COVID-19 UPDATE: What We Are Doing to Protect Our Clients

The 2021 Texas Legislature enacted 666 new laws, most taking effect today. Overshadowed by the controversial ones affecting voting, guns, and abortion is one that drastically affects the rights of people injured in a commercial truck crash.

Truck crash cases will be harder to win in court

House Bill 19 will make Texas highways more dangerous by relaxing the legal requirements that hold negligent drivers and their employers liable for the damage they cause.

    Almost every Texas personal injury case has been altered by the pandemic. Going to court is far different now. For example, it is impossible to imagine the Texas Supreme Court (pictured above) holding a hearing on Zoom earlier this year. What does the future look like for legal proceedings?

A Texas Personal Injury Case During the Pandemic

Back when things were normal, Texas courts conducted about 200 jury trials a week. People that testified had no fear of getting sick and infecting others. Our world changed for the worse this winter. For example, Mr. Berenson ran the Cowtown Marathon on March 1st with no social distancing or masks worn by runners or the crowds of spectators. But on March 12th, courthouses, businesses, and schools closed down. Jury trials ground to a halt. The Supreme Court of Texas monitored this crisis with a number of emergency orders. The most recent one which took effect on October 1st further refined the procedures for trials, hearings, and other proceedings. Now
  • anyone involved in a hearing or deposition can participate remotely;
  • judges can accept testimony given in some sworn statements outside of court; and
  • courts can conduct in-person proceedings after they have been approved by the administrative district judge and local public health officials.
Fortunately, the tens of thousands of car accident claims that could be resolved without a lawsuit mostly proceeded as before.

In-Person Fort Worth Personal Injury Trials

The Supreme Court’s latest emergency order prohibits live trials between October 1st and December 1st for lower courts. But finally, district and county court trials may begin to hold in-person trials. Any judge wishing to conduct them must apply to the local administrative district judge and the regional presiding judge and get their approval that addresses
  • pre-testing for those in attendance;
  • limitation of the numbers in attendance; and
  • social distancing measures
Courthouses across Texas have been retrofitted with plastic shields, barriers, and other ways to separate participants. Thermometers, hand sanitizers, masks, and laptop computers have been purchased in large quantities. Here in Tarrant County (Fort Worth), at least $300,000 has been spent to protect those who will be in courtrooms. In addition, any court holding an in-person jury trial must have a system in place to ensure that no participant has had COVID-19 in the 30 days immediately before the trial date. The judge must  also have a means of confirming that no participant has potential virus symptoms or recent close contact with an infected person. Social distancing and hygiene tools must be employed. Some counties are proceeding with jury trials beginning next week, including ones in Dallas, McKinney, Austin, and San Antonio. But the approval process is exacting and the infection rate reaches new highs every day. We can expect Texas personal injury cases to mostly happen online in the coming months -- and possibly for a long time to come. While there were over 1.6 million cases handled by civil courts in Texas in 2019, they will see only a fraction of that number in 2020. How will courts deliver justice? There are only two ways, in-person and by computer. Each has its pros and cons.

Disadvantages of Virtual Trials

There is no substitute for an in-person jury trial. The parties and witnesses are present and can be scrutinized. Exhibits can be easily displayed and arguments made. Despite technological advancements, there are drawbacks to conducting trials over a computer.

1. Connection and technical issues

This is the most pressing problem with remote court proceedings. When you have twelve jurors in different locations using separate internet connections over an extended period, connectivity issues are practically guaranteed. And some people do not have access to the internet or computers. It has been argued that this will skewer the jury panel to those with more means. There is also the likelihood that some parties might struggle to hear everything others are saying due to sound quality issues. These may not be serious enough to fundamentally impact the trial. However they can cause significant delays and be a source of frustration for everyone involved.

2. Juror engagement

Any teacher will tell you how much more difficult it is to keep students engaged when giving remote lessons. Jurors are not children, but the same principles apply to an extent. It is challenging to keep jury members focused on the legal issue at hand when they have the option of discreetly using their cell phones, watching television, or even leaving the room. That is why the court bailiff collected the smartphones of jury members. 3. Interaction Discussions between large groups of people are more difficult when held remotely. 

