

Then along came Hurricane Harvey, which may or may not be the worst storm of a lifetime.

Harvey’s damage to property is beyond comprehension, not to mention the loss of lives, the injuries, the disruption of millions of people’s everyday existence, the closing of businesses, the loss of paychecks, and the direct and indirect economic consequences that will go on for years to come.  

As people begin to get back to their homes and businesses and assess the damage, they will begin the process of making insurance claims. Most people will be disappointed to learn they are not covered for flood damage unless they are part of the lucky 15% who have a federal flood policy. The insurance industry will be sending what are called “storm teams” to the Gulf Coast. These insurance adjusters will be overwhelmed with claims and their aim will be to settle claims as cheaply as possible or deny claims altogether if a policy exclusion can be found. If history is a teacher, we will see insurance companies denying legitimate claims and offering less than what they should pay. This was true in Katrina, Ike and Sandy. Litigation arising out of those storms has been ongoing for years.

Just in time for Harvey is Senate Bill 10. This statute takes effect September 1st. It received little public notice. This statute, requested by the insurance industry, reduces the liability of insurance companies for unlawful claims settlement practices. The statute does this by amending the Texas Insurance Code and the Texas Deceptive Trade Practices Act. The new law limits the interest, penalties, damages and attorneys’ fees that can be recovered by consumers who are harmed by the unlawful conduct of insurance companies. There are also procedural changes and a prohibition against filing a lawsuit under the Insurance Code and the Deceptive Trade Practices Act simultaneously. This means an aggrieved consumer will have to make an election as to which statute to utilize and that decision could have a big impact upon the outcome of a case. Henceforth, a consumer who prevails in a suit against an insurance company will only be able to recover their attorneys’ fees as computed on an hourly fee basis. This is a major change in the law. Under prior law that existed seemingly forever, an insurance consumer could recover their “reasonable and necessary” attorneys’ fees if they won their case. What was reasonable and necessary was determined by the jury.

Lawsuits involving insurance coverage disputes are usually undertaken by lawyers on a contingent fee basis. This is true because most individuals do not have the financial resources to employ a lawyer on an hourly fee basis. When a lawyer undertakes representation on an hourly fee basis, the lawyer typically requires a retainer up-front, keeps track of the hours spent, bills monthly, expects to be paid monthly, and the client pays all the litigation expenses as they are incurred, which usually include high fees for expert witnesses and much, much more. As an alternative, the contingent fee contract allows the client to pay an attorney a percentage of what they get, if anything, in the future. If the case is lost, the lawyer gets nothing and loses his expenses. If the case is won, the attorney gets the percentage agreed upon. By changing the law to limit the recovery of attorneys’ fees to the amount the attorney would have been paid had he been billing the client and being paid by the client on a hourly fee basis from start to finish, many people who are mistreated by their insurance companies will not be able to hire a lawyer to help them. Of course, this is exactly the result the insurance industry wanted. They want to make it so difficult for consumers to get legal help that they will have to live with whatever decision their insurance company makes. This law is a cynical move to disarm insurance consumers in what was already not a fair fight.

I wonder if the insurance companies said “Thank you” or if they will wait until after their rate hikes are approved?  

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Mandatory Arbitration - "It Just Ain't Right."

Mandatory Arbitration Clauses... 

Hidden within virtually every contract you sign with a bank, credit card company, cell phone service providers, etc....

On August 22, 2017, the New York Times published an editorial by Richard Cordray, Director of the Consumer Financial Protection Bureau. This federal agency was created during the Obama administration. Its mission is to combat the abuses of the financial industry that began to come to light during the financial crisis of 2008.

The financial industry fought tooth and nail to keep this agency from being born. Now, the financial industry is fighting just as hard to roll back every rule and regulation promulgated by the agency.

 Among the rules enacted by the Consumer Financial  Protection Bureau is a rule that would prohibit mandatory arbitration clauses in contracts for bank accounts and credit cards and allow consumers to join together in class action lawsuits against banks and credit card companies.

I have written many times about the insidious evil of mandatory arbitration clauses hidden within virtually every contract you sign with a bank, credit card company or a provider of consumer services such as cellphones. These provisions prohibit consumers from taking their complaints to state or federal court and they also prohibit consumers from joining together in a class action case. These provisions are ubiquitous, i.e., they are so prevalent that you don’t really have a choice. As a practical matter, if you sign the contract, your fundamental constitutional right to take your case to court is being taken from you and most consumers are unaware of it.

Needless to say, the financial industry loves these contracts. By forcing cases into arbitration and prohibiting class actions, they are able to avoid liability because a single consumer cannot economically justify becoming involved in an expensive arbitration, usually at a distant location, all alone. This amounts to a virtual license to steal small amounts from many, many consumers. As Cordray quotes one judge as saying, “only a lunatic or a fanatic sues for $30.”

Mr. Cordray cites the recent example of the Wells Fargo fraudulent, secret scheme of  opening up multiple bank accounts and credit card accounts for its customers without their knowledge or consent. Many of these customers were harmed by fees and lowered credit scores. Nevertheless, because of mandatory arbitration clauses and anti-class action clauses, Wells Fargo probably will not have to answer to its customers in a court of law. This is an absurd result.

The financial industry is not taking these rules lying down. Their lobbyists went straight to work and they were rewarded by legislation which recently passed the Republican controlled U.S. House of Representatives which will overturn the rule.

While corporations and their political forces take away your rights by saying mandatory arbitration saves precious judicial resources, time, money, etc., what do they do when they have a legal complaint against a customer or another business? They file suit in a court of law and, on occasion, they join forces in a class action. Every single day banks, credit card companies and other corporations file thousands upon thousands of suits against their customers rather than ask for arbitration.

There’s truth in the old saying: “What’s good for the goose is good for the gander.”  This nonsense has to be stopped because “it just ain’t right.”

Photo credit: Foter.com

If All Else Fails – Blame the Lawyers

Exxon Mobil 

Did they intentionally mislead the public

about climate change?

On 8/24/17 it was reported in most major newspapers that Harvard University researchers had issued a peer-reviewed article in the Journal of Environmental Research Letters which concluded that Exxon Mobil had spent the last 40 years misleading the public concerning its own concerns about man-made global warming.

The researchers are not climate scientists. Rather, they are experts in researching scientific history. They reviewed 187 climate change public communications issued by Exxon Mobil between 1977 and 2014 on the one hand and Exxon Mobil’s internal scientific documents on the other.  They concluded that "Exxon Mobil contributed to advancing climate science – by way of its scientists’ academic publications – while simultaneously promoting doubt about it in its advertorials.” “Given this discrepancy, we conclude that Exxon Mobile misled the public.” In other words, Exxon Mobil knew and used the scientific facts for its own internal business purposes such as strategic planning, but lied to the public to protect itself from federal and state regulators, investors and public opinion.

It is also important to remember that Exxon Mobil is involved now in a very serious investigation in New York focused on whether it misled its investors (stockholders) about the risks of climate change.

The researchers found that 83% of its peer-reviewed scientific papers and 80% of its internal documents acknowledge climate change is real and human caused, but that 81% of its advertorials, i.e., corporate statements of opinion intended for public consumption, expressed doubt over the issue.

Exxon Mobil responded by saying: “The study was paid for, written and published by activists… It is inaccurate and preposterous. Rather than proposing solutions to address the risk of climate changes, these activists, along with trial lawyers, have acknowledged a goal of extracting money from our shareholders and attacking the company’s reputation.”

Doesn’t this remind you of the tobacco companies denying the link between smoking tobacco and cancer?

You know a company is in real trouble when their best defense is to blame it on those doggone “activists” and their greedy trial lawyers. It is a strategy that reminds me of what a wise old lawyer once said to a young lawyer: “If you have the facts on your side, beat on the facts. If you have the law on your side; beat on the law. If you don’t have the facts or the law on your side, just beat on the table.”

Exxon Mobil is beating on the table.

Photo credit: John Englart (Takver) via Foter.com / CC BY-SA

Another Baby Powder Verdict

This past week another jury, this time in California, found that Johnson & Johnson baby powder was responsible for causing a lady’s ovarian cancer. The verdict was for $417 million dollars. This verdict follows a Missouri verdict for $110 million dollars and two other Missouri verdicts for $55 million dollars and $72 million dollars.