Advantages of Virtual Trials

There are pros to holding Texas personal injury trials remotely. They are better than nothing. They limit the spread of COVID-19. And they can be more efficient. For example, the Texas Supreme Court, Courts of Appeal, and state district and county courts have been conducting hearings and trials remotely for several months. However, those proceeding may have fewer moving parts. Witnesses may not need to be sworn in and testify, exhibits may not have to be admitted and analyzed, and legal issues might be controlled easier. The first fully remote civil jury trial to reach a binding verdict finished in Florida in August. The jury awarded a Jacksonville woman $354,000, but the defendant did not appear to defend himself. (You can safely assume that the verdict would have been much different if he had an attorney arguing his position.) In August, Texas conducted the country's first criminal trial via Zoom. The jury in Travis County (Austin) found the defendant guilty in a simple traffic offense in a Justice of the Peace Court. The trial was an experiment. Again, this was not a simple trial. The lockdown forced the legal world to quickly enhance its technology with positive results. For example, depositions, hearings, and trials that used to require driving to offices or courthouses can now be handled more expeditiously from homes and offices. The legal world of the future could conceivably be more streamlined, effective, and affordable. Despite their drawbacks, virtual personal injury trials can be an effective way of resolving disputes, especially given our current circumstances.

Disclosure of COVID-19 Symptoms

Judges now have the power to compel anyone involved in a case to tell the court if they have had any COVID-19 symptoms in the recent past. They must also tell the court if they have had close contact with anyone who had the virus or exhibited symptoms. The emergency order gives a list of the well-known symptoms.

What the future holds

The Texas Office of Court Administration made a number of recommendations about court proceedings during the health crisis in a report in August. The Supreme Court adopted most of these. The provisions will have a significant impact on trials in Texas in the future.  There are obvious problems conducting live trials. A federal court in Sherman had to postpone a trial today when at least one juror and attorney became ill. And we know that many people are infected but are asymptomatic or have false negative tests. The judge noted that his Eastern District of Texas (which covers North Texas over to Beaumont and up to Texarkana) has conducted 20 total trials in the past five months. In a typical year, that number would probably be at least 200. This most recent Supreme Court order expires on December 1st. With the rapid upswing in COVID-19 cases, it is not clear if the Supreme Court will allow in-person proceedings. It is hard to fathom that people will want to sit in a room downtown, even if distanced and wearing masks, for extended periods of time. Most people don't even want to go into a grocery store or sit on a plane. In-person jury trials should be postponed until the COVID-19 infection rate is drastically cut. Once there has been a huge reduction in the number of people who have been infected, we are likely to see a swift return to the courtroom across the state. Through October, there have only been approximately 100 jury trials across the state. As a result, there is a tremendous backlog of cases awaiting trial. The number continues to grow. We have to allow injured people their constitutional right to a fair and impartial jury trial. This is a serious problem that the legal community must solve. Contact our office if you need any assistance with your Texas personal injury case.

In another sign of the epochal impact of the coronavirus, the Supreme Court is conducting its hearings via teleconference for the first time in its history. But sadly, with all the high-tech wizardry that is available and expected in 2020, the nine justices and attorneys were still not able to be seen by the public. The Texas Supreme Court and several Texas and federal courts of appeal have already conducted and livestreamed hearings on You Tube. And many other appellate courts have videotaped and audiotaped their hearings for years. So it is hard to believe that the U.S. Supreme Court is the only branch of government that has always restricted Americans' right to see it in action. It seems to be operating in a technological Stone Age. In this video-drenched world, we take it for granted that we can watch everything. For example, try to imagine only listening to the impeachment hearings or a presidential news conference. Still, allowing the public to finally get to hear the guarded justices ask questions was a quantum leap forward for the tradition-bound court. It reminded me how my world opened up when I won a newfangled transistor radio when I was 10 years old in 1964!

I have been asked by several clients if the coronavirus will affect their car wreck cases. No one knows as we are in uncharted territory. On top of the anxiety we are all living through, as a Fort Worth personal lawyer, I am very concerned how the virus could affect injured people's medical treatment and personal and financial outcomes. Here are some specific questions I have.