The facts in the California case were that the 63 year old Plaintiff had used the baby powder for feminine hygiene purposes for decades.

Did Johnson & Johnson know the risks all along?

For decades, baby powder has been used for  feminine hygiene purposes. 

The evidence in the case included medical studies dating back to 1971 which linked talc, the naturally occurring clay mineral used to make the powder, to ovarian and cervical tumors.

Johnson & Johnson has appealed all of the verdicts and says it will continue to defend all of the thousands of cases filed against it.

Scientists have long hypothesized that talc might lead to cancer because the crystals can move up the genitourinary tract into the peritoneal cavity, where the ovaries are, and may set off inflammation, which is believed to play an important role in the development of ovarian cancer.

In prior blogs I have mentioned that some judges have ruled that the scientific evidence linking talc to cancer is not strong enough to allow cases to proceed to jury trial. However, the trend is now clear that whenever juries are allowed to hear all the scientific evidence from both sides, they believe there is a strong link and find for the cancer victim.

Furthermore, the verdicts have been exceedingly large. The amounts of the verdicts reflect sympathy for those dying with cancer and anger with Johnson & Johnson. This means to me that juries are hearing evidence to the effect that Johnson & Johnson has known of the risks for a very long time and consciously failed to warn its customers.

Photo credit: Au Kirk via Foter.com / CC BY

WHO IS AN IDEAL JUROR?

Photo credit: Wikileaks Mobile Information Collection Unit via Foter.com / CC BY

The New York Times recently ran an interesting story about what seems to be a trend of lawyers selecting jurors who know nothing at all about the facts of a case or the issues in dispute. One could argue that this leads to juries being comprised of uninformed and ignorant jurors. On the other hand, it makes sense to have jurors who will be guided solely by the evidence they hear in court.

The U.S. Constitution guarantees the right to trial by an impartial jury. This right is derived from the English law and it is generally thought that the first jury trial occurred in a criminal trial which took place in 1166. This right was confirmed in the English Magna Carta of 1244 and is enshrined as a fundamental right in the Declaration of Independence, the United States Constitution, the Texas Declaration of Independence, and the Texas Constitution.

Who is impartial? That question is exceedingly difficult to answer.  

The Texas law speaks of jurors who are free of bias and prejudice. Bias means an inclination to see things a certain way.  In other words, a predisposition or a leaning in a particular direction.  Prejudice means prejudgment of facts or issues. For example, there are people who firmly believe that police officers tell the truth when they testify. On the other hand, there are those who are highly skeptical of the credibility of police officers as witnesses. We could come up with countless examples of juror biases and prejudices that could potentially affect the outcome of a case depending upon the facts and the issues in dispute.

In selecting a jury, lawyers are generally entitled to ask potential jurors questions which are designed to reveal biases and prejudices that could be important to the case.  This is done under the close supervision of the trial judge and is not intended to be embarrassing to the jurors. Obviously, the skill of the lawyer in asking questions is important and it is of the utmost importance that jurors answer in a completely candid manner. If a juror indicates bias or prejudice, it is up to the trial judge to determine whether the juror should be disqualified.

If a juror answers in a way that indicates the juror does have a bias or prejudice about an issue in dispute, it is common for the trial judge to ask the juror if he or she will be able to set aside that opinion and follow the law as instructed by the judge. Put on the spot this way, most jurors say they will set aside their personal opinions and follow the law. This response is to be expected. After all, it takes more courage than most people have to tell a trial judge you will not follow their instructions. If the juror says they will set aside their opinions and follow the law as instructed, most judges hold the juror to be qualified to serve. The problem is that scientists who study human behavior will tell you this cannot be done, i.e., people cannot set aside their opinions and beliefs even if they want to. The fact of the matter is that all human beings have fixed opinions about many things based upon their life experiences and they will consciously or subconsciously make decisions which are in accordance with their preconceived beliefs.  You can see this principle at work every day in a political context as each side hears what it wants to hear and tunes out or discredits the rest. This is the basis for the very old saying: “A man convinced against his will is a man unconvinced still.”

So, back to the New York Times story. The trend observed by that writer is true.  Lawyers, now knowing much more about human behavior and how we make decisions, are reacting by taking the safest course of action. They prefer people who know nothing of the facts, the participants or the issues.