       1. Will fewer police respond to crashes?

It is essential that the police come to the scene of a crash and determine which driver was at fault. Without a favorable police report and officers who can testify in court, a car accident can become a "he said/she said" dispute. These are often denied by the other driver's insurance representatives so a lawsuit must be filed. Juries may not know which driver to side with. Furthermore, the police report contains important information that the car accident lawyer can use to help his client win the case. This includes the names and identifying information about all drivers, insurance policies, date, time, location, speed limit, weather, vehicle damage, witness's observations, admissions of fault made, injuries reported, alcohol use, etc. My office obtains the police report for our clients at no charge. The sooner we get the report, the sooner we can get to work.

When has a trial lawyer represented his client too zealously?

The Texas Supreme Court heard arguments Friday here in Fort Worth in the nationally-watched sanctions case of Brewer v. Lennox Hearth Products. There was a packed courtroom and an overflow crowd at Texas A&M Law School. The Court's decision will set boundaries on just how far a lawyer can go to win a trial. And making the hearing even more sensational, the attorney in question, William Brewer III of Dallas and New York City, has often been in the headlines, most recently while representing the National Rifle Association. Background: Mr. Brewer represented a company that was sued after lighting hit a house, causing it to explode in Lubbock in 2012. Tragically, a young man died. The family filed a wrongful death and products liability lawsuit claiming the pipe was defective and that other parties were negligent. Brewer hired a company which conducted a poll of Lubbock residents just before trial. When the plaintiffs found out, they filed an emergency motion for sanctions against Brewer. The case settled out of court. The court heard days of testimony on the sanctions motion. Brewer said that the poll was merely designed to test his litigation themes and the questions were random and balanced. While he admitted that he had reviewed the questions, he said that an independent polling company selected the people called and that other law firms did polling before trials. Further, no court decisions or disciplinary rules prevented him from doing the survey. However, the plaintiffs claimed the telephone survey was an unethical "push poll" designed to taint the jury pool and intimidate witnesses for the plaintiffs. After hearing days of testimony, including from Brewer, the court found that Brewer's behavior was unprofessional and unethical. It wrote that the poll and the firm's other activities could have tainted the jury pool and affected the verdict. The court fined Brewer $133,000 for attorneys fees and expenses and even ordered Brewer to attend remedial ethics classes. Brewer appealed. The court of appeals in Amarillo affirmed the punishment and increased the amount to $177,000 due to additional legal fees. The court foreshadowed its opinion by quoting the Texas Constitution's guarantee that the right of trial by jury shall remain inviolate. That fundamental pillar of our legal system is embodied in the 7th Amendment of the United States Constitution. The court upheld the decision and Brewer appealed to the Supreme Court. Four major trial attorney organizations filed a "friends of the court" brief opposing Brewer's conduct.

Fort Worth hearing:

The justices grilled both sides on these key questions: 1. Should an appellate court be allowed to review the trial court's role as fact-finder in sanctions cases? 2. What requirements should be set before a lawyer is sanctioned? 3. Was the telephone survey a balanced survey of potential jurors or a biased attempt to control their opinions? 4. If a trial settles out of court, does the allegedly offending attorney still interfere with the fairness of the trial? 5. Should all focus groups, mock trials, internet research into potential jurors, and polls be outlawed?

Duty to act zealously

Lawyers are held to the highest of professional conduct codes, perhaps the highest of any profession. The very first tenet in the Texas Rules of Professional Conduct is that lawyers must represent their clients competently and diligently. There can be gray areas involving legal ethics and almost every possible question has been answered by the Texas Center for Legal Ethics. The very existence and future of the court system rests on attorneys' ethical behavior. The lawyer is an officer of the court and must act as the guardian of our legal system. Furthermore, the attorney is a member of the community at large who must uphold the system of justice and make sure that its image is not tarnished. The decision by the Supreme Court will provide badly needed guidance to the Texas legal community.

The governor's final day to sign or veto bills passed by the state legislature was Sunday. Fortunately, the right of Texans to access the courts and recover damages was not adversely affected. Of the 7,500 bills introduced and 1,400 passed, here are several that affect the car and truck crash cases we have specialized in for almost 40 years at Berenson Injury Law. HB 1693 AFFIDAVITS TO PROVE MEDICAL RECORDS AND BILLS The plaintiff must file his medical records and bills with affidavits proving that the service was reasonably priced and necessary and itemize how much of the bill was paid and how much is due. The new law accelerates the filing deadlines by requiring that affidavits be filed 90 or 120 days after the defendant's answer is filed/experts deadline. SB 2342 EXPEDITED ACTIONS and JURY PANELs - Effective on 9/1/20 A new procedure where cases requesting damages of less than $100,000 can be expedited applies to cases with requested damages up to $250,000 and the limits of county courts at law are increased to that amount. The limit for justice of the peace courts doubles to $20,000. Six-person juries used in county courts at law will expand to 12 people. Effective January 1. SB 891 NEW WAY TO SERVE DEFENDANTS VIA FACEBOOK AND STATE WEBSITE and NEW COURTS A defendant can be notified on social media or by publication on a website operated by the state for certain cases (none involving personal injury). Further, certain counties will be granted new district and county courts and judges get pay raises. HB 2929 HOSPITAL LIENS - Effective on June 10, 2019 The Texas Property Code regulates how hospitals can secure payment by filing a lien even if the patient was only admitted to the emergency room. The amount the hospital can recover is capped at 50% of the total recovery and the protection in Civil Practices & Remedies Code Section 146.003 cannot be overridden. Became effective June 10th. HB 259 NAMED DRIVER POLICIES Some auto liability companies have sold "junk policies" which excluded many drivers from coverage. This law prevents these policies from being sold. HB 1631 RED LIGHT CAMERAS This controversial issue and the Supreme Court case which had just held that they were legal may increase the number of intersection collisions. These new laws become effective on September 1st unless otherwise noted.

The following bills did not pass:

HB 649 AUTO LIMITS DISCLOSURE Would have permitted a claimant to learn if the at-fault driver had liability insurance and how much his policy limit was. HB 3832 / SB 1215 MEDICAL BILLS NON-PAYMENT Would have required the court to punish the plaintiff for not having his medical bills paid by his health insurance company, even if there was a valid reason that did not happen. HB 1739 UNINSURED/UNDERINSURED LAWSUITS Would have removed the requirement that an insured driver have to first obtain a judgment against the responsible driver before he could file for benefits under his UM/UIM policy. HB 1348 AUTO REPAIRS Would have required car repair shops to use quality parts and also permit policyholders to pick their own repair shop. HB 2374 "SWOOP AND SETTLE" Would have stopped auto liability companies from pressuring injured people to release their claims immediately after the collision. Thanks to the Texas Trial Lawyers Association for this analysis. Related content: New laws that made Texas roads safer this year  

In an unanimous decision in Garcia v. City of Willis #17-0713, the high court dismissed a lawsuit Friday that would have eliminated the widely despised red light cameras in Texas. The plaintiff had filed a class action lawsuit to declare they were unconstitutional and sought to obtain a refund of the millions of dollars of fines Texas motorists have paid. On procedural grounds, the Supreme Court found the plaintiff lacked standing, chose to pay his fine and avoid the required administrative hearing, and governmental immunity barred the reimbursement claim. The decision follows other attempts to outlaw the cameras. For example, in February the Seventh Circuit Court of Appeals in Chicago called a similar argument "a dud" and noted that the advantages of the cameras outweighed other concerns.

UnitedHealthcare slammed for violations of federal and Texas law

A federal judge in Northern California released a 106 page decision Tuesday which held that UnitedHealthcare fraudulently created guidelines that denied benefits to its members solely to save money.  The court found that United's mental health subsidiary had used self-serving guidelines to justify the denials of badly needed mental health treatment for over six years. The guidelines conflicted with generally accepted medical standards as well as federal and state law, including our statutes in Texas. The story sounds like it came from a John Grisham novel like The Rainmaker. Judge Joseph Spero wrote that the primary factor in the development of internal company guidelines was the maximization of profit, not adopting generally accepted medical practices. The provider had focused on its 'bottom line as much or more" than the health of its policyholders and had illegally denied badly needed treatment to thousands of them. UnitedHealthcare is the nation's health largest insurance company and is one of the top 20 largest corporations in the United States. This year its revenues are estimated to be a whopping $245 billion.

The case

The class action lawsuit was filed by two groups of patients in 2014 on behalf of 50,000 consumers who had been denied coverage for their mental health treatment and substance abuse rehabilitation. They alleged that United's guidelines violated federal ERISA and four state's laws by requiring them to have first suffered an acute crisis and then continually progress toward recovery. Further the guidelines did not consider the unique needs of children and excluded payments for services that maintained a level of function or prevented deterioration.
United's motion for summary judgment on claims that it had violated Texas law was denied. The court found that all of United's experts, including numerous physicians, were deceptive when they testified. The court will decide damages and remedies in the coming months. The only saving grace for United was that the plaintiffs were not entitled to seek disgorgement of the profits the massive corporation made when it denied claims. United has announced that it is appealing the decision. The decision and all documents in this landmark case are here.

Impact of decision

Legal commentators have termed the ruling as one of the most important and well researched federal decisions against an insurance company regarding mental health issues. Patrick Kennedy, the former U.S. representative from Rhode Island and patient advocate, termed the decision "breathtaking" and compared it to the Supreme Court's landmark Brown v. Board of Education decision. It hasn't been a good quarter for United in court. In January, the California Supreme Court fined United $91 million for a whopping 900,000 plus violations of state law and denials of payments.

How this decision might affect you

If you have been denied health insurance coverage, perhaps this decision can be used to allow you to recover the benefits you are due. You can be sure other health insurance companies were following this case closely and may already be rewriting their legal and financial strategies. Hopefully, a similar lawsuit will be filed in Texas and a decision will follow after benefits for physical injuries such as those suffered by people after car crashes and other personal injuries are wrongfully denied. This is unfortunately routine in our state. Stay tuned.

If you have been injured in a car or truck accident, you will have a lot of questions especially these:
  1. Will I have to go to court?
  2. How much money can I receive?
  3. How long will it take?
This post answers the first question and the other two are addressed in these posts: How much money is my car accident case worth? The litigation process

Will my case settle out of court or go to a trial?

There are two ways that someone can collect his or her damages: an insurance company can pay them an agreed amount of money or a jury can award them monetary damages. Statistics show that about 99% of all injury cases settle outside of the courtroom, usually before a lawsuit is filed. So the chances of your case settling are excellent. But that answer as well as the amount of money you might receive and the length of time the process may take depend on many factors including the following:

Key information that is needed

  • Your case's strengths and weaknesses;
  • Your liability facts and vehicle damage;
  • Your chance of winning a trial totally or partially, as negligence is attributed between all drivers and companies involved;
  • Your injuries - are they permanent or temporary, hard tissue or soft tissue, did you have surgery, etc.
  • Your medical expenses - how many are outstanding, were paid, and were written off;
  • Your lost wages, lost job benefits, and lost capacity to earn a living;
  • Your disability, disfigurement, loss of consortium, and other damages;
  • Your financial condition - your need for a quick recovery of money or your ability to wait for a trial;
  • Your desire to go through the usually frustrating and slow court process;
  • Your injury lawyer - his experience, ability, and reputation;
  • Your negotiating ability (if you are trying to represent yourself) and knowledge of legal, insurance, and medical issues;
  • Your goals; and
  • The other driver's/company's insurance company insurance policy limits and his/its assets
We at Berenson Injury Law evaluate these and other variables when we first meet with our new clients. We ask if our clients would prefer us to try to get the maximum amount of money from the insurance company or sue. After practicing personal injury law for almost 40 years, Mr. Berenson has never had a client who wanted to go to court if he could avoid it. Later, we analyze these variables and recommend that our clients take their case to court or accept a settlement offer. We then try to reduce outstanding medical bills and perform other services to make our clients more money. If you are undecided between entering into settlement negotiations, accepting a settlement offer, and going to a jury trial, we are happy to analyze your car or truck accident in a free no-obligation meeting or phone call.
